Petition for Writ of Certiorari — Hurley v. Motor Coach Industries, Inc.

()

00 955 NOV 29200

senennemmammanammaliild

In THE ;

Supreme Court of the Hnited States

OcToBER TERM, 2000

No.

FREDERICK A. HURLEY and CHRISTINE A. HURLEY,

Petitioner,

VS.

Motor Coacu INDUSTRIES, INC.,

. Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

ARTHUR H. BRYANT Tuomas C. DEVoTO

TRAIL LAWYERS FOR (Counsel of Record)

PuBLic JusticE, P.C. | Law Orrices oF Tuomas C.

1717 Massachusetts DeVoro, P.C.

Avenue, N.W. 9322 Manchester Road

Suite 800 St. Louis, Missouri 63119

Washington D.C. 20036 (314) 961-0097, Ext. 12

(202) 797-8600 HowarpD L. PAPERNER

LAW OFFICES OF

HOWARD PAPERNER

9322 Manchester Road

St. Louis, Miccouri 63119

(314) 961-0097, Ext. 13

Attorneys for Petitioner

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477

eee

QUESTIONS PRESENTED

1. Whether be United States Court Of Appeals for the

Seventh Circuit erred by holding, in direct conflict with

this Court’s opinions in Freightliner Corp. vs. Myrick,

514 or US. 280 (1995) and Geier vs. American Honda

Motor Co.,529 U.S. 1913, (2000) that petitioners’ claims

were preempted by the FMVSSA because the petition-

ers’ claim with regard to defective design related to the

issue of driver’s compartment “crashworthiness” which

is an unregulated area under the Federal Motor Vehicle

Safety Standards Act and therefore cannot be pre-

empted solely by regulations involving passenger re-

straint, i.e. seat belts, air bags and etc. on the basis of

the manufacturer’s made a choice of an approved pas-

sive restraint system without any showing on the part

of the manufacturer that it complied with the perfor-

mance standards of the Act itself. Petitioners’ claim is

not that the vehicle in question needs an airbag but that

the entire driver's compartment needs to be redesigned

because as configured by the manufacturer it cannot

meet the performance requirements of the Act. Peti-

tioners’ total redesign of the compartment requires

greater passive restraint than a two point seat belt in

order to meet the performance requirements. The two

point seat belt is one of the manufacturer’s design

options assuming that it meets the performance stan-

dards of the Act. In Petitioners opinion a total redesign

based upon an alleged fundamental failure to perform

within the published performance standards is a case of

first impression before this Court.

2. Whether be United States Court Of Appeals for the

Seventh Circuit erred by holding, in direct conflict with

three other United States Circuit Courts of Appeals and

recently one intermediate state Court of Appeals both

before and since this Court’s ruling in Geier, supra, that

a manufacturer’s choice of passive restraint (safety)

equipment is paramount over any issue with respect to

the performance of the equipment in terms of the Safety

Standard’s published performance requirements. In

other words a manufacturer is not required to prove

that its choice was appropriate and that prior to its

choice that it tested the equipment as required and as

set forth by the act and, most importantly, that the test

results revealed that the choice of passive restraint

equipment, in fact, met the performance standards of

the Act. According to the Seventh Court of Appeals a

manufacturer must only prove that it chose a design

specified as an alternative equipment design within the

act to avoid any further liability. Furthermore, the

ruling eliminates any simple claim that the crash took

place within the published performance guidelines and

the equipment either malfunctioned or simply did not

work. This was clearly not the intent of Congress.

3. Whether the United States Court Of Appeals for

the Seventh Circuit erred by holding, in direct conflict

with the published legal opinions of the Government of

the United States, Department Of Transportation, Na-

tional Highway Traffic Safety Administration and the

Department Of Justice, that a manufacturer’s choice of

equipment is the lynch pin for resolution of issues

relating to compliance and therefore preemption. It is

the government’s position that performance standards

set the actual criteria and the real issue is performance

vs. failure to perform. Failure to perform is of para-

mount concern to the government, not design criteria in

the abstract.

PARTIES TO THE PROCEEDING

The parties to the proceedings below were petitioners

Frederick A. Hurley and Christine A. Hurley (at his

appellants) and respondent Motor Coach Industries,

Inc. (as appellees).

1.

- TABLEOF CONTENTS

The Decision below Seriously Confuses the

Federal Motor Vehicle Safety Standards Act’s

Performance Standards and Its Design Stan-

dards, thereby Incorrectly Basing its Analy-

sison Design Standards and Criteria versus

Performance Standards and Criteria con-

trary to the published opinions of this

CONDE iin ee eho as

The Decision below Conflicts with the Deci-

sions of Three Circuit Courts of Appeals and

One State Court Of Appeals Which Has Ad-

dressed the Issue of performance ...............

The Decision below Conflicts with the Pub-

lished Legal Opinions of the United States

Government and Most Importantly the De-

partment Of Transportation and the Na-

tional Highway’s Traffic and Safety

Administration Themselves ....................00.

11

12

20

25

TABLE OF AUTHORITIES

Page(s)

Cases

Choate vs. Champion Home Builders Company,

222 F. 3d 788, 793 (10 Cir.(Okla.) 2000) .. 22

DePaepe vs. General Motors Corp., 141 F. 3d 715

(72D-TRG) CT Gar. BGG cccxcanceccsstenessiinsciannbia 19

Freightliner Corp. vs. Myrick, 514 U.S. 280, 288

290, 115 S. Ct. 1483, 1486-1488 (1995) ..... passim

Geier vs. America Honda Motor Co., 120 S. Ct.

FOED CIO nccecceccsninsceuecsaptonnnietideientanieiiiontinl passim

Gracia vs. Volvo Europa Truck, N.V., 112 F. 3d

BHA CT Cle, BGG) avicscodaseeiadincstclcetiesteaee passim

King -v- Ford Motor Co., 209 F.3rd 886 (C.A.6

(His7.) BBGD .nrccrscrrnsintsdicntencenmieninaniiiiiildnatines 22,23

Oakes v. General Motors Corp., 262 Ill. App. 3”

372, 633N.E.2d 1277 (1st Dist. 1993)......... 2

Perry vs. Mercedes-Benz of North America, Inc.,

957 F.2d 1257, 1266-68 (5 Cir. 1992) ....... 20-23

Rogers -v- COSCO, Inc., 2000 WL 1641158 (Ind.

Bap BOG DD dnscsccicecsnstnisssitigteatiatanhibitincwsbteadinaibe 24

Statutes

Title 49 U.S.C., Section 30108 ..................c00000 1

Title 49 U.S.C., Section 30103 (b) ...................... 1

Title 49 U.S.C., Section 30103(e) ...................00- 2

— vii—

Regulations

FMVSS 208 (49 CFR 571.208\Crashworthi-

OGD) nascsctninccsccensdoccccctéaincsinnsbstekiacnniunaeitea passim

it TAD os seicncnnncencociesiscndssiapsstiimasanieniaiinn 17

Soames BR ccrnccinccsscevsaitcianatpeiachmeaniianean 17

Bhoendare BE occeccsoncterceenseiteteeaageaal 18,21

Donnell BG cc cccisccrecceicsssitcinncitsditshcabiclacsliees 3,18,21

Miscellaneous

Rule 12 (b) of the FRCP .........ccccccssessscesescsosessoeses 16

Wood vs. General Motors Corp., No. 89 — 46

(October term, 1989), Brief for the United

States as Amicus Curiae. ...........ccccccceseeeeeees 13,25

Freightliner Corp. vs. Myrick et al. No. 94 — 286

(October term 1994) Brief for the United

States as Amicus Curiae ............-...sesesesse000 14,25

Geier vs. American Honda Motor Co., Inc. No. 98

— 1811 Brief for the United States as Amicus

gS NRPCST ECE Se sePate aa ARS © EU Se OO. 15,25

Petioners’ Petition for Rehearing EnBanc ........ 16,21

OPINIONS BELOW

The opinion of the Court of Appeals (App. 1- 13) is

reported at 222 F. 3d377. The order of the District Court

granting defendant’s motion for summary judgment

(App. 14-26) is not reported.

JURISDICTION

The Court of Appeals entered judgment on July 25,

2000 and denied Rehearing and Rehearing en Banc on

August 31*, 2000. This Court has jurisdiction under 28

U.S.C. section 1254.

STATUTORY PROVISIONS INVOLVED

Motor Vehicle Safety Standards Act originally codi-

fied at 49 U.S.C. 1381 and re-codified in 1994 at 49

U.S.C. section 30101 et. seq. The supremacy cause and

the savings cause may be found at 49 U.S.C. 30101(a)

and 49 U.S.C. 30101(e) respectively.

49 U.S.C. section 30103. Relationship to

otherlaws .

(b) Preemption. (1) When a motor vehicle safety

standard is in effect under this chapter, a State or

a political subdivision of a State may prescribe or

continue in a fact the standard applicable to the

same aspect of performance of a motor vehicle or

motor vehicle eight meant only if the standard is

identical to the standard prescribed under this

chapter. However, the United States government,

a State, or a political subdivision of a State may

prescribe the standard for a motor vehicle or motor

vehicle equipment obtained for its own use that

imposes a higher performance requirements than

that required by the otherwise applicable standard

under this chapter

pa en

(2) AState may enforce a standard that is identical

to a standard prescribed under this chapter.

* *£ *

(e) Common Law Liability . Compliance with a

motor vehicle safety standard prescribed under

this chapter does net exempt a person from liability

at common law.

* £¢£ * *

Some of the applicable preemption cases, including

the decisions by the two courts below, discussed the

provisions as codified after 1994. However, the Geier

opinion, supra, discusses the provisions as codified prior

to the 1994 recodification. This petition, therefore, uses

the citations employed in both the pre and post 1994

recodification.

STATEMENT OF THE CASE

Petitioners’ cause of action in the underlying lawsuit

was brought pursuant to the Illinois “crash-worthiness”

and “enhanced injury” doctrines as set forth in Oakes v.

General Motors Corp., 262 Ill. App. 3" 372, 633 N.E.2d

1277 (1st Dist. 1993). In their complaint and in the

matters briefed below Petitioners are contending that

the vehicle is under designed (a manufacturing defect)

wherein the driver’s compartment of the bus is caused

to collapse in and upon the driver in relatively low speed

collisions involving impacts with high profile objects

such as the rear end or sides of tractor/trailers. There

are no standards in Title 49 C.F.R. Chapter 571 that

create a standard of performance relating to the con-

figuration and structure of the driver’s compartment

and its ability to remain intact and not to be structurally

ns ate

compromised in a low speed collision. However, clearly

those standards that do exist presume structural integ-

rity of the drivers’ compartment or they wouldn't make

any sense in any regard. Sections 571.208 S$ 4.4.3 and

4.4.3.1 relied upon by Respondent MCI, and errone-

ously by the Courts below, relate solely to “crashworthi-

ness” in conjunction with driver and occupant passive

restraint systems. The purpose of the standard is to

keep the driver and passengers (occupants) of the ve-

hicles inside the vehicle in the event of a frontal or side

impacts of 30 miles per hour. 49 C.F.R. 571, 208 (6.1)

Perhaps, more importantly, if under the state com-

mon law a manufacturer is required to redesign the

front of the bus so as to deal with the structural under

design of passenger or driver compartment and that the

alternate design causes increased forces on the driver to

such an extent that the performance requirements of

Sections 5 & 6 of the standards themselves can no longer

be met with any of the choices of driver restraint system,

i.e., two point seat belt, three point seat belt, airbags or

a combination of the same, necessitating the use of two

additional restraints, does the cause of action fall to the

doctrine of implied preemption as set forth in this

Court’s recent decision of Geier, supra, particularly in

light of the failure of the original design to perform as

required by the performance sections of the standards.

In the redesign proffered by Petitioners the forces on the

computer generated anthropomorphic dummy are within

the standards set forth in 40 C.F.R. 571.208 Sections 6

and 7 and they meet the criteria of 4.4.3 & 4.4.3.1 as

well. There is absolutely no evidence that the bus as

designed meets those critical performance standards.

Plaintiffs contend the additional restraints do not in

any way cause the redesign to be preempted under the

te ae

Safety Acts preemption clause. The redesign is in

complete conformity with the design criteria of the act.

Does the option or choice of design without any evidence

of proof of the performance, infallibly defeat the real

purpose of the regulatory scheme, i.e. “safety perfor-

mance”?

UNDISPUTEDFACTS

For the sake of clarity and simplicity, the parties will

be referred to as they were below in this trial court.

Plaintiff Frederick A. Hurley was the driver of a Grey-

hound Lines inter-city bus manufactured by Defendant

Motor Coach Industries. The vehicle in question was

manufactured in 1992. The accident that gives rise to

the cause of action took place on February 21, 1993 in

Madison County, Illinois wherein the bus Plaintiff Fred

Hurley was operating collided with the right rear of a

consolidated Freightways tandem tractor/trailer that

had-jack-knifed and was blocking both lanes of north-

bound and eastbound Interstate 55-70 at or near mile

marker 17. The collision took place on the outward side

of a blind turn on the highway where the roadway

passes underneath old Highway U.S. 40. Plaintiffs’

engineering evidence is that there are only fourteen

inches of space between the driver’s feet and the inside

front partition wall of the bus. All the engineers in-

volved agree that the speed of the bus at impact was 33

miles per hour and that the front bumper of the bus

under-rode the bottom iron structure of the floor of the

rear of the tractor/trailer. The engineers further agree

that the actual Delta-V ( for change in velocity of the bus

at impact) was only 23.5 miles per hour. The 23.5 mile

an hour Delta-V is the equivalent of a crash barrier

speed of 23.5 miles per hour. The performance stan-

dards of the Act require the driver to be uninjured in a

30 mph barrier collision.

Reae RS

Plaintiffs alleged that the entire front end of the bus

and, in particular, the driver’s compartment was “under

designed” and therefore not “crash worthy” which defect

caused or “enhanced” plaintiffs severe injuries to his

lower extremities. As designed by Defendant, the front

of the bus above the floorboard of the driver’s compart-

ment consists of minimal structure and provided very

little or no protection to drivers of the bus in front end

impacts with high profile objects such as the rear of over

the road trailers when the front bumper of the bus under

rides the iron or steel floorboard structure of the trailer

resulting in an impact which takes place on the driver's

compartment above the floorboard and not on the bumper

and lower section of the front of the bus. Conversely,

that portion of the front of the bus under the driver's

floorboard and in particular the front bumper of the bus

provide substantial structural and impact absorbing

capabilities. Plaintiff-Appellants allege that serious or

even fatal injuries can and do result from relatively low

speed impacts (in the 15 to 30 mph range) in collisions

with high profile objects. As part of their case in chief,

plaintiffs consulting engineers submitted an entire re-

design of the front of the bus above the driver’s compart-

ment floorboard and specifically the driver’s compart-

ment. One of the components of the redesign was a

“driver's cage” to be incorporated within that portion

main framework of the existing design above and below

the driver’s floorboard. All components and structure

above the floorboard other than such items as wind-

shields, windows, the outer “skin” and plastic dash

components, ventilation ducts were retained and the

driver’s cage was merged into the existing structure

both above and below the floorboard. A further sub-

component of the driver’s cage is an airbag which be-

comes necessary only by reason of the new design which

iiss

will cause increased deceleration of the driver as front

end crush is moved to the rear of the driver. It is the

position of Plaintiffs’ engineers that the addition of an

airbag to the existing MCI design of the bus would serve

no purpose whatsoever. Other than the addition of an

airbag, and a three-point seatbelt, all the other ele-

ments of the redesign are not mentioned in the FMVSS,

particularly the driver’s cage portion of the redesign.

Thus, the issue devolves to the question: are airbags.

preempted when they becorhe an integral and compo-

nent part of equipment and a design to deal with a defect

and safety issue that is not mentioned or otherwise

addressed in the FMVSS, i.e. a total under design of the

entire front structure of the bus?

Christina Hurley is Fred Hurley’s wife and her claim

is based upon the Illinois law of loss or consortium and

services owing to the severe injuries to her husband.

The Hurleys’ claim in this matter is that the front of

the bus above the floor Lard is woefully under-designed

and as such is a manufacturing defect for which there

are no federal standards and in particular, that Federal

Standard 208 bears no direct application to the same

proffered redesign. Plaintiffs have attempted to incor-

porate those portions of Defendant MCI’s design which

represent good engineering considerations such as the

engine in the rear over the drive train and the front

driver’s view being preserved to the utmost with the

driver sitting forward of the front wheels of the vehicle

maximizing the ability to observe traffic and pedestri-

ans in close proximity to the bus. Plaintiffs’ engineers’

design is intended, therefore, to simply increase the

structural capacity of the vehicle to sustain an impact

from a high profile object such as the rear of a truck

trailer, or the corner of a truck trailer bed, or some other

ii ies

object which would impact on the driver’s compartment

either before or after the front bumper of the bus is

engaged. It is conceded the design proposed by Plain-

tiffs herein increases the deceleration forces on the

driver and as such it requires a re-design of the driver

restraint systems to keep the operator within estab-

lished deceleration and force guidelines. This petition

asks, can a manufacturer of a vehicle such as the one in

question be protected from a patently obvious perfor-

mance defect by a standard that has no applicability to

the performance issue being addressed. Moreover, how

can there be implied preemption when the design stan-

dard can still be met with a combination of the devices

that are available and offered under the standard itself.

Plaintiffs filed their lawsuit in the Circuit Court of

Madison County in the Illinois state court system in late

1994. The matter was removed by the defendants as

outlined in the Court of Appeais’ decision. (App. 3-4)

After extensive discovery, including multiple rounds of

expert witness depositions, the respondent MCI (Motor

Coach Industries) filed and amended answer raising 49

U.S.C. 30103 (b) for the first time. Thereafter, an

extensive summary judgment motion was filed by re-

spondent and briefed by the Parties. The District Court

granted Summary Judgment Oct. 1, 1998. The District

Court on page 10 of its opinion and order (App. 23-25)

clearly decided that this matter was preempted by

reason of the fact that a Plaintiffs’ cause of action that

is based upon a claim that the manufacturer’s choice of

safety equipment created an inherently dangerous ve-

hicle are preempted. The operative message in the

District Court’s opinion is that Plaintiffs cannot under

any circumstance criticize the choice of the manufac-

turer as it relates to passive restraint systems. In

omaha

reaching this decision the District Court specifically

relied upon the seventh circuit decision in Gracia vs.

Volvo Europa Truck, N.V., 112 F. 3d 291,296 (1997).

This is a particularly heinous result when the manufac-

ture is not required to prove that its choice met the

performance standards of the same act.

Timely notice of appeal was filed to the United States

Court of Appeals for the Seventh Circuit. This matter

was argued on the Thursday immediately following this

Court’s grant of certiorari in Geier vs. American Honda,

supra. The seventh circuit clearly waited for this Court’s

decision in Geier. The Court of Appeals affirmed the

trial court. (App. 1-13). In its decision the court

acknowledged that if preemption existed that it would

be implied preemption relying on Geier, supra. How-

ever, most importantly, just a his the trial court below

they concluded that the primary issue relative to pre-

emption must be determined by the issue of choice of

design options. The court specifically held that ruling of

this Court in Geier is consistent with their decision in

Gracia vs. Volvo Europa Truck, N.V., supra, and that

they would have reached the same conclusion in any

event strictly based upon “choice” or manufacturer's

options.

“The point is that, as in Geier, the decision to leave

options open to bus manufacturers was made with

specific policy objectives in mind. Hurley’s suit, if

successful, would undermine that policy objective

and is therefore preempted.

Even before Geier, our own case law would have

led us to the same result. See Gracia vs. Volvo

Europa Truck N.V., 112 F. 3d 291 (7 Cir. 1997).

The arguments Hurley offered to distinguish Gracia

a

are the same at his those he would raise to avoid ~

Geier, and so we addressed them briefly. In his

view, FMVSS 208 does not speak to his particular

problem. He maintains that his theory of

uncrashworthiness is limited to the ability of the

bus to protect the driver in high-profile impacts (i.e.

impacts with trucks or other large vehicles were the

point of collision is above the bumper). We are

unimpressed by this distinction. The ability to

withstand high-profile impact is one aspect of that

general topic of crashworthiness that at MVS 208

addresses. Otherwise, the option (emphasis added)

that both Geier and Gracia preserved for manufac-

turers would be eviscerated by the particulars of

the crash in question. If a vehicle meets the basic

crashworthiness standards of FMVSS. 208, the

after the fact details of the Plaintiffs’s particular

injuries do not, and cannot, matter. (Emphasis

added). As Geier (and Gracia) held, a state law tort

action that forecloses an option (emphasis added)

left open to the manufacture is preempted under

FMVSS 208. (App. 11).

Therefore, it is clear that both the District Court and the

Court of Appeals based their decision of implied pre-

emption largely, if not exclusively, on the issue of loss of

choice. Neither the Department of Transportation,

NHTSA, or this Court have ever relied solely upon

choice or option as the litmus test for preemption under

the Act. As such, it is respectfully submitted that the

decisions of both courts are, therefore, fundamentally

unsound, more importantly, fundamentally unsafe Geier

(and Gracia) held, a state law tort action that forecloses

an option (emphasis added) left open to the manufac-

ture is preempted under FMVSS 208. Therefore, it is

pan,

clear that both the District Court and the Court of

Appeals based their decision of implied preemption

largely, if not exclusively, on the non-issue of the

manufacturer’s loss of choice. Neither the Department

of Transportation, NHTSA, nor this Court have ever

relied solely upon choice or option as the litmus test for

preemption under the Act. As such, it is respectfully

submitted that the decisions of both courts are, there-

fore, fundamentally unsound, more importantly, funda-

mentally unsafe for the consuming public.

we ce

REASONS FOR GRANTING THE WRIT

When Congress enacted the Safety Act in 1966, it

unequivocally discussed safety in terms of “performance

standards” and directed the Secretary of Transporta-

tion to set those standards. Standard 208 is simply

entitled “Occupant crash protection” both section I and

section 2 of the standard set forth “performance stan-

dards” and in section 2 be “design criteria” to the extent

that the secretary can “specify equipment requirements”

that meet the crashworthiness performance require-

ments of the standard. Both the Seventh Circuit Court

Of Appeals and the District Court Opinions contravene

these plain words and conflict with the rulings of two

other Circuit Courts of Appeals and one State Court Of

Appeals that have addressed this Court’s ruling in Geier

vs. American Honda, supra. The Seventh Circuit’s rul-

ing also demonstrates and increases the confusion cre-

ated by this Court’s decisions in Myrick and Geier

concerning the Safety Act’s preemptive affect. Finally,

the decision blow incorrectly answers an important

federal question that this court addressed, in part, that

has not been, but should be, decided by this Court:

whether Congress intended the Safety Act to preempt

state common law claims when a manufacture uses

equipment specified by the Secretary of Transportation

with out any concomitant showing that the equipment

chosen by a manufacture also met the performance

standards specified and designated by the Secretary.

This court should grant review to resolve the conflict

among the federal courts of appeal and the obvious

potential conflict that will arise in the state courts oflast

resort as exemplified by the Indiana Court Of Appeals.

ae ee

L TheDecision Below Conflicts with the Deci-

sionsofthis Court Involving Implied Preemp-

tion andisa Case ofFirst Impression Regard-

ing an Allegation of Structural Defect Arising

out ofa Complete Failure ofa Vehicle To Meet

the Minimal Performance Requirements of

the Act. The Redesign of the Entire Driver’s

Compartment Requires The Use of Multiple

Passive Restraint Devices All of Which Are

Specified in the FMVSS.

The Court of Appeals’ decision expands and exacer-

bates the misconception among the various circuit courts

of appeals concerning “choice” of options as the standard

for compliance and therefore preemption and it will

most certainly create conflict with the various states

courts of last resort.' This court finds itself in a unique

This court is obviously familiar with the unsettling history of

preemption as it relates to the FMVSS and the Act itself. Prior to

Geier many of these states courts of last resort chose to interpret

the savings clause literally and to preserve the right of the citizens

of their respective states to maintain a common law products

liability cause of action alleging a failure to use appropriate safety

equipment in vehicles sold for use in their states. See Drattel vs.

Toyota Motor Corp., 699 NE 2d 376, 381 (New York. 1998) which

contains an exhaustive dissertation and listing of all the states

that denied express or applied preemption despite rulings by the

United States Circuit Court of Appeals to the contrary. There was

a clear dichotomy of opinion that in the federal courts of this

country that preemption existed and in the state courts of this

country that the savings cause prevailed. Thus, the litigant in the

state court would be entitled to go to the jury a neat issue of defect

and the litigant in the exact same state in a federal court would be

subjected to summary judgment without proof and without a trial.

This is a particularly heinous result when the court houses are

across the street from each other as they are here in the City of St.

Louis. There’s absolutely no reason to believe that the state

(Footnote 1 continued on next page)

skill aces

position to clarify this issue immediately and without

any harm to its decision in Geier. As indicated, the

history behind this Court’s decisions on this issue has

clearly demonstrated a lack of finality on the issue and

has, in fact, often resulted in ongoing confusion which

certainly was the exact opposite result that this Court

intended whenever it accepted Certiorari on an issue

involving conflict between the various circuit courts of

appeals and state courts of last resort. Unfortunately,

when the fog is lifted a heavier and thicker smog roles

in. This Court need look no further than its history on

this issue as set forth in a trio of cases covering the last

ten years.” In Wood the United States took the position

that certiorari was not required due to the fact that

there was not any conflict between the various circuit

courts of appeals. At that time, for different reasons, the

various state courts of appeals and the federal circuit

courts of appeals were ruling in favor of preemption and

only one intermediate state court had ruled to the

contrary. Amicus brief of the United States (App. 53-63)

This Court next addressed this issue in Freightliner

Corp. us Myrick wherein the United States took the

express opinion that the Plaintiffs claims were neither

expressly nor impliedly the preempted because the

standards were expressly written in terms of perfor-

mance. It was the government’s position that if the

brakes on a vehicle failed to perform as required Plain-

tiffs claims of preemption would not be barred not only

as a matter of law but also as the public policy of

(Footnote 1 continued)

courts of last resort will apply the language of this Court’s opinion

on page 1918 of Geier suggesting that allegation of failure to

perform would not be preempted as a matter of law.

2 Wood us. General Motors Corp., Freightliner Corp. vs. Myrick,

and Geier vs. American Honda Motor Co., Inc.

an, ee

NHTSA. See the brief of the United States has Amicus

Curiae including footnote 10. (App. 64-73)

In the wake of Myrick, this Court declined to revisit

the issue of preemption under the Safety Act on at least

four separate occasions essentially determining that

the issue was not ripe for further review.* However, this

court did accept certiorari on Geier to resolve the clear

dichotomy between the United States courts of appeals

and the various states courts of last resort. It is respect-

fully submitted that this issue is ripe for determination

due to a disparity between at least three circuit courts

and one state intermediate court of appeals at this time

coupled with the ongoing potential for a lack of confor-

mity in other state courts of this country. The issue

before this court is one of substance over form. It is

always been the government’s position that perfor-

mance (substance) by the manufacturer in terms of the

_ performance standards would determine the liability or

lack thereof on a state law claim based on an alleged

design defect arising out of the failure to equip a particu-

lar vehicle with certain types of safety equipment. We

must reiterated that it has always been the position of

NHTSA that “state courts, however, are not precluded

by those (equipment) provisions from entering tort

judgments in cases raising the claim that a vehicle or

item of equipment was the defectively designed with

respect to the same aspect of performance”. See the

Amicus brief of United States in Freightliner Corp. vs

Myrick . (App. 67)

3 Volkswagen of America, Inc. vs. Hernandez-Gomez, 514 U.S.

1094, 115 S.Ct. 1819 (1995), Hernandez-Gomez vs. Leonardo 11,

185 AZ 509,917 P 2d (1996). (Cert. denied), Tebbetts vs. Ford Motor

Co., 140 NH 203, 665 A. 2d 345 (1995) (certiorari denied), and

Montag vs. Honda motor Co., Ltd., 75 F.3d 1414 (10th circuit)

certiorari denied, 519 U.S. 814 (1996)..

a

The government reiterated this position in Geier

stating explicitly” that petitioners’ (sic) claims are not

preempted merely because the Secretary made airbags

one of several design options that manufactures could

choose”. See footnote 18 on page 21 Amicus brief of the

United States in Geier. (App. 82) Itisinteresting to note

that in the same footnote to government goes on to state

that “The Secretary could have imposed performance

requirements that effectively required an air bag de-

sign”. In so doing they quoted from the congressional

record indicating that “performance standards expected

to affect design”. On page 21 ofits brief government goes

on to state unequivocally that when a performance

standard sets forth minimums frequently state law

claims cannot be preempted. This Court extracted the

government’s example relating to antilock brakes and

stopping distances out of its brief and inserted almost in

verbatim on page 1918 of its opinion in Geier. It is this

rule of law, i.e. substance over form, performance vs.

design that is given rise to the conflict which requires

this Court to intervene yet again in this complicated

area of law.

In Petitioners’ opinion, the primary difficulty with

any in depth analysis of any of these cases reveals that

often the Record on Appeal arose out of a summary vs.

plenary proceeding. Every time an appellate court passes

judgment on an entire class of cases without all of the

facts, the court potentially issues an uninformed ruling

which will mushroom at an alarming rate as the rulings

are passed from court to court, summary judgment to

summary judgment. An analysis of the facts is neces-

sary before an analysis of the law makes any sense in a

given circumstance. While this court has some of the

facts that relate to the accident in question, the record

iia.

is woefully inadequate particularly as it relates to the

defendant/appellee’s affirmative defense based upon

compliance with a single design standard of the entire

regulatory code. They put in the seat belt. They did

nothing more and they could accomplish no less because

there was nothing less to do other than not put in any

type of passive restraint. There is absolutely no evi-

dence that the respondent ever tested this vehicle to

determine whether or not it complies with the perfor-

mance aspects of the FMVSS. On the contrary, as will be

pointed out herein and as was established in our brief

and petition for rehearing, there is evidence that re-

spondent nevertestedthis vehicle. They have pleaded

that they met the requirements of FMVSS #208. Rule 12

(b) of the FRCP establishes that this is an affirmative

defense. The only proof to support that affirmative

defense is the installation of the manual, self-adjusting,

“Type I” lap belt. Once again, they have done nothing

more and they could not have done anything less.

The defendant’s reliance on the FMVSS requires

proof that they met the entire standard and not simply

the threshold factual analysis that they installed a

single piece of equipment “authorized” by the regula-

tory scheme. The FMVSS cannot be read piecemeal. The

regulations regarding “crashworthiness™ must be read

in their entirety and certainly together as they relate to

* There is no definition of crashworthiness in the standard.

However, at the National Highway and Traffic Safety

Administration’s Web page there is a definition of “crashworthi-

ness” in the area referred to as “research and development”. It

describes crashworthiness as the “use of occupant restraint

systems and changes to the vehicle structures to minimize the

severity of occupant injuries” (App. 51). In so doing, NHTSA

acknowledges the relationship between vehicle structure and

the passenger restraint system. Meeting the design standard of

the one without consideration of the other would be futile and

foolish.

ee ren

the scope and purpose of the standards to wit:

S1. Scope. This standard specifies

requirements (emphasis added x 3 bold, ital-

ics, & underlined]) for the protection of vehicle

occupants in crashes.

S2. Purpose. The purpose of this standard is to

reduce the number of deaths of vehicle occu-

pants, and the severity of injuries, by specify-

ing vehicle crashworthiness requirement’s in

terms of forces and accelerations measured

upon anthropomorphic dummiesin test crashes,

and by specifying the specific equipment re-

quirements for active and passive restraint

systems.

All four judges that have addressed this issue have

obviously concluded that any equipment that is speci-

fied and installed has presumably been tested and it

must have met the “performance requirements” of the

FMVSS. But is this true? Where is the proof? In the

absence of either testing or proof of “performance” every

judge who has looked at this case is necessarily ruling

upon a statutory affirmative defense that is unequivo-

cally a holographic image that owes its existence to

nothing more than reliance on partial compliance with

regulatory standards. This creates a half truth which in

effect is the worst kind of lie because it is cloaked with

aura of truthfulness. It is, however, not the truth, the

whole truth and nothing but the truth. Therein lies the

distinction between something that is “true and correct”

versus the “whole truth”. The whole truth in this case

and likely in hundreds of similar cases is that the

respondent never attempted to meet the performance

requirements of the statute and therefore cannot say

ci I ii

they complied with the standards set forth by Secretary.

Furthermore, despite our best efforts, we have been

unsuccessful in our attempts to get the courts to con-

sider the undisputed fact that no definitions of “crash-

worthiness” can be found in the standards. Similarly,

there are no standards for the complete construction of

the passenger/driver compartment of the vehicles gov-

erned by this regulatory scheme.* We have been unable

to convince any of the four judges that have looked at

this matter that the absence of any such definition is

critical to the analysis because it requires the Court to

look to other “standards” in the regulatory scheme and

in particular S5 & S6 relating to “crash protection

requirements” and “injury criteria” to determine “crash-

worthiness” performance. For example on page 10 of the

opinion, Judge Wood, writing on behalf of the panel,

states,

“the ability to withstand high profile impacts is

one aspect of the general topic of crashworthiness

that the FMVSS 208 addresses.* Otherwise, the

option that both Geier and Gracia preserve for

manufacturers would be of eviscerated by the par-

ticulars of the crash in question ifa vehicle meets the

crashworthiness standards of FMVSS 208.”. (em-

phasis added) (App. 11)

The record before this court does not contain a single

scintilla of evidence that this vehicle meets “the crash-

5 When this case is tried there will be evidence that auto

manufacturers use passenger compartment cages in their small

and mid size cars presumably because the passenger restraint and

injury criteria cannot be met unless there is a marriage of passen-

ger restraint and structural performance.

® How does the standard address the issue of high profile

impacts?

sas ies

worthiness standards of FMVSS No. 208” as suggested

by decision. Assuming, arguendo, that FMVSS 208

applies to “crashworthiness” as suggested by its title

and assuming further that its purpose and scope must

necessarily relate to that definition, then “crashworthi-

ness” must be defined in terms of performance stan-

dards to prevent injuries. Therefore, the true “crash-

worthiness” standards are set out in S5 & S6 of standard

208. Those standards are silent as to the construction of

the vehicle structure. There is absolutely no evidence

that the respondent met or exceeded those performance

standards in anyway, shape, or form. There is only one

piece of evidence before this court. The evidence that the

defendant chose to meet the equipment requirements

(design requirements) with the most cost effective (cheap)

equipment option available to them. Sometimes it is

best to observe a phenomenon from the opposite view-

point. If this bus had been delivered without any type of

passive restraint equipment specified in FMVSS No.

208 and this same collision occurred, should the plain-

tiff be granted a summary judgment and go to the jury

on damages only or should the trial court require the

plaintiff to prove that the presence of the seat belt would

have met the performance aspects of the standard or,

more simply stated, that it would have made a differ-

ence?

Ironically, the Seventh Circuit Court of Appeals has

ignored one of its own cases that illustrates this phe-

nomenon quite well. DePaepe vs. General Motors Corp.,

141 F. 3d 715, 718 (7th Cir. 1998). Briefly, in that case

. the plaintiff pleaded that the failure of General Motors

to put a padded visor in its carin violation of FMVSS No.

201 was substantially all that the plaintiff was required

to prove in order to retain a substantial verdict. The

Seventh Circuit held unequivocally that the presence or

jell ci

absence of a design standard feature does not address

the more critical issue of performance. It would be

fundamentally unfair to require the plaintiff in an

automotive product liability case to prove lack of perfor-

mance when a design standard has not been met by the

manufacture and yet require no proof on the part of the

manufacturer that met a design standard that they also

met the requisite performance standard.

2. TheDecision Below Conflicts with the Deci-

sions of Three Other Circuit Courts of Ap-

peals and Will Certainly Conflict with the

Opinions ofthe VariousStates’ Courts of Last

Resort.

The United States Court of Appeals for the Fifth

Circuit has clearly issued a authoritative opinion that

discusses the issue of design vs. performance. Perry vs.

Mercedes-Benz of North America, Inc., 957 F.2d 1257,

1266-68 (5th Cir. 1992) The Fifth Circuit ruling is

actually in keeping with the ruling and Geier, supra. In

its opinion the Fifth Circuit states that even if the

design theoretically met minimal performance stan-

dards, the manufacturer could still be sued because the

driver was injured in a collision wherein the forces were

well within those forces that the standard was attempt-

ing to eliminate, i.e. it didn’t work.’ Unlike Geier and

unlike the panel decision herein, the facts of the acci-

dent are clearly enumerated in the Fifth Circuit’s opin-

ion. The plaintiff ‘s argument was that the speed of her

‘In Perry, supra, the plaintiff drove into a ditch at the end of a

“T” intersection and received substantial injuries to her teeth and

mouth. She claimed she was traveling between 40- mph at impact

and Mercedes had “expert” and eyewitness evidence that she was

(Footnote 7 continued on next page)

a. ee

car at impact was in excess of the trigger speed enumer-

ated in the FMVSS and that the air bag should have

deployed but it failed to do so. Also, the argument clearly

related to a collision in an earthen ditch versus a

concrete barrier collision which is, of course, the subject

matter of FMVSS No. 208. The Court in Perry obviously

assumed that Mercedes-Benz met both the design and

the performance standards of section 208. Notably,

however, the opinion is silent on the issue of whether or

not Mercedes-Benz introduced evidence that they had

tested and met the performance standards. Clearly,

there was evidence that they had met the design stan-

dards.

This Court has specifically stated that an analysis of

the collision facts as they relate to performance is

obligatory in the final analysis. Geier, 1918, 1919. As

indicated previously, this Court’s opinion is silent on the

issue of testing by American Honda. However, this is not

an issue in Petitioners case. The Court is blessed with

the established fact that the respondent has testified

under oath that it never tested the front of this vehicle in

a barrier collision to determine whether or not it met the

standards set forth in S5 or S6 of FMVSS No. 208

Petition for Rehearing EnBanc (App. 52 ). Furthermore,

it is also undisputed by all the engineers who testified in

this case that the delta V (or the equivalent of a barrier

impact speed) was only 23.5 mph. Section 5 of the Act

requires no injuries or minimal injuries at 30 mph. This

(Footnote 7 continued)

traveling between 10-20 mph. Not coincidentally, the trigger

speed for the mechanism was 15 mph. She was not wearing a seat

belt. The air bag failed to deploy. In Hurley the parties agree as to

the speed and more importantly the delta V of the bus whereas the

parties in Perry disputed the accident speed as the time of impact.

a,

accident took place well within the performance stan-

dards set forth by the Secretary and yet petitioner

Hurley has essentially lost the use of both of his legs,

suffered internal injuries, and often serious injury as

well. It is respectfully submitted that this is exactly the

type of tort claim that the Secretary intended to be

preserved under the savings clause of the Act.

On July 25th, 2000 (the same day that the Seventh

Circuit decided Hurley) the 10th Circuit reached the

exact opposite conclusion on a preemption case and in so

doing actually reached the same conclusion as the Fifth

Circuit in Perry, supra. Choate vs. Champion Home

Builders Company, 222 F.3d 788,793 -795 (10th Cir.

(Okla.). That case involved a claimed preemption under

the Manufactured Housing Act and regulations promul-

gated thereunder by the Department of Housing and

Urban Development (HUD). The 10th Circuit concluded

that the Plaintiffs’ claim was preserved because it

“seeks to establish greater safety than the minimum

safety achieved by a federal regulation intended to

provide a Floor. Geier at 119”. Applied to the facts of the

Hurley case, S5 and S6 of the FMVSS set the “minimum

floor” and the Hurley alternative design simply seeks to

establish greater safety than minimum safety achieved

by a federal regulation intended to provide a floor. This,

of course, presupposes that the defendant met “the

floor” in the first instance which is a both unproven and

highly debatable supposition at best.

The sixth circuit reached exactly the opposite conclu-

sion of the seventh circuit in King vs. Ford Motor Co.,

ee Se

209 F.3d 86 (6th cir. (KY) 2000).° The decision of the

sixth circuit in King, supra and the decision of the

seventh circuit in Hurley are absolutely and totally

irreconcilable! This court must therefore decide whether

the analysis of the sixth circuit in King is in keeping

with its decision in Geier or whether the analysis of the

seventh circuit in Hurley appropriately sets forth the

standards and rule of law for preemption under the Act.®

The sixth circuit relied on Perry in reaching its deci-

sion. The seventh circuit chose to ignore Perry largely

due to its erroneous interpretation of the preemptive

force of the act as set forth in its previous opinion of

Gracia vs. Volvo Europa Truck Company, supra.

It is with sad irony that petitioners note that with the

exception of their case, when federal courts of appeals

have had a plenary record before them they have sided

with the savings clause of the Act as it relates to failure

to perform. The King case was tried to a jury and all the

facts were before the court. The Ford vehicle in that case

was equipped with a fully automatic shoulder harness

and a knee bolster. This met the design criteria of the

Act. However, the delta V at the time of the collision was

® In King plaintiffs claim of inherently dangerously designed

seat belts was multifaceted as our plaintiff Hurley’s claims on this

matter. Essentially, plaintiffs claim was that the passive restraint

system chosen by Ford was defective because it failed to use load

limiters and/or change the location of the knee bolster and/or

change the location of the belt anchor.

® The seventh circuit makes specific reference to this court

opinion in Geier and overlooks its analysis of minimum standards.

The sixth circuit opinion was published in April prior to this

Court’s decision in Geier but the application for re-hearing was

denied in June after the publication of Geier.

pee” eee

only 27 mph and the plaintiff sustained grievous and

ultimately fatal injuries in that collision”.

A similar result was reached by the Indiana Court of

Appeals in Rogers -v- Cosco, 2000 WL 1641158 (Ind.

App. Nov 2, 2000). Cosco is the manufacturer of motor

vehicle booster child restraint devices. The area is

regulated by section 571.213 of the FMVSS as promul-

gated by the Secretary. Section 213 has the same pur-

pose and scope language as section 208. In determining

that the standard only set forth minimum requirements

the court quoted with approval this Court’s language in

Geier found at page 1918 of its opinion as stated and we

quote:

Thus, as Geier explicitly provides, a State may

impose a stricter standard through the agency ofits

general common law of torts. We conclude that

there is no conflict between Rogers proposed tort

remedy and the minimum standards of the FMVSS

213. Therefore, Roger’s attempt to impose a greater

safety standard through the prohibition of boosters

seats such as the Grand Explorer for children under

forty pounds in not preempted by the Safety Act.

Thus, the trial court erred in granting summary

judgment on this basis. Jd. Page 7 West Law opin-

ion.

© Remember the Act sets forth minimum performance criteria

at 30 mph, supra

on Ee

3. The Opinion of the Court Of Appeals Is

- Contrary tothe Published Legal Opinion of

the Secretary of Transportation and NHTSA.

The Circuit Court of Appeals has relied largely on its

own opinion in Gracia vs. Volvo Europa Trucks Com-

pany, Inc. 112 F. 3d 291 (7th cir. 1997). Other circuits

that have reached similar conclusions with respect to

the issue of “choice” are the Third, Ninth, and Eleventh

respectively.” Harris and Gracia, infra clearly stand for

the proposition that the plaintiff cannot impose a design

alternative which would have the effort of causing a

manufacture to lose its choice of options as outlined in

the FMVSS. Pokorny and Irving, infra would seem to

suggest the same. As previously pointed out in section I

of this application, this is clearly not the position of the

Secretary nor NHTSA itself. The government’s position

is and always has been that the manufacturer's compli-

ance with the design standards of the Act does not, in

and of itself, relieve the manufacture from liability .

Wood us. General Motors Corp., No. 89 - 46 (October

term, 1989) (App. 61), Brief for the United States as

Amicus Curiae. Freightliner Corp. vs. Myrick et al. No.

94 - 286 (October term 1994) (App. 67) Brief for the

United States as Amicus Curiae. Geier vs. American

Honda Motor Co., Inc. No. 98 - 1811 Brief for the United

States as Amicus Curiae. (App. 87) To the extent that

these circuit court cases suggest that a manufacture

discharges its duty under the act by throwing a dart at

a list of equipment options published by the Secretary,

this Court needs to overruled them explicitly.

“Pokorny-v- Ford Motor Co., 902 F.2d 1116, (3d Cir. 1990),

Harris vs Ford Motor Co., 110 F. 3d 1410 (9th Cir.1987), and Irving

us. Mazda Motor Corp., 136 F. 3d 764 (11th Cir. 1998).

— wn

The Court should grant review to insure that its

rulings and the rule of law with respect to preemption is

strictly followed so that the Hurley's — and thousands

of similarly situated Americans — are not wrongfully

and perhaps “illegally” denied their right to present

their evidence in a court of law.

CONCLUSION

This petition for writ of certiorari should be granted

Respectfully submitted,

Arthur H. Bryant

Trial Lawyers for Public

Justice, P.C.

1717 Massachusetts

Avenue, N.W.

Suite 800

Washington, D.C. 20036

202-797-8600

Howard L. Paperner

Law Offices of

Howard Paperner, P.C.

St. Louis, MO 63119

9322 Manchester Rd.

314-961-0097 Ext. 13

Thomas C. DeVoto

(Counsel of Record)

Law Offices of

Thomas C. DeVoto, P.C.

9322 Manchester Rd.

St. Louis, MO 63119

314-961-0097 Ext. 12

APPENDIX

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No.98-3888

FREDERICK A. HURLEY and CHRISTINE A.

HURLEY,

Plaintiffs-Appellants,

Vv

MOTOR COACH INDUSTRIES, IN CORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 95-169-CJP — Clifford J. Proud,

Magistrate Judge.

ARGUED SEPTEMBER 16, 1999 —

DECIDED JULY 25, 2060

Before RIPPLE, MANION, and DIANE P. WOOD,

Circuit Judges.

DIANE P. WOOD, Circuit Judge. While driving a

Greyhound bus from St. Louis to Columbus, Ohio on

February 25, 1993, Fred Hurley was involved in a seri-

ous accident with a jack-knifed double trailer. Hurley

himself suffered severe lower body injuries in the colli-

sion, which collapsed the front wall of the bus. The bus

that Hurley was driving was equipped only with a stan-

dard two point seat belt. It had neither an airbag nor any

structural enhancements that would provide additional

protection to the driver in the event of a high speed crash

like the one in which he was involved. Hurley believes

that these flaws make the bus he was driving unreason-

st ig ies

ably dangerous and, consequently, render the bus’s

manufacturer, Motor Coach Industries, liable for his

injuries.

He and his wife (whose loss of consortium claims are

entirely dependent on his success in this litigation) thus

decided to sue Motor Coach, as well as Consolidated

Freightways (the operators of the trailers that his bus

hit), Road Systems, Inc. (the makers of the trailers that

Hurley struck), and Pines Trailer Corporation (another

trailer manufacturer). Hurley began in Illinois state

court, but Consolidated Freightways removed the action

to the District Court for the Southern District of Illinois

on diversity grounds. After the removal, Hurley settled

his claims against Consolidated Freightways and Road

Systems and dismissed Pines under Fed. R. Civ. P. 41(a).

Except as they relate to a jurisdictional problem that we

address below, Hurley’s claims against these parties are

not at issue in this appeal. The parties agreed to submit

their case to a magistrate judge, as 28 U.S.C. § 636(c)

permits. Finding that Hurley’s case was preempted by

the federal crashworthiness standard, Magistrate Judge

Proud dismissed the action; this appeal followed.

I

Before we discuss the merits of Hurley’s appeal, we

must address a potential jurisdictional problem. Hurley’s

original suit involved four defendants — Motor Coach,

Consolidated Freightways, Road Systems, and Pines

Trailer. For jurisdictional purposes, the Hurleys are

citizens of Arkansas. Motor Coach is a Delaware corpora-

tion with its principal place of business in Arizona.

Consolidated Freightways is also a Delaware corpora-

tion, but its principal place of business is Oregon. Road

Systems is a California corporation and its principal

ay Tee

place of business is there, too. Finally, Pines Trailerisan

Illinois corporation with its principal place of business in

Illinois. Complete diversity, which is required for juris-

diction under 28 U.S.C. § 1332, therefore exists between

the Hurleys and all defendants. (Given the severity of

Hurley’s injuries, nobody is contesting the adequacy of

the amount in controversy.)

Not every diversity case qualifies for removal, how-

ever. For cases that start out in state court, whereit is the

defendant who wants the federal forum, there is an

additional hurdle to clear before successfully reaching

federal court. Under 28 U.S.C. § 1441(b), a non-federal

question case “shall be removable only if none of the

parties in interest properly joined and served as defen-

dants is a citizen of the State in which such action is

brought.” This rule, sometimes called the “forum defen-

dant” rule, means that Pines’s presence in the case, if

proper, would normally keep the case in state court. We

say “normally” because in the typical case, a plaintiff

who is about to see her chosen court slip away will object

to removal if there is an in-state defendant, and thereby

secure a speedy return to state court.

That did not happen in this case. After the defendants

filed their removal petition, Hurley did nothing. Since 28

U.S.C. § 1447(c) gives plaintiffs only 30 days to object to

removal, Motor Coach argues that Hurley has waived

any objection to removal. Of course, waiver is possible

only if the forum defendant rule is nonjurisdictional;

true jurisdictional flaws are nonwaivable and can be

raised at any time. See, e.g., Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 583 (1999) (“subject-matter delinea-

tions must be policed by the courts on their own initiative

even at the highest level”). Section 1447(c) spells out this

fundamental rule for removed cases, where it states

in

specifically that “[i]fat any time before final judgment it

appears that the district court lacks subject matter juris-

diction, the case shall be remanded.” Justice Kennedy

explained the bedrock importance of the rule requiring

courts to notice jurisdictional defects at any time in

United States Catholic Conference v. Abortion Rights

Mobilization, Inc., 487 U.S. 72 (1988):

The distinction between subject-matter jurisdiction

and waivable defenses is not a mere nicety of legal

metaphysics. It rests instead on the central prin-

ciple of a free society that courts have finite bounds

of authority, some of constitutional origin, which

exist to protect citizens from the very wrong as-

serted here, the excessive use of judicial power. The

courts, no less than the political branches of the

government, must respect the limits of their author-

ity.

Id. at 77

We must decide, therefore, whether the forum defen-

dant rule is jurisdictional, in the sense we have been

using the term, or ifit is of a lesser status. That question

has been bouncing around the federal courts of appeals

for more than 75 years, yet oddly enough it remains

unresolved in this circuit. LaMotte v. Roundy’s, Inc., 27

F.3d 314, 316 n.3 (7th Cir. 1994). The overwhelming

weight of authority, however, is on the “nonjurisdictional”

side of the debate. Compare Korea Exch. Bank uv.

Trackwise Sales Corp., 66 F.3d 46, 50 (3d Cir. 1995)

(nonjurisdictional); In re Shell Oil Co., 932 F.2d 1518,

1522 (5th Cir. 1992); Farm Constr. Serv. v. Fudge, 831

F.2d 18, 21-22 (1st Cir. 1987); 428 F.2d 880, 882 (2d Cir.

1970) (Friendly, J.) (nonjurisdictional); Bailey v. Texas

Co., 47 F.2d 153, 155 (2d Cir. 1931) (L. Hand, J.)

ee en

(nonjurisdictional); Hanley-Mack Co. v. Godchaux Sugar

Co., 2 F.2d 435, 487 (6th Cir. 1924) (nonjurisdictional)

with Hurt v. Dow Chemical Co., 963 F.2d 1142, 1145-46

(8th Cir. 1992) (jurisdictional). See also Snapper, Inc. v.

Redan, 171 F.3d 1249, 1258 (11th Cir. 1999) (interpret-

ing 1996 statutory changes as resolving the conflict and

making the forum defendant rule waivable).

A number of reasons persuade us that the majority

rule is the correct one. First, the theme of several recent

Supreme Court decisions that have — considered cur-

able defects in diversity jurisdiction has been to find that

as long as the court’s jurisdiction is proper at the time of

trial and judgment, the case need not be dismissed

because of an earlier jurisdictional problem. This was

the precise holding of Caterpillar, Inc. v. Lewis, 519 U.S.

61 (1996), where the question was whether a lack of

complete diversity at the time of removal required dis-

missal, even though all claims concerning the nondiverse

defendant were settled and that party was dismissed

before the trial began. The Court held that the answer

was no, explaining that “the jurisdictional defect was

cured, i.e., complete diversity was established before the

trial commenced. ... Buta statutory flaw — Caterpillar’s

failure to meet the § 1441(a) requirement that the case

be fit for federal adjudication at the time the removal

petition is filed — remained in the unerasable history of

the case.” 519 U.S. at 73 (emphasis in original). Particu-

larly in light of the strong interests in finality, efficiency,

and economy that attach to a completed trial, the Court

found that the plaintiff's opportunity to raise objections

within the 30 days afforded by § 1447(c) was sufficient to

protect his interests.

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826

(1989), took the same general approach to a different

i

}

i

|

|

j

ais aE cs

problem with diversity jurisdiction. In Newman-Green,

indeed, the problem was more severe: the case had

proceeded to judgment in the district court while an

individual whose presence spoiled complete diversity

remained a party. The defect in jurisdiction was noticed

only at the court of appeals level. The Supreme Court

held that Rule 21 of the Federal Rules of Civil Procedure

allows the courts of appéals (in addition to the district

courts) to dismiss a dispensable party whose presence

spoils statutory diversity jurisdiction. Once again, there-

fore, the note the Court struck is that the last chance for

ensuring that jurisdiction is proper occurs as late as the

final judgment in the case.

The situation we face is different, and in many ways

less troublesome, than the problem the Court encoun-

tered in Caterpillar and Newman-Green. If Hurley’s case

had been filed in the first instance in federal court,

jurisdiction under § 1332 would have been clear. Or, if

Hurley had originally filed a state court action against

Motor Coach, Consolidated, and Road Systems, those

defendants could have removed the case to federal court

since none was an in-state defendant. Once in federal

court, Hurley could have filed an amended complaint

adding Pines, ifit turned out that Pines might have been

responsible for his injuries. In short, the case as it ar-

rived in federal court met every requirement for federal

jurisdiction: it simply took the wrong path, in a sense,

because there was an instate defendant. This, we think,

is more a matter of removal procedure, and hence

waivable, than a matter of jurisdiction.

The policy behind the forum defendant rule also sup-

ports the nonjurisdictional characterization. The rule is

designed to preserve the plaintiffs choice of a (state)

forum, under circumstances where it is arguably less

ie Pa.

urgent to provide a federal forum to prevent prejudice

against an out-of-state party. After removal, ifthe plain-

tiff wants to remain in state court, she can file a timely

motion for remand. Under the circumstances, it seems

that the only purpose that would be served by declaring

the forum defendant rule jurisdictional would be to

- preserve for plaintiffs rights that the plaintiffs them-

selves failed to assert. For these reasons, we join the

longstanding line of authority that holds that the forum

defendant rule is nonjurisdictional. Hurley thus had

only 30 days to object to removal based on the presence

of Pines in the case (which did not last long anyway, as

it turned out that Pines had not built the trailers in

question). Since there were no other potential flaws with

the district court’s diversity jurisdiction, we now turn to

the merits of the appeal.

II

Hurley’s claim against Motor Coach is an Illinois

products liability action. In order to show that Motor

Coach’s product was unreasonably dangerous, he had to

present an alternative design that is “economical, prac-

tical, and effective.” Baltus v. Weaver Division of Kiddie

& Co., Inc., 557 N.E.2d 580, 586 (Ill. App. Ct. 1990).

Hurley’s experts produced a design that had four basic

components: a knee bolster, a three point seat belt, an

airbag, and, most controversially, a steel cage (similar to

a roll cage on a convertible) that would surround the

driver’s area. Additionally, the design called for the

removal of the front row of passenger seats in order to

create a crumple zone, presumably for the protection of

the passengers on the bus.

Motor Coach argued to the court below that there are

three reasons that Hurley’s design is insufficient to get

~

pee ee

his claims to a jury. First, it maintained that his design

is not economical, practical, or effective because it will be

too expensive and, in any event, the steel cage will

subject the driver to crushing deceleration in a front-end

collision. Next, it contested the qualifications of Hurley’s

experts under the standard articulated in Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and

Kumho Tire, Ltd. v. Carmichael, 526 U.S. 137 (1999).

Finally, it argued that because Hurley’s design fore-

closes a manufacturer’s choice between seat belts and

airbags, itis preempted by the National Highway Trans-

portation and Safety Board’s (NHTSA) Federal Motor

Vehicle Safety Standard 208 (FMVSS 208), 49 C.F.R. §

571.208. The district court’s summary judgment in favor

of Motor Coach was based solely on the preemption

theory.

Specifically, the district court found that Hurley’s

claim is preempted by FMVSS 208, which is the federal

crashworthiness standard. The Illinois products liabil-

ity cases dealing with alternative designs suggest that

there is more than one way of showing that a product as

designed by the defendant was unreasonably danger-

ous, although one possibility is to prove that an “eco-

nomical, practical, and effective” alternative design would

be safer. Baltus, 557 N.E.2d at 585. Hurley, however, has

put all of his eggs in the “alternative design” basket. As

a practical matter, his theory would require manufac-

turers selling buses in Illinois to incorporate his pro-

posed steel cage, crumple zone, airbag, and three point

seat belt, lest they face liability for selling an

uncrashworthy vehicle.

Hurley’s theory is remarkably close to the one the

Supreme Court rejected in Geier v. American Honda

Motor Co., 120 S. Ct. 1913, 1922 (2000). In Geier, the

my tee

Court had to decide whether FMVSS 208 and the Na-

tional Traffic and Motor Vehicle Safety Act of 1966

(NTMVS), 15 U.S.C. § 1381 et seq., preempted a state |

common-law tort action in which the plaintiff claimed

that an auto manufacturer who was in compliance with

the federal standard could nonetheless be held liable for

failing to equipits cars with airbags. The Court held that

the Act’s express preemption provision did not preempt

the suit, but that ordinary preemption principles con-

tinue to apply to this area. Under those principles, it

found that the lawsuit actually conflicted with FMVSS

208 and hence the statute, and it could not go forward.

Aside from the fact that Hurley’s claim concerns buses

and Geier’s claim concerned cars, it is hard to see any

significant difference between the two situations. The

applicable standard for buses like the one that Hurley

was driving is found at 49 C.F.R. § 571.208 S4.4.3.1; see

also National Transportation Safety Board Factual Re-

port of Highway Accident Investigation, CRH-93-F-H018

at 4 (Hurley’s bus was manufactured in 1992; its gross

vehicle weight was approximately 28,200 pounds.). The

regulatory section provides that “[eJach bus with a gross

vehicle weight rating of more than 10,000 pounds shall

comply with the requirements of 4.4.2.1 or $4.4.2.2.”

That “or” is critical, since 54.4.2.1 calls for a “complete

passenger protection system” for the driver; it must

comply with crash protection requirements found in $5

of FMVSS 208. On the other hand, 4.4.2.2 requires only

a seat belt assembly; it, too, is subject to guidelines, but

what is important for our case is that it does not require

an airbag or a three point seat belt, as Hurley’s design

does. Nobody doubts, and indeed Hurley argued in his

brief, that under his theory the manufacturer loses the

choice between two point seat belts and the comprehen-

— A-10 —

sive system that his engineers have designed. Motor

Coach’s argument is thus a fairly straightforward one—

because federal law gives bus manufacturers a choice as

to the driver protection systems installed in a particular

bus, an Illinois tort suit that rests on a theory that

forecloses that choice is preempted.

Geier confirms Motor Coach’s theory-that a state law-

suit that forecloses an option left open by FMVSS 208 is

in fact preempted. In Geier, the Court traced the history

of FMVSS 208 and concluded that Congress and the

Department of Transportation expressed a preference

for leaving to manufacturers the choice between airbags

and other types of safety devices (at least for the period

in time during which the plaintiffs car was manufac-

tured). Geier noted the controversy over the efficacy and

utilization of airbags and seatbelts and concluded that

FMVSS 208 “deliberately sought variety” by leaving the

choice of passenger protection system up to manufactur-

ers. Geier, 1208S. Ct. at 1924.

One particular aspect of Geier’s discussion of FMVSS

208 is especially relevant here. One of the major prob-

lems with which the Department of Transportation

needed to deal when formulating standards for passen-

ger cars is a strong aversion among the driving public to

seatbelts. Jd. at 1923-24 (recalling the “fiasco” that re-

sulted when auto-makers installed systems that pre-

vented drivers from starting their cars unless seatbelts

were buckled). NHTSA found that this problem was even

more acute among heavy vehicle operators. See 53 Fed.

Reg. 25336, 25338 (July 6, 1988) (noting that seat belt

use among heavy truck drivers is far below the national

average for all vehicles). The commentary accompany-

ing the final rules indicates that even the details of seat

belt design — such as the retractor mechanism, mount-

— A-11—

ing position, and buckle releases — were hotly debated

during the rulemaking process. See id. at 25339-41.

Consequently, NHTSA’s decision to leave the manufac-

turers of heavy buses with the option of using a two point

seat belt that met regulatory standards is quite under-

standable as a way of promoting safety by encouraging

drivers to use the safety equipment that manufacturers

install. But Hurley’s proposal unequivocally requires a

three point seat belt, a requirement that could reduce

utilization and thereby undermine FMVSS 208’s safety

objectives. Perhaps the design would not in fact reduce

seatbeit utilization, but that is not the point. The pointis

that, asin Geier, the decision to leave options open to bus

manufacturers was made with specific policy objectives

in mind. Hurley’s suit, if successful, would undermine

that policy objective and is therefore preempted.

Even before Geier, our own case law would have led us

to the same result. See Gracia v. Volvo Europa Truck, N.

v., 112 F.3d 291 (7th Cir. 1997). The arguments Hurley

offered to distinguish Gracia are the same as those he

would raise to avoid Geier, and so we address them

briefly. In his view, FMVSS 208 does not speak to his

particular problem. He maintains that his theory of un-

crashworthiness is limited to the ability of the bus to

protect the driver in high profile impacts (i.e. impacts

with trucks or other large vehicles where the point of

collision is above the bumper). We are unpersuaded by

this distinction. The ability to withstand high profile

impacts is one aspect of the general topic of crashworthi-

ness that FMVSS 208 addresses. Otherwise, the option

that both Geier and Gracia preserve for manufacturers

would be eviscerated by the particulars of the crash in

question. If a vehicle meets the basic crashworthiness

standards of FMVSS 208, the after-the-fact details of the

— A-12 —

plaintiffs particular injuries do not, and cannot, matter.

As Geier (and Gracia) held, a state-law tort action that

forecloses an option left open tc the manufacturer is

preempted under FMVSS 208. The only qualification is

the one recognized in Geier —if there are “special design

related circumstance[s] concerning a particular type of

[vehicle],” then a manufacturer 5 own design decisions

may foreclose one or more of the choices left open by the

federal standards. Geier, 120 5. Ct. at 1927-28. So, for

example, ifa plaintiffshowed that the design particulars

of her car made airbags the only viable option, then

FMVSS 208 would not foreclose the case. This loophole

is of no use to Hurley, however; he has pointed to nothing

about the design of this particular bus that makes it

different from the average “bus with a gross vehicle

weight rating of more than 10,000 pounds.” 49 C.F.R. §

571.208 S4.4.3.1.

Ill

We conclude that the Supreme Court’s opinion in

Geier governs Hurley’s case and compels the conclusion

that when a Federal Motor Vehicle Safety Standard

leaves a manufacturer with a choice of safety device

options, a state suit that depends on foreclosing one or

more of those options is preempted. Hurley’s proposed

design, with three point seat belts and airbags, would

preclude a bus manufacturer from exercising the

“[s]econd option” contained in S4.4.2.2. The history of the

safety requirements for large buses like the one Hurley

was driving indicates that these options were important

in the overall safety regime created by FMVSS 208. His

suit interferes with these federal policy choices. Under

Geier, it is preempted, and we thus AFFIRM the judg-

ment of the district court.

—< he

A true Copy:

Teste:

Clerk of the United States Court

of Appeals for the Seventh Circuit

it lan

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

Civil No. 95-169-CJP

FREDERICK A. HURLEY, et al.,

Plaintiffs,

Vv

MOTOR COACH INDUSTRIES, INC., e¢ al.,

Defendants.

ORDER

[Filed: September 30, 1998]

PROUD, Magistrate Judge:

Pursuant to 28 U.S.C. § 636(c)(1), upon the consent of

the parties to trial by magistrate judge, this matter was

referred to this Court by United States District Judge

William D. Stiehl. (Docs. 85, 106 and 107). Before the

Court for consideration is defendant Motor Coach Indus-

tries’ motior. for summary judgment (Doc. 147), and

necessarily plaintiffs objections thereto (Docs. 151', and

155), and the parties’ various related briefs (Docs. 153,

159, 172, 201, 211, and 212).

‘ On the motion of plaintiffs (Doc. 152), a second memorandum

in opposition to defendant’s motion for summary judgment (Doc.

155) was substituted for the memorandum initially filed by plain-

tiffs (Doc. 151). (See Doc. 154). Plaintiffs initial memorandum (Doc.

151)included numerous exhibits, which are deemed to still be a part

of plaintiffs’ memorandum, anda part of the record before the Court

because plaintiffs never sought to withdraw them in their motion

to substitute.

— %)) yen

The Complaint

On February 25, 1993, during a snow storm, Frederick

Hurley, a Greyhound Bus Lines driver was operating a

bus manufactured by Motor Coach Industries (MCD), the

“Model 12” (hereinafter referred to as the “MC-12”).

Hurley’s bus collided with a jack-knifed tractor trailer

causing Hurley extensive, serious injuries, including

but not limited to multiple broken bones in his legs, and

injuries to his torso and internal organs. Frederick Hurley

filed the above-captioned action alleging that the MC-12

bus was defectively designed and unreasonably danger:

ous. In short, Hurley alleges that the MC-12 was defec-

tive in that it was designed with no protection and a lack

of structural strength in the front of the bus, thereby

providing little or no protection from driver compart-

ment intrusion in event of a collision; and that the

bumper or safety system was inadequately designed to

handle collision with an object higher than the bumper

mechanism on the bus. (See Doc. 2). Christine Hurley,

Frederick Hurley’s wife, joins in this action, asserting a

claim for loss of consortium. (See Doc. 2)

The Alternative Design

A manufacturer has a duty to produce a product that

is reasonably safe. Baltus v. Weaver Division of Kiddee &

Co., Inc., 557 N.E.2d 580, 585 (Ill. App. 1st Dist. 1990). A

negligence inquiry focuses on the condition of the defec-

tive product and the defendant manufacturer’s fault. Id.

The Illinois Supreme Court “has held that a plaintiff

‘must present evidence, such as an alternative design

which is economical, practical and effective, to the fact

finder who determines whether the complained-of condi-

tion was an unreasonably dangerous defect.” Id. (quot-

ing Kerns v. Engelke, 390 N.E.2d 859, 863 (Ill. 1979)).

be eRe ak YL eee

Ee PL <5 NS

RP ee eee ee

nt het

“(T]he threshold question of unreasonably dangerous

design is not whether the product could have been made

safer, but whether it is dangerous because it fails to

perform in the manner reasonably to be expected in light

of its nature and intended function.” Baltus, 557 N.E.2d

at 586 Plaintiff may prove that a product is not reason-

ably safe due to a design defect by showing the availabil-

ity and feasibility of alternative designs available at the

time of manufacture, or that the product fails to conform

to industry standards, or that the product does not

satisfy design criteria set forth in government regula-

tions. Id. (citing Anderson v. Hyster Co., 385 N.E.2d 690

(Ill. 1979).

The alternative design proffered by plaintiffs’ experts

Kelsey and Nelson includes an additional bumper but

principally revolves around a cage and incorporates the

use of an air bag, a three-point shoulder harness/seat

belt system and a knee bolster. (Doc. 155, pp. 3-5; Doc.

151, Exhibit B (Affidavit of H. Boulter Kelsey, Jr., 7 6,

7 and 11), Exhibit C (Affidavit of William N. Nelson { 9),

and Exhibit D (Deposition of H. Boulter Kelsey, Jr., p.

125); see also Doc. 148, Exhibit E (January 25, 1996,

Deposition of H. Boulter Kelsey, Jr., pp. 217-218, and

265), and Exhibit G (July 8,1997, Deposition of H. Boulter

Kelsey, Jr., p. 50), and Exhibit H (July 10, 1997, Deposi-

tion of William Nathan Nelson, pp. 43-44, and 48)).

Arguments Regarding Summary Judgment

Defendant MCI argues that

(1) The alternative design proffered by the plain-

tiffis itself defective, unreasonably dangerous, and

not feasible,

(2) Plaintiffs’ expert testimony cannot satisfy the

preliminary test for admitting scientific evidence

AAT —

under Fed.R.Evid. 702, as announced in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 579 (1993); and

(3) Federal Motor Vehicle Standard 208(49C.F.R.

§ 571.208, S4.4), relating to occupant crash protec-

tion for buses, does not require air bags, which are

an essential part of the alternative design proffered

by the plaintiffs’ expert, therefore, plaintiffs’ com-

mon-law claim(s) are preempted.

(See Docs. 147, 148, 153, 159, and 172).

Plaintiffs counter that their experts, H. Boulter Kelsey,

Jr., and William N. Nelson have a feasible alternative

design; that the Kelsey-Nelson alternative design can

pass the Daubert test and therefore be argued before the

jury; and that the Federal Motor Vehicle Act does not

preempt their common law claim.

Summary judgment is appropriate under Fed.R.Civ.P.

56 where “the pleadings) depositions, answers to inter-

rogatories, and admissions on file) together with the

affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled

te judgment as a matter of law.” Fed.R.Civ.P. 56(c); see

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

2548, 2552 (1986). The evidence is construed in the light

most favorable to the non-moving party and all justifi-

able inferences are drawn in favor of that party. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255, 1068S.

Ct. 2505, 2513-14 (1986). Once the moving party has

produced evidence to show that he or she is entitled to

summary judgment, the non-moving party must affir-

matively demonstrate that a genuine issue of material

fact remains for trial. Johnson v. City of Fort Wayne, 91

F.3d 922, 931 (7th Cir. 1996). In responding to a sum-

mary judgment motion, the non-moving party may not

— A-18 —

simply reiterate the allegations contained in the plead-

ings, more substantial evidence must be presented at

this stage. “The object of [Rule 56(e)] is not to replace

conclusory allegations of the complaint or answer with

conclusory allegations ofan affidavit.” Lujan v. National

Wildlife Fed’n, 497 U.S. 871, 888 (1990). Moreover, a

genuine issue of material fact is not shown by the mere

existence of “some alleged factual dispute between the

parties " Anderson, 477 U.S. at 247, or by “some meta-

physical doubt as to the material facts, “ Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986).

Preemption

Article VI of the Constitution of the United States

provides that “the Laws of the United States... shall be

the supreme Law of the Land. . . any Thing in the

Constitution or Laws of any State to the Contrary not-

withstanding.” U.S. Const. Art. VI, cl. 2. Congress has

the authority to preempt state law. “[P]reemption will be

found only in those situations where it is ‘the clear and

manifest purpose of Congress.” Gracia v. Volvo Europa

Truck, N.V., 112 F.3d 291, 294 (7th Cir. 1997) (internal

citations omitted).

“Federal preemption of state law can occur in three

circumstances: (1) express preemption where Congress

explicitly preempts state law; (2) implied preemption

where Congress has occupied the entire field (field pre-

emption); and (3) implied preemption where there is an

actual conflict between federal and state law (conflict

preemption).” Jd.

Waiver

As noted above, defendant argues that Federal Motor

Vehicle Standard 208 (49 C.F.R. § 571.208, $4.4), relat-

— A-19 —

ing to occupant crash protection for buses, does not

require air bags, which are an essential part of the

alternative design proffered by the plaintiffs’ experts;

therefore, according to defendant, plaintiffs’ common-

law claim(s) are preempted in accordance with the pre-

emption clause set forth in 49 U.S.C. § 30103(b) (for-

merly 15 U.S.C. § 1392(d)).? Pursuant to Fed.R.Civ.P.

12(f), plaintiffs have filed a motion to strike defendant’s

affirmative defense of preemption. (Doc. 201). Plaintiffs

assert that preemption is not listed as an affirmative

defense in defendant’s answer (Doc. 20), and by waiting

until “the eleventh hour,” defendant waived the de-

fense.*(Doc. 201, p. 2). |

In essence Fed.R.Civ.P. 8(c) requires that “any matter

constituting an avoidance or affirmative defense” be set

forth in defendant’s answer. “The purpose of that rule, as

courts have long recognized, is to avoid surprise and

undue prejudice to the plaintiff by providing her notice

and an opportunity to demonstrate why the defense

should not prevail.” Venters v. City of Delphi, 123 F.3d

*In 1994, “The National Traffic and Motor Vehicle Safety Act of

1966,” 15 U.S.C. 1381 et seq. (1988), was recodified at 49 U.S.C. §

30101 et seq. (1994), without substantive change. See Pub.L.

No.103-272, § 1(e), 108 Stat. 943; see also Gracia v. Volva Europa

Truck, N.V., 112 F.3d 291, FN 2 (7th Cir. 1997). This Court will

make every attempt to offer dual citations.

*Defendant MCI filed a motion on November 2, 1995, to dismiss

plaintiffs’ case pursuant to Fed.R.Civ.P. 12, or alternatively for

summary judgment under Fed.R.Civ.P. 56. (Doc. 53). In order to

permit plaintiffs’ experts to complete their analysis and design, this

Court quashed the depositions of Kelsey and Nelson, and directed

that dispositive motions be filed after said depositions were com-

pleted. (See Docs. 132-136). Therefore, the Court cannot fault

defendant for not filing their “second” motion for summary judg-

ment (Doc. 147) earlier.

— A-20 —

| 956, 967 (7th Cir. 1997). A defense is an “affirmative

| defense” for purposes of Rule 8(c) ifit does not controvert

the plaintiff's proof. Brunswick Leasing Co. v. Wisconsin

Central Ltd, 136 F.3d 521, 530 (7th Cir. 1998). Preemp-

tion is just such a defense — a legal challenge, rather

than a factual challenge to plaintiffs’ case.

“The pertinence of a particular defense may only

become apparent after discovery, for example, in which

case it would be reasonable for the court to permit the

belated assertion of that defense.” Venters, 123 F.3d at

967. “The appropriate thing for the defendant to do, of

course is to promptly seek the court’s leave to amend his

answer. Id. 123 F.3d at 968.

Areview ofthe record reveals that defendant’s answer

includes the following affirmative defense: “The Com-

plaint fails to state a claim upon which relief can be

granted against MCI.” (Doc. 20, pp. 3-4 (“Second Addi-

tional Defense”)). The blanket affirmative defense as-

serted in defendant’s answer, coupled with the fact that

defendant could not have raised the preemption defense

prior to learning the exact nature of plaintiffs’ alterna-

tive design, and the fact that plaintiff has been given an

opportunity to fully briefthe preemption issue, combine

to sati_, the purpose of Fed.R.Civ.P. 8(c). Therefore, the

Court declines to find that defendant waived the affir-

mative defense of preemption.

The Safety Act and Occupant Crash Protction

The stated purpose of the National Traffic and Motor

Vehicle Safety Act (“Safety Act”) is “to reduce traffic

accidents and deaths and injuries resulting from traffic

accidents.” 49 U.S.C. §30101 (formerly 15 U.S.C. § 1381).

Accordingly, the Secretary of Transportation has been

delegated the authority to establish federal motor ve-

TS aaNNERRMEIOTSrrece ee ran en Se |

— A-21—

hicle safety. standards (“FMVSS” or “Standard”) that

“shall be practicable, meet the need for motor vehicle

safety, and be stated in objective terms.” 49 U.S.C. §

30111(a) (formerly 15 U.S.C. § 1392). The Secretary in

turn has delegated this duty to the National Highway

Transportation Safety Administration (“NHTSA”). 49

C.F.R. § 1.50; see also 49 C.F.R. § 501.2.

Occupant crash protection standards specifying per-

formance requirements for the protection of vehicle oc-

cupants in crashes are set forth in FMVSS 208 (49C.F.R.

§ 571.208). The stated purpose of this standard “is to

reduce the number of deaths of vehicle occupants, and

the severity of injuries, by specifying vehicle crashwor-

thiness requirements in terms of forces and accelera-

tions measured on anthropomorphic dummies in test

crashes, and by specifying equipment requirements for

active and passive restraint systems.” 49 C.F.R. §571.208,

$2. |

Safety Standards 4.4.3 and 4.4.3.1 provide that buses

manufactured on or after September 1, 1991, with a

gross vehicle weight rating of more than 10,000 pounds,

“shall comply with the requirements $4.4.2.1 0rS4.4.2.2.”

49 C.F.R. § 571.208, S4.4.3 and $4.4.3.1. Those require-

ments are:

S4.4.2.1 First option — complete passenger protec-

tion system — driver only. The vehicle shall meet

the crash protection requirements of SS, with re-

spect to an anthropomorphic test dummy in the

driver’s designated seating position, by means that

require no action by vehicle occupants.

S4.4.2.2 Second option — belt system — driver only.

The vehicle shall, at the driver’s designated seating

position, have either a Type 1 or a Type 2 seat belt

on

assembly that conforms to S571.209 of this part and

S7.2 of this Standard.

49 C.F.R. § 571.208, $4.4.2.1 and S4.4.2.2 (explicit tech-

nical requirements have been omitted). The following

explanatory note is included in Safety Standard 208 and

clarifies the meaning of S4.4.2.1:

The concept ofan occupant protection system which

requires “no; action by vehicle occupants” as that

term is used in Standard No. 208, is intended to

designate a system which will perform its protective

restraining function after a normal process of in-

gress or egress without separate deliberate actions

by the vehicle occupant to deploy the restraint sys-

tem. Thus, the agency considers an occupant protec-

tion system to be automatic if an occupant has to

take no action to deploy the system but would nor-

mally slightly push the seat belt webbing aside

when entering or exiting the vehicle or would nor-

mally make a slight adjustment in the webbing for

comfort.

49 C.F.R. § 571.208, S208 Note.

The Safety Act’s Preemption Clause

The preemption clause of the Safety Act states: “When

a motor vehicle safety standard is in effect under this

chapter, a State or a political subdivision of a State may

prescribe or continue in effect a standard applicable to

the same aspect of performance of a motor vehicle or

motor vehicle equipment only if the standard is identical

to the standard prescribed under this chapter. . . . 49

U.S.C. § 30103(b)(1) (formerly 15 U.S.C. § 1392(d)).

Defendant construes Safety Standard 208 as specifically

exempting any requirement that a bus (the MC-12) be

required to have air bags.

— A-23 —

The Safety Act also contains a savings clause which

provides that “[clompliance with a motor vehicle safety

standard prescribed under this chapter does not exempt

a person from liability at common law.” 49 U.S.C §

30103(e) (formerly 15 U.S.C. § 1897(k)). Noting that

Safety Standard 208 does not specifically address air

bags, plaintiffs argue that their common law claim can

be maintained pursuant to the savings clause — mean-

ing that MCI should be liable for not going above and

beyond the requirements of Standard 208, when a fea-

sible alternative design was available.

There appears to be no dispute that air bags are not

required passive restraint devices. The legislative his-

tory supports this conclusion: “Congress and the NHTSA

sought to ensure the minimum protection of occupants

while allowing manufacturers to develop better systems

through competition in the automobile industry. See

S.REP. No. 1301, 89th Cong., 2d Sess. 1, 4 (1966), re-

printed in 1966 U.S.C.C.A.N. 2709, 2712.” Perry v.

Mercedes Benz of North America, 957 F.2d 1257, 1260

(5th Cir. 1992); see also Pokorny v. Ford Motor Co. 902

F.2d 1116, 1118 FN2, and 1123-1124; see also Motor

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 34-38 (1983) (detailing the legislative history of

passive restraints, through 1982).

“The Supreme Court has held that ‘a federal decision

to forgo regulation in a given area may imply an authori-

tative federal determination that the area is best left

unregulated, and in that event would have as much

preemptive force as a decision to regulate.” Gracia, 112

F.3d at 296 (quoting Arkansas Electric Co-op. Corp. v.

Arkansas Public Service Commission 461 U.S. 375, 384

(1983)); see also Freightliner Corp. v. Myrick, 514 U.S.

280, 286-288 (1995). This is just such a case. The afore-

as Yaa

mentioned legislative history reveals that an affirma-

tive decision was made not to require air bags and to

allow manufactures to choose between the stated design

options in order to meet the minimum standard for motor

vehicle equipment performance. See 49 U.S.C. §

30102(a)X9) (formerly 15 U.S.C. § 1391(2) (defining the

Safety Standards as “minimums”); see also Gracia v.

Volvo Europa Truck, N.V., 112 F.3d 291, 296 (7th Cir.

1997). In addition, the Courts of Appeal for the Third,

Ninth and Eleventh Circuits have soundly concluded

that when Congress specifically gives manufacturers a

choice, common law claims that the available option

selected by the manufacturer is an inherently defective

design are preempted. See Pokorny v. Ford Motor Co.,

902 F.2d 1116, 112.3 (8rd Cir. 1990); Harris v. Ford

Motor Co., 110 F.3d 1410,1114-1115 (9th Cir. 1997); and

Irving v. Mazda Motor Corp., 136 F.3d 764, 768 (11th

Cir. 1998).

A judgment in this case that the MC-12 was defec-

tively designed because no air bag was included would

have the same effect as a state statute or regulation, for

purposes of preemption analysis. See Gracia, 112 F.3d at

297; see also Harris, 110 F.3dat 1415. Therefore, insofar

as plaintiffs design requires air bags to be installed in

the MC-12 bus, that ‘common law claim is preempted.

This is not to say that compliance with any Safety

Standard exempts a manufacturer from all common law

liability. See Gracia, 112 F.3d at 297-298. Common law

claims are “preserved only when they do not deviate

from the standards set forth by the NHTSA.” Jd at 298.

“Accordingly, a manufacturer who complied with all of

the safety standards could still be sued under the com-

mon law for a defect that was not discussed or covered by

the safety standards. Jd. at 293 FN8. For example, if

— A-25 —

plaintiff argued that the addition of a protective cage,

alone, would have been a feasible alternative design

that would have prevented plaintiff Frederick Hurley’s

injuries, then that common law claim probably would

not have been preempted. However, the fatal flaw in the

plaintiffs’ case is that both of their experts, Kelsey and

Nelson, adamantly state that the cage, air bag, a three-

point shoulder harness/seat belt system, and a knee

bolster comprisea unitary design, each part being neces-

sary for the success of the whole. (Doc. 155, pp. 3-5; Doc.

151, Exhibit B (Affidavit of H. Boulter Kelsey, Jr., 74 6,

7 and 11), Exhibit C (Affidavit of William N. Nelson { 9),

and Exhibit D (Deposition of H. Boulter Kelsey, Jr., p.

125); see also Doc. 148, Exhibit E (January 25, 1996,

Deposition of H. Boulter Kelsey, Jr., pp. 217-218, and

265), and Exhibit G (July 8,1997, Deposition of H. Boulter

Kelsey, Jr., p. 50), and Exhibit H (July 10, 1997, Deposi-

tion of William Nathan Nelson, pp. 43-44, and 48)).

Consequently, if MCI cannot be compelled to include an

air bag, the Court need not analyze the viability of the

remaining elements of the proffered alternative design,

or the Daubert issues raised by defendant.

Plaintiffs’ attempt to analogize this case to Grant v.

Motor Coach Industries, Inc., Industries, Inc., 95-CV-

2508-PHX-RGS, which is apparently pending in the

District of Arizona, is counter productive. (See Doc. 211).

The order denying MCI summary judgment in that case

was premised on a different expert, and a proffered

design alternative that was not subject to preemption.

(See Doc. 211).

Loss of Consortium Claim

A claim for loss of consortium is predicated on the

claim of the directly injured spouse. Plocar v. Dunkin’

— A-26 —

Donuts of America, Inc., 431 N.E.2d 1175 (I11LApp. lst

Dist. 1981). Consequently, since Frederick Hurley's claim

has failed, Christine Hurley’s claim must also fail.

IT IS THEREFORE ORDERED that, for the

aforestated reasons, plaintiffs Frederick and Christine

Hurley’s motion to strike defendant’s affirmative de-

fense of preemption (Doc. 201) is DENIED.

IT IS FURTHER ORDERED that, for the aforestated

reasons, defendant Motor Coach Industries’ motion for

summary judgment (Doc. 147) is GRANTED, thereby

warranting entry of final judgment in this case.

IT IS THEREFORE FURTHER ORDERED that

judgment shall enter in favor of defendant Motor Coach

Industries, Inc., and against plaintiffs Frederick A.

Hurley and Christine A. Hurley, in all respects; judg-

ment shall also reflect the previous orders of Court

dismissing all of the plaintiffs’ claims against defendants

Consolidated Freightways, Road Systems, Inc., Pines

Trailer Corp., and Robert Welty; judgment shall also

reflect the Court’s previous dismissal of all third-party

claims between Road Systems, Inc., and Greyhound

Lines, Inc., and between Robert Welty and Greyhound

Lines, Inc., and between Consolidated Freightways and

Greyhound Lines, Inc., and between Motor Coach In-

dustries, Inc., and Greyhound Lines, Inc.; judgment

shall also reflect the Court’s previous dismissal of the

cross-claim between Greyhound Lines, Inc., and Con-

solidated Freightways and Robert Welty.

IT IS SO ORDERED.

DATED: September 29, 1998

AT

/s/ Clifford J. Proud

CLIFFORD J. PROUD

U.S. MAGISTRATE JUDGE

— A-28 —

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

NO. 95-169-CJP

Frederick A. Hurley and Christine A. Hurley,

Plaintiffs,

-vs-

Motor Coach Industries, Inc.,

Consolidated Freightways, Road Systems, Inc.,

Pines Trailer Corporation, and Robert Welty,

Defendants,

Road Systems, Inc., Robert Welty,

Consolidated Freightways and

Motor Coach Industries, Inc.,

Third-party plaintiffs,

-vs-

Greyhound Lines, Inc.,

Third-party defendant,

Greyhound Lines, Inc.,

Cross-claimant,

-vs-

| Consolidated Freightways and Robert Welty,

| Cross-defendant.

JUDGMENT IN A CIVIL CASE

[Filed: October 1, 1998]

The defendant PINES TRAILER CORPORATION

| was dismissed on June 14,1995) by and Order entered by

| United States Magistrate Judge Gerald B. Cohn. Third-

party plaintiffs ROAD SYSTEMS, INC., ROBERT

WELTY CONSOLIDATED FREIGHTWAYS and MO-

— A-29 —

TOR COACH INDUSTRIES, INC.; and third-party de-

fendant GREYHOUND LINES, INC.; cross-claimant

GREYHOUND LINES, INC., and cross-defendants CON-

SOLIDATED FREIGHTWAYS and ROBERT WELTY

were dismissed on August 8, 1996, by stipulation of the

parties, (Docs. 99 and 100). Defendants CONSOLI-

DATED FREIGHTWAYS, ROAD SYSTEMS, INC.,

PINES TRAILER CORPORATION and ROBERT

WELTY were dismissed on September 24, 1998, by an

Order entered by United States Magistrate Judge Clifford

J. Proud (Doc. 216).

IT IS HEREBY ORDERED AND ADJUDGED that

judgment is entered in favor of defendant MOTOR

COACH INDUSTRIES and against plaintiffs

FREDERICK A. HURLEY and CHRISTINE A.

HURLEY in accordance with an Order entered by United

States Magistrate Judge Clifford J. Proud on September

30, 1998, (Doc. 218).

DATED this 1st day of October, 1998

NORBERT G.

JAWORSKI, CLERK

BY: /s/ illegible

Deputy Clerk

Approved by /s/ Clifford J. Proud

United States Magistrate Judge

Clifford J. Proud

~—

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 98-3888

FREDERICK A. HURLEY and

CHRISTINE A. HURLEY,

Plaintiffs/Appellants,

vs.

MOTOR COACH INDUSTRIES,

Defendant/Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF

ILLINOIS

EAST, ST. LOUIS DIVISION

HON. CLIFFORD J. PROUD, MAGISTRATE

APPELLANTS’ PETITION FOR REHEARING AND

ALTERNATIVE PETITION FOR

REHEARING EN BANC

Respectfully submitted,

Tuomas C. DeVoro, P.C.

By: Thomas C. DeVoto

Attorneys for

Plaintiffs/Appellants

9322 Manchester Road

St. Louis, MO 63119

(314) 961-0097

(314) 961-0667) (facsimile)

Pe oO ww

a

TABLE OF CONTENTS

PLAINTIFFS/APPELLANTS CERTIFI-

CATE OF UNTERESD? issciiscscssaciccsdssiiucssints

RENNIE RIM siriscsessadscaincsasseavspicinsuetitcnenscee

ie

PLAINTIFFS/APPELLANTS

CERTIFICATE OF INTEREST

The undersigned attorney for Plaintiffs/Appellants

Frederick A. and Christine A. Hurley hereby supplies

the following list in compliance with local rule 26.1:

1. Appellants are Frederick A. Hurley and Chris-

tine A. Hurley, and

2. Neither appellants are Amicus nor corporate

parties, and

3. Thenames ofthe law firms that have appeared

for them all are as follows:

Wuestling, James & DeVoto by Thomas C.

DeVoto and Robert L. DeVoto

And

THOMAS C. DEVOTO, P. C. by Thomas C.

DeVoto and Robert L. DeVoto

— A-33 —

TABLE OF CASES AND AUTHORITIES CITED

Page(s)

Choate vs. Champion Home Builders Company,

2000 WL 1022251, page 3 & 5 (10 Cir.

(GEIB. ) .. cscscnviavshcisehesscseriaebeiobemmacicn Sie 8-9

DePaepe vs. General Motors Corp., 141 F. 3d 715

(719-720) (7 Che, 8987) icssniceescacoisssstecnscalas 2,6

Freightliner Corp. vs. Myrick, 514 U.S. 280, 288

290, 115 S. Ct. 1483, 1486-1488 (1995) ....... 9

Geier vs. America Honda Motor Co., 120 S. Ct.

LOLS CROO isiisavididvs cricbeesccestists conecdeg’ 1,2,5,7,8,9,12

Gracia vs. Volvo Europa Truck, N.V., 112 F. 3d

BREE es BED bitesnsccecstinseconseiieplccuebicccs 2,5,9,10

Perry vs. Mercedes-Benz of North America, Inc.,

957 F.2d 1257, 1266-68 (5 Cir. 1992)......... 2,7

FMVSS (49 CFR 571.3) (Definitions) ................. 9

FMVSS 105 (49 CFR 571.105)(1999) (Brakes)... 8

FMVSS 205 (49 CFR 571.205) (Glazing)............ 10

PUNE BIER sick csnscnrcccnccenscksinsndscsiouscserceeécsce 10

PII ONE NU so cdiiccg ciciivsacsicaber sisi noises 10

FMVSS 208 (49 CFR 571.208) (Crashworthi-

SIE i idaieaihsiibebissictiin ehinsdnainecceaarcibietninciamisicrsian 3,5-9

CUE Baie eS 4

PUNE I siatrnctshasiotrseiiececptnabicecnsccccessiaces ce 4

I si siscds spn iteee o 5,8,9

PIII icra cag 5,8,9

BRREDD A CD) OE TG FE vic scsvssandnsscssvescisonssosecencs 3

sect ai cai

JURISDICTIONAL STATEMENT AND

STATEMENT OF ISSUES

PRESENTED FOR REHEARING

This motion is filed in accordance with rules 35 (b) and

40 of the federal rules of appellate procedure. The

grounds for rehearing are as follows:

L

THE PANEL DECISION CONFLICTS WITH

DECISIONS OF THE UNITED STATES SU-

PREME COURT AND CONSIDERATION BY THE

FULL COURT IS THEREFORE NECESSARY TO

SECURE AND MAINTAIN UNIFORMITY OF THE

COURT’S DECISIONS.

A.) The decision is in conflict with express rulings

of the Supreme Court in

1. Freightliner vs. Myrick, 514 U.S. 280,, 115

S. Ct. 1483 (1995) and

2. Geier vs. America Honda Motor Co.,120S.

Ct. 1913 (2009)

IL.

THE PROCEEDING BEFORE THIS COURT

INVOLVES ONE OR MORE QUESTIONS OF

EXCEPTIONAL IMPORTANCE THAT RELATES

TO AN ENTIRE CLASS OF PERSONAL INJURY

LAWSUITS AND THE PANEL DECISION CON-

FLICTS WITH AUTHORITATIVE DECISIONS

OF THIS COURT AND TWO OTHER UNITED

STATES COURTS OF APPEALS THAT HAVE

ADDRESSED THE ISSUES.

<< ol

A.) The panel decision conflicts with two previous

opinions issued by this court:

1. DePaepe vs. General Motors Corp., 141F .3d

715 (719-720) (7th Cir. 1997) (Illinois) and

2. Gracia vs. Volvo Europa Truck, 112: F.3d

291 (7th Cir. 1997)

B.) The panel decision conflicts with the decision of

the United States Court of Appeals for the Fifth

Circuit and Tenth Circuits:

1. Choate vs. Champion Home Builders Com-

pany, 2000 WL 1022251, page 3 (10th Cir.

(Okla.) (This case was decided on July 25,

2000, the same day as Hurley -v- MCI but

with the exact opposite result)

2. Perry vs. Mercedes-Benz of North America,

Inc., 957 F.2d 1257, 1266-68 (5th Cir. 1992)

ARGUMENT

The panel decision conflicts with decisions of the

Supreme Court and with authoritative opinions of this

Court and the United States Courts of Appeals for the

5th and 10th Circuits.

It is difficult for anyone to grasp the exact rule of law

with regard to federal preemption because the Supreme

Court has been somewhat inconsistent depending upon

the subject matter of the alleged preempted area, i.e.

cigarette warnings, medical devices, motor vehicles, and

railroad crossings. Likewise, The Court’s opinion in Geier,

supra, is in stark contrast to the new federalism exhib-

ited by the Court in deference to states’ rights. However,

— A-36 —

the primary difficulty with any in depth analysis of any

of these cases reveals that often the Record on Appeal

arose out of a summary vs. plenary proceeding.' Every

time an appellate Court passes judgment on an entire

class of cases without all ofthe facts, the court potentially

issues an uninformed ruling which will mushroom at an

alarming rate as the rulings are passed from court to

court, summary judgment to summary judgment.” An

analysis of the factsis necessary before an analysis of the

law makes any sense in a given circumstance. While this

court has some of the facts that relate to the accident in

' For example, the panel decision discusses at length the

jurisdiction ofthe District Court. The Court did not have the benefit

of the entire record and therefore was unable to determine why

plaintiffs/appellants chose not to object to the District Court’s

jurisdiction. For example, immediately after the removal, a sum-

mary judgment motion was filed on behalf of Pines Trailer Corp.

The basis of that motion were verified documents establishing that

the trailer was manufactured by Road Systems and not Pines

Trailer. Plaintiffs/Appellants had assumed that Pines was a proper

party defendant because a Pines trailer was photographed by

defendant Consolidated-Freightways’ expert during an accident

reconstruction. The expert filed an affidavit stating it was an error.

At this point plaintiffs/appellants filed a memo consenting to the

entry of the summary judgment in favor of defendant Pines Trailer

Corp. This constituted a voluntary dismissal and the case would

have been removable at that time in any event. Counsel for

plaintiffs/appellants also understood that the District Court had

concurrent jurisdiction and it would have been pointless to argue

the merits of counsel’s “honest beliefs” when it was apparent that

they were “honestly” wrong. With the consent of the client the

decision was made to go quietly and not create a non-issue that

could have been the subject of an appeal at a later time. Further-

more, this seemed not only to be the prudent and expedient choice

but the honorable thing to do as well.

? Look at this Court’s recent reversal of two Summary cases

based upon erroneous application of Daubert.

— A-37 —

question, the record is woefully inadequate particularly »

as it relates to the defendant/appellee’s affirmative de-

fense based upon compliance with a single design stan-

dard of the entire regulatory code. They put in the seat

belt. They did nothing more and they could accomplish

no less because there was nothing less to do other than

not put in any type of passive restraint. There is abso-

lutely no evidence that the defendant/appellee ever tested

this vehicle to determine whether or not it complies with

the performance aspects of the FMVSS. On the contrary,

as will be pointed out herein and as was established in

our brief, there is evidence that defendant/appellee never

tested this vehicle. They have pleaded that they met

the requirements of FMVSS #208. Rule 12(b) of the

FRCP establishes that this is an affirmative defense.

The only proof to support that affirmative defense is the

installation of the manual, self-adjusting, “Type 1” lap

belt. Once again, they have done nothing more and they

could not have done anything less.

The defendant’s reliance on the FMVSS requires proof

that they met the entire standard and not simply the

threshold factual analysis that they installed a single

piece of equipment “authorized” by theregulatory scheme.

The FMVSS cannot be react piecemeal. The regulations

regarding “crashworthiness” must be read in their en-

* There is no definition of crashwortliness in the standard.

However, at the National Highway and Traffic Safety

Administration’s Web page there is a definition of “crashworthi-

ness” in the area referred to as “research and development”. It

describes crashworthiness as the “use of occupant restraint

systems and changes to the vehicle structures to minimize the

severity of occupant injuries” (Exhibit 1). In so doing, NHTSA

acknowledges the relationship between vehicle structure and the

passenger restraint system. Meeting the design standard of the one

without consideration of the other would (sic) futile and foolish.

i.

tirety and certainly together as they relate to the scope

and purpose of the standards to wit:

S1. Scope. This standard specifies

(emphasis added x 3 [bold, ital-

ics, & underlined)) for the protection of vehicle

occupants in crashes.

S2. Purpose. The purpose of this standard is to

reduce the number of deaths of vehicle occu-

pants, and the severity ofinjuries, by specifying

vehicle crashworthiness requirements in terms

of forces and accelerations measured upon an-

thropomorphic dummies in test crashes, and by

specific (sic) the specifying (sic) equipment re-

quirements for active and passive restraint sys-

tems.

All four judges that have addressed this issue have

obviously concluded that any equipment that is speci-

fied and installed has presumably been tested and it

must have met the “performance requirements” of the

FMVSS. But is this true? Where is the proof? In the

absence of either testing or proof of “performance” every

judge who has looked at this case is necessarily ruling

| upon a statutory affirmative defense that is unequivo-

cally a holographic image that owes its existence to

nothing more than regulatory “smoke and mirrors”.

Furthermore, despite our best efforts, we have been

unsuccessful in our attempts to get the Courts to con-

sider the undisputed fact that no definitions of “crash-

| worthiness” can be found in the standards. Similarly,

| there are no standards for the complete construction of

the passenger-driver compartment of the vehicles gov-

- ia

~itheo—

erned by this regulatory scheme.‘ We have been unable

other “standards” in the regulatory scheme and in par-

ticular S5 & S6 relating to “crash protection require-

ments” and “injury criteria” to determine “crashworthi-

ness" performance. For example on page 10 of the opin-

ion, Judge Wood, writing on behalf of the panel, states,

The record before this court does not contain a single

scintilla of evidence that this vehicle meets “the crash-

worthiness standards of FMVSS No. 208” as suggested

by the panel decision. Assuming, arguendo, that FMVSS

208 applies to “crashworthiness” as suggested by its title

and assuming further that its purpose and scope must

necessarily relate to that definition, then “crashworthi-

ness” must be defined in terms of performance standards

to prevent injuries. Therefore, the true “crashworthi-

ness” standards are set out in S5 & S6 of standard 208.

* When this case is tried there will be evidence that auto

manufacturers use passenger compartment cages in their small

and mid size cars presumably because the passenger restraint and

injury criteria cannot be met unless there is a marriage of

passenger restraint and structural performance.

* Where does the standard address the issue of high profile

impacts?

i ih on

Those standards are silent as to the construction of the

vehicle structure. There is absolutely no evidence that

the defendant/appellee met or exceeded those standards

in anyway, shape, or form. There is only one piece of

evidence before this court. The evidence that the defen-

dant chose to meet the equipment requirements (design

requirements) with the most cost effective (cheap) equip-

ment option available to them. Sometimes it is best to

observe a phenomenon from the opposite viewpoint. If

this bus had been delivered without any type of passive

restraint equipment specified in FMVSS No. 208 and

this same collision occurred, should the plaintiff be

granted a summary judgment and go to the jury on

damages only or should the trial court require the plain-

tiff to prove that the presence of the seat belt would have

met the performance aspects of the standard or, more

simply stated, that it would have made a difference?

Fortunately, this court need look no further than its

own decision in DePaepe vs. General Motors Corp., 141

F.3d 715, 718 (7th Cir. 1998). Briefly, in that case the

piaintiff pleaded that the failure of General Motors to put

a padded visor in Its car in violation of FMVSS No. 201

was substantially all that the plaintiff was required to

prove in order to retain a substantial verdict. This court

held unequivocally that the presence or absence of a

design standard feature does not address the more criti-

cal issue of performance. The panel decision is in direct

conflict with the holding of this Court on the issue of the

necessity to prove the performance or a lack of perfor-

mance as part of a claim and therefore presumably of

a defense. It would be fundamentally unfair to require

the plaintiff in an automotive product liability case to

prove lack of performance when a design standard has

not been met by the manufacture and yet require no

proof on the part of the manufacturer that met a design

— A-41—

standard that they also met the requisite performance

standard.

Likewise, the United States Court of Appeals for the

Fifth Circuit has clearly issued an authoritative opinion

that discusses the issue of design vs. performance. Perry

us. Mercedes-Benz of North America, Inc. , 957 F.2d 1257,

1266-68 (5th Cir. 1992). The Fifth Circuit ruling is

actually in keeping with the ruling and Geier, supra. In

its opinion the Fifth Circuit states that even ifthe design

theoretically met minimal performance standards, the

manufacturer could still be sued because the driver was

injured in a collision wherein the forces were well within

those forces that the standard was attempting to elimi-

nate, i.e. it didn’t work.* Unlike Geier and unlike the

panel decision herein, the facts of the accident are clearly

enumerated in the Fifth Circuit’s opinion. The plaintiffs

argument was that the speed of her car at impact was in

excess of the trigger speed enumerated in the FMVSS

and that the air bag should have deployed but it failed to

do so. Also, the argument clearly related to a collision in

an earthen ditch versus a concrete barrier collision

which is, of course, the subject matter of FMVSS No. 208.

The Court in Perry obviously assumed that Mercedes-

Benz met both the design and the performance stan-

dards of section 208. Notably, however, the opinion is

silent on the issue of whether or not Mercedes-Benz

* In Perry, supra, the plaintiff drove into a ditch at the end of a

“T intersection and received substantial injuries to her teeth and

mouth.. She claimed she was traveling between 40-50 mph at

impact and Mercedes had “expert” and eyewitness evidence that

she was traveling between 10-20 mph. Not coincidentally, the

trigger speed for the mechanism was 15 mph. She was not wearing

a seat belt. The air bag failed to deploy. In Hurley the parties agree

as to the speed and more importantly the delta V of the bus whereas

the parties in Perry disputed the accident speed as the time of

impact.

— 42 —

introduced evidence that they had tested and met the

performance standards. Clearly, there was evidence that

they had met the design standards.’

The Supreme Court in Geier, supra, specifically ad-

dresses the issue of design compliance versus perfor-

mance compliance. It is respectfully submitted that the

panel decision has failed to direct its attention to the

Supreme Court’s analysis of this critical distinction.

Early in his opinion Justice Breyer makes reference to

the Amicus brief of the United States. Justice Breyer

uses FMVSS No. 105 (1999) to illustrate his analysis.

Section 105 sets forth requirements for braking dis-

tances. Only certain vehicles are required to have antilock

brakes. However, if a vehicle fails to perform to the

minimal performance standards, i.e. braking distance,

an argument that the vehicle should have been equipped

with antilock breaks would not be preempted as a

matter of law. (Jd. 1918)

At the time of oral argument, Judge Wood inquired of

counsel as to whether or not Plaintiffs/Appellants be-

lieved that the Supreme Court would look at the facts of

any particular collision as part of their decision-making

process as those facts might relate to the FMVSS. The

undersigned responded “unfortunately, probably not.”J

was wrong! The Supreme Court has specifically stated

that an analysis of the collision facts as they relate to

7 How many members of this court have purchased new toilets

that come with the newly regulated 1.6 gallon tank which is

designed to save water? How many members of this court have had

to flush their toilets two and three times to accomplish what the old

2.5 gallon tanks used to accomplish in a single flush. The new tank

meets the design standard but when it doesn’t perform it uses more

water than the old. Nothing has been accomplished and in fact the

situation is made worse despite the compliance with the design

feature!

— A-43 —

performance is obligatory in the final analysis. As indi-

cated previously, the opinion of the Supreme Court is

silent on the issue of testing by American Honda. This

court, on the other hand, is blessed with the established

fact that the defendant/appellee have testified under

oath that they never tested the front of this vehicle

in a barrier collision to determine whether or not

it met the standards set forth in S5 or S6of FMVSS

No. 208 (Appellants Appendix p. 79)° (attached hereto

for the Court’s convenience)

8 When this case is tried it will be established that this is one of

those wonderful half truths that this defendant has hidden behind

throughout the course of discovery in these proceedings. For

example, MCI denied that it had any engineering drawings for the

MC-12 which is the model involved in this collision. It was designed

and built largely with the drawings for its predecessor model the

MC-9. Therefore it was “true” that there were no specific drawings

labeled MC-12. Judge Proud found them guilty of bad faith and

reopened discovery. Likewise it is true that MCI never dida barrier

test on this bus. In 1999, long after Judge Proud’s order and the

docketing of this appeal, plaintiffs/appellants counsel came into

possession of documents that establish that some testing had in fact

taken place. The whole truth and nothing but the truth would have

included the fact that MCI purchased the bus manufacturing

division of General Motors and that GM did perform a barrier test

with anthropomorphic dummies but at only 25 miles per hour. The

front of the bus collapsed and the driver (dummy) sustained

crushing injuries to his lower extremities, his chest smashed the

steering wheel and it sustained a severe head injury whichis visible

by reason of the divots in forehead of the driver (dummy). Barrier

Coilision and Related Impact Sled Test on Buses in I ntercity Service

1965. Plaintiffs/Appellants have also obtained a copy of the video

that was generated at the time of the barrier crash and both the

video and report are available if the Court wishes to review the

same. In 1987 Greyhound Corp. the parent corporation of MCI

purchased the remnants of the GM bus manufacturing business

including its engineering staff who subsequently worked on MCI

coaches. Modern Intercity Coaches, by Larry Plachno, 1997 pp. 37-

39.

— A-44 —-

On July 25th, 2000 (the same day that this court

decided Hurley) the 10th Circuit reached the exact oppo-

site conclusion on a preemption case and in so doing

actually reached the same conclusion as the Fifth Cir-

cuit in Perry, supra. Choate vs. Champion Home Build-

ers Company, 2000 WL 1022251, page 3 & 5 (10th Cir.

(Okla.). That case involved a claimed preemption under

the Manufactured Housing Act and regulations promul-

gated thereunder by the Department of Housing and

Urban Development (HUD). The 10th Circuit concluded

that the Plaintiffs’ claim was preserved because it “seeks

to establish greater safety than the minimum safety

achieved by a federal regulation intended to provide a

Floor. Geier, at 119". Applied to the facts of the Hurley

case, S5 and S6 of the FMVSS set the “minimum floor”

and the Hurley alternative design simply seeks to estab-

lish greater safety than minimum safety achieved by a

federal regulation intended to provide a floor. This, of

course, presupposes that the defendant met “the floor” in

the first instance which is a highly debatable supposi-

tion at best.

Justice Breyer’s opinion is consistent with the opinion

of Justice Thomas in Freightliner v. Myrick, supra, at

289, wherein the court specifically states that when an

area is unregulated there can be no preemption There

are absolutely no regulations, anywhere in FMVSS 208,

that plaintiffs/appellants have been able to locate that

set forth the design standards for the driver’s compart-

ment of a “forward control” vehicle. There is no dispute

that the vehicle in question is a “forward control” vehicle

as defined in FMVSS No. 3.° It is an unregulated area

® Forward controlled means a configuration in which more than

half of the engine length is rear-ward of the foremost point of the

windshield base and the steering wheel of it is in the forward

quarter of the vehicle length. 49 CFR 571.3.

— A-45 —

and therefore any attempts to argue a change in the

design that would help meet the standard asit relates to

the prevention of injuries and death and “performance”

are necessarily not subject to preemption.

The panel decision conflicts with this Court’s opinion

in Gracia, supra, because it misapplies the limited na-

ture of the ruling. Plaintiffs/Appellants believed that the

decision of this Court in Gracia, supra, was correct but for

the wrong reasons. 49 CFR 571.212 which relates to

windshields and more importantly how they are to be

affixed cannot be read in a vacuum. Section No. 212 of

the FMVSS specifically makes reference to glazing stan-

dards for the type of glass to be used in the driver’s

compartment of certain vehicles in order to take advan-

tage of the inherent strength of those types of glass to

prevent outside objects from entering the passenger

compartment at the time of the barrier collision and to

keep the passengers within the outer perimeter of the

passenger compartment. The Glazing Standard for pen-

etration protection applied to all vehicles including the

Volvo truck.'° Therefore, the manufacturers of forward

control vehicles are exempt from that portion of the

standard that relates to passenger retention. In. a for-

ward control vehicle such as this bus and the vehicle in

the Gracia, supra, there is no front of the bus or truck.

Also, in a barrier collision the front quarter of a forward

control vehicle will obviously be damaged which damage

could render the doors unusable. The pop out window is

therefore a necessary design feature allowing the driver

to egress the vehicle following a collision." Perhaps, the

” 49 CFR 571.205 S3.

1 49 CFR 571.205 S5.1.1.5 specifically states that buses must

have pop out windows because if the door is damaged in a collision

the passengers and driver have no way to exit the vehicle.

— A-46 —

best way to analyze Gracia is to look at it from a different

angle. Ifthe claim in that case was that the plaintiff was

badly injured because her lap belt caused severe inter-

nal injuries in the collision and the claimed defect was

the fact that the vehicle used seat belts and that under

certain circumstances it would be safer without them,

such a claim would clearly be preempted. What the

plaintiff was suggesting in Gracia amounted to requir-

ing the manufacturer to eliminate a safety feature (re-

quired) by the standard. Perhaps, stated in a better

_ manner, Volvo was exempt from this standard, The case

did not involve a question of choice because the standard

did not apply to the defendant. Volvo had no choice to

make in terms of performance. In Hurley, MCI was faced

with a choice as to how to meet the performance require-

ments of the FMVSS. This Court now has the opportu-

nity to establish the rule of law as to what the real issue

should be, “did they choose wisely”?

Everyday people on the highways of these of this

country are severely injured in motor vehicle collisions.

Many of them receive “enhanced injuries” due to either

design defects or performance failures of the vehicles in

question. Exhibit One, the research and development

definition specifically makes reference to the fact that

“once the crash is unavoidable, the emphasis is on pro-

tecting the occupants of motor vehicles from serious

injury or death”. The panel decision will eviscerate (to

quote from Judge Wood) the ability of injured plaintiffs

to prosecute claims arising out of lack of performance.

The panel opinion is fundamentally wrong and funda-

mentally unfair. Not only is this court in danger of

throwing out the baby with the bath water, but it is in

danger of letting the tub slip through its fingers to

further injure the baby when it strikes same.

— A-47 —

evant or and therefore, anecdotal. Surely, this is not the

result that the panel decision intended? Plaintiffs/Ap-

pellants assume that the panel decision does not realize

the gravity and the devastatingly destructive nature of

such a sweeping statement.

In its opinion, the panel decision makes numerous

references to some of the problems that the panel per-

ceives with the Hurleys’ alternative design. Those argu-

ments, such as the alleged proclivity of professional

drivers not to wear three-point seat belts, the effective-

ness of the cage, the cost of the cage vs. its savings, and

the presence or absence of increased decelerations’*upon

the driver are all arguments that the defendant has

available when this case is tried on the merits.

Lastly, the panel decision makes reference to a so-

called “loophole” in the Geier decision. The “loophole”

relates to an argument that the individual vehicle in-

volved in the collision is so unique that changes are

2 We note for the benefit of the Court that the defendant/

appellee will have a difficult time establishing this argument

because they have never(?) tested the vehicle and presumably do

not know what the decelerations were before plaintiffs/appellants

tested the cage through a computer analysis! How can one argue

that decelerations have been increased or decreased without any

data to form a statistical threshold?

a ee

necessary to that vehicle and that vehicle only. With all

due respect to Justice Breyer and to Judge Wood, such a

statement begs the threshold question as to whether or

not the entire class of vehicles are inherently dangerous

as a group How many of us have made the following

statement as part of our parenting experience, “I don’t

care what everyone elseis doing, I only care what you are

doing and just because everyone else is doing what you

want todo, does not make it right”. Plaintiffs/Appellants

don’t care if every bus manufacturer is presently manu-

facturing inherently dangerous buses. They only care

about the bus that destroyed Mr. Hurley’s legs and life

and what other manufacturers are doing with regard to

the manufacture of their intercity buses is simply not

relevant.

Throughout my career it has always been suggested

that it is improper to make a personal appeal to the jury

or ajuror. Presumably, such a prohibition would apply to

an appellate court. However, due to the serious nature of

the issues before this court, counsel feels compelled to

ask the question, “if your child or grandchild came home

and told you that he or she was about to become the

driver of an intercity bus, would you tell your relative not

to worry about any dangers with respect to “crashworthi-

ness” of the glass front because it has a two point seat

belt”? More importantly, do members or this court ad-

vise their family not to sit in the front of the bus, like I do

with my children when they go on school sponsored bus

tours, because we both understand and appreciate that

the front of the bus is a potential death trap.

CONCLUSION

In the final analysis, this Court is faced with an

engineering question and not a legal one. When a defen-

— A-49 —

dant such as defendant/appellee MCI request that judges

render decisions on engineering questions it is not un-

like attorneys requesting a panel of engineers, highly

trained and highly educated, to determine the constitu-

tionality of the line-item veto. We members of the legal

profession would not want engineers to make a legal

determination and likewise we members of the legal

profession should leave engineering questions as to per-

formance, in particular, to the engineers.

Mr. and Mrs. Hurley are entitled to present their case

to a jury of their peers and to present their engineering

arguments as to the lack of performance of the MC-12

vehicle in question and to allow the jury to determine the

facts and to apply those facts to the law as instructed by

the trial court. The issues raised by the defendant in

terms of a factual analysis of the performance of the

alternative design vs. the performance or lack thereof of

the present design constitute the stuff of which great

trials are made. Please! Permit the Hurley’s to try this

case on the merits. If after reviewing the record of a

plenary proceeding, the District Court or this Court

determines that reasonable minds could not have dif-

fered on the performance issues then, and only then,

should such a decision be rendered by the Court in favor

of either the plaintiff/appellants or the defendant/appel-

lee. A decision based upon a plenary record.

WHEREFORE, plaintiffs appellants respectfully re-

quest and petition this court to grant either a Panel

Rehearing or in the alternative a Rehearing en Banc, to

restore the case to the calendar for re-argument or re-

submission, to make a final disposition remanding this

matter to the District Court for a trial on the merits and

for such other relief and or appropriate order that is just

and proper in the premises.

— A-50 —

Respectfully submitted,

THOMAS C. DEVOTO, PC

By: Thomas C. DeVoto

Attorney for Plaintiffs/Appellants

Manchester Professional Building

9322 Manchester Rd.

St. Louis, MO 63119

(314) 961-0097 Ext. 12

(314) 961-0667 (Facsimile)

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that upon informa-

tion and leaf, Plaintiffs/appellants petition for re-hear-

ing or re-hearing in bond (sic) is in compliance with

Rules 35 and 40 of the Seventh Circuit Court of Appeals.

/s/ Thomas ©. DeVoto

Thomas C. DeVoto

Attorney for Plaintiffs/

appellants

CERTIFICATE OF SERVICE

Pursuant to this Court’s local rules and the applicable

federal rules of appellate procedure, the undersigned

hereby certifies that two copies of the foregoing were

served upon defendant/appellee by mailing of the same

United States postage prepaid to Mr. Peter W. Herzog,

One Metropolitan Square, 211 North Broadway, Suite

3600, St. Louis, MO 63102.

/s/ Thomas C. DeVoto

Thomas C. DeVoto

Attorney for Plaintiffs/

appellants

~<hek

EXHIBIT |

NHTSA Research & Development

Crashworthiness

Once a crash is unavoidable, the emphasis is on

protecting the occupants of motor vehicles from

serious injury and death. The Crashworthiness re-

search program seeks to use occupant restraint

systems and changes to the vehicle structures to

minimize the severity of occupant injury.

ny ney ee et, tro Sek oe

— A-52 —

DEPOSITION TRANSCRIPT

DEPOSITION OF: MARK WILKINS

TAKEN BY: MR. T.C. DEVOTO

DEPOSITION DATE: AUGUST 21, 1997

x* * *

[87]

Q. Can you tell me, sir, are you aware of any studies

— and I will use the word studies — that MCI or MCI

Limited or any of the other affiliated corporations had

done with respect to dealing with what happens when

there is driver compartment intrusion, how to prevent

that?

A. How to prevent intrusion?

Q. Yes,sir?

A. No.

Q. Would you agree with me that the bumper and

impact loading that is associated with it on the MC12

was designed taking into consideration an impact with

essentially an automobile or some similar type of ve-

hicle?

A. Most of the vehicles on the [88] highway are of

that type, that height.

Q. It was designed because most of the vehicles on

the highway are that height?

A. Yes.

— A-53 —

APPENDIX D

No. 89-46

In Tue

Supreme Court of the United States

Ocroser Term, 1989

Patricia M. Woop, ETAL., PETITIONERS,

Vv.

GENERAL Motors CORPORATION,

On PETITION For A Writ oF CERTIORARI TO THE UNITED

STaTES CouRT OF APPEALS FOR THE FIRST Circuir

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE

KENNETH W. STARR

Solicitor General

Sruart M. Gerson

Assistant Attorney General

PHILLIP D. Brapy JOHN G. RoBERrts, JR.

General Counsel Deputy Solicitor General

STEPHEN P. Woop Pau J. LARKIN, JR.

Acting Chief Assistant to the Solicitor

Counsel General

(continued on next page)

————— en

ain Ail une

KENNETH N. WEINSTEIN Douc.as N. LETTER

Assistant Chief JOHN F.. DALy

Counsel Attorneys

National Highway Department of Justice

Traffic Safety Washington, D.C. 20530

Administration (202) 633-2217

Department of

Transportation

Washington, D.C.

20590

if SS

QUESTION PRESENTED

Whether Section 103(d) of the National Traffic and

Motor Vehicle Safety Act of 1986, 15 U.S.C. 1392(d), or

Federal Motor Vehicle Safety Standard 208 preempts a

state common law design defect tort action based on the

failure to install an airbag in a motor vehicle.

— A-56 —

* * *

3. For the reasons given above, we disagree with the

court of appeals’ holding that design defect claims are

impliedly preempted by Section 103(d). IfSection 108(c)

preserves those actions, they do not conflict with “Con-

gress’s chosen ‘method of increasing automobile safety,”

Pet. App. 37a, because that method includes common

law liability for design defects. Holding manufacturers

liable for defects in vehicles designed in compliance with

federal standards would frustrate that method only if

the Act bestowed on manufacturers an immunity from

the incentives that the tort system can provide, and

Section 108(c) disproves the existence of any such immu-

nity.

At the same time, Section 108(c) does not preserve all

design defect claims. The purpose of the Safety Act “is to

reduce traffic accidents and deaths and injuries to per-

sons resulting from traffic accidents,” 15 U.S.C. 1381,

and the primary method that Congress chose to carry

out that purpose was to empower the Secretary to ‘ssue

motor vehicle performance standards, 15 U.S.C. 1392,

1397. In some cases, holding a manufacturer liable for a

design defect could interfere with the Secretary’s efforts

to achieve the statutory objective. For example, if the

Secretary determined that a particular item of equip-

ment must have precise specifications in order to accom-

modate competing goals (e.g., a headrest that is large

enough to protect the driver, but not too large so as to

obscure his view), a state court could not hold a manufac-

turer liable under a design defect theory on the ground

that the device was too small (or too large) since the state

standard would expressly conflict with federal require-

ments. Or, if the Secretary directed manufacturers to

install only a specific passive protection system, a state

— A-57 —

court could not hold a manufacturer liable for not using

a different system. State tort law would be preempted in

such cases since it would be impossible to comply with

both federal and state law. Cf. Florida Lime & Avocado

Growers, Inc. v. Paul, 373 U.S. 132,142-143 (1963).

This case does not pose that type of conflict, but it does

involve a closely related one. In issuing the current

version of FMVSS 208, Secretary Dole rejected a pro-

posal that would have required airbags to be installed in

all vehicles, in favor of a rule encouraging manufactur-

ers to offer consumers a variety of passive protection

systems. She determined — based on a very substantial

history of consumer (and congressional) responses to

passive restraint requirements — that diversity would

promote motor vehicle safety by helping to ensure public

acceptance of passive protection systems," by encourag-

‘'In 1972, DOT adopted a rule requiring an interlock mechanism

preventing engine ignition unless manual seat belts were fastened.

That rule provoked a strong public reaction, prompting Congress

to ban the interlock requirement and impose procedural limita-

tions on DOT’s future efforts to require restraints other than seat

belts. Motor Vehicle and Schoolbus Safety Amendments of 1974,

Pub. L. No. 93-492, § 109, 88 Stat. 1482 (codified at 15 U.S.C.

1410b(b)). Given the public’s adverse reaction to the interlock

system, one factor the Secretary considered was the public’s

willingness to accept various passive restraint technologies. 49

Fed. Reg. at 28,987. See Pacific Legal Foundation v. DOT, 593 F.2d

1338, 1345-1346 (D.C. Cir.) (the Secretary must consider public

reaction to safety standards in order to determine whether a

particular standard is “practicable”), cert. denied, 444 U.S. 830

(1979). The Secretary found that some people were concerned

about the operation of an airbag protection system, le., some people

feared that the chemical used to inflate airbags would be hazardous,

that airbags would deploy inadvertently and thereby cause injury,

or that airbags would not deploy during an accident. 49 Fed. Reg.

at 29,001. The Secretary concluded that it would be easier to

(Footnote 11 continued on next page)

— A-58 —

ing the development of new and improved technolo-

gies,’* and by enabling the agency to acquire a more

extensive data base upon which future regulatory deci-

sions could be made. See 49 Fed. Reg. 28,962, 28,987-

28,997, 29,000-29,001 (1984). The Secretary also con-

cluded that an all-airbag requirement would be too

costly for consumers, due to replacement costs, and that

these cost considerations could lead consumers to de-

cline to replace airbags after they were deployed, which

could leave occupants without passive protection. Id. at

29,000-29,001.!* For similar reasons, the Secretary took

(Footnote 11 continued)

overcome these fears if airbags were not required in all vehicles.

Ibid. Emphasizing the public’s need “to become accustomed to the

technology and the need for protection,” Secretary Dole concluded

that “an across-the-board mandate too quickly could engender

adverse public reaction.” Jd. at 28,989. Given widespread public

concern about the safety and efficacy of airbags, the Secretary

concluded that “[i]f air bags were required in all cars, these fears,

albeit unfounded, could lead to a backlash affecting the acceptabil-

ity of air bags, * * * [including a possible] repent of the Interlock

2 The Secretary determined that experience could show that

automatic seatbelts would be used far more frequently than

anticipated, and that manufacturers might be able to develop better

and more acceptable automatic seatbelt systems. That develop-

ment may result in automatic seat belts that were as effective at

saving lives as airbags, but that did so at a lower cost. The Secretary

also concluded that an all-airbag requirement would unnecessarily

stifle innovation in occupant protection systems. 49 Fed. Reg. at

29,001.

'§ The Secretary estimated that airbags themselves will cost

$320 more per car than manual belts, and that they would increase

fuel costs by $39 and insurance costs by $18 over the life of the car.

The Secretary also estimated that the replacement cost for a

deployed airbag would be $800, which may lead some persons not

to have an airbag replaced. The Secretary found that automatic

seat-belts, by contrast, would cost only $40, would increase fuel

costs by only $11, and would have no post-deployment replacement

cost. 49 Fed. Reg. at 28,991, 29,000-29,001.

— A-59 —

steps to ensure that manufacturers installed airbags in

some of their cars. See page 3 notes 4-5, supra. Accord-

ingly, a critical feature of FMVSS 208 is the Secretary's

policy judgment that safety will best be promoted if

manufacturers install alternative protection systems in

their fleets, rather than one particular system in every

vehicle.

That policy is likely to be frustrated if manufacturers

are held liable for not installing airbags in their vehicles.

The incentive effects of state tort law are likely to be

_ particularly powerful in product liability cases involv-

ing deaths or serious injuries, where the damage awards

are likely to be large. While we know of no cases that

have gone to judgment involving alleged liability for not

installing airbags, the damages awarded in other prod-

uct liability cases against motor vehicle manufacturers

have been substantial."*Ifmanufacturers are held liable

for not installing airbags, the burden of paying sizeable

compensatory and punitive damage awards along with

[t]he centralized, mass production, high volume charac-

ter of the motor vehicle manufacturing industry in the

United States,” S. Rep. No. 1301, supra, at 12, islikely to

lead auto makers to install airbags in all cars. That

outcome would obviously eliminate the diversity that

the Secretary found necessary to promote motor vehicle

safety. At the least, holding manufacturers liable for not

installing airbags would drastically “interfere[] with the

methods by which [FMVSS 208] was designed to reach

[its] goal.” International Paper Co. v. Ouellette, 479 U.S.

4 E.g., Hall v. General Motors Corp., 647 F.2d 175(D.C. Cir. 1980)

(affirming judgment of $4.75 million); Sumnicht v. Toyota, U.S.A.,

Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984) (same, $2.35 million);

Grimshaw v. Ford Motor Co. 119 Cal. App. 3d 757, 174 Cal. Rptr.

348 (Ct. App. 1981) (same, more than $6 million).

— A-60 —

481, 494 (1987). Under these circumstances, design de-

fect tort actions would “stand[] as an obstacle to the

accomplishment and execution of the full purposes and

objectives of [the agency],” Hines v. Davidowitz, 312 U.S.

52, 67 (1941), and thus would be preempted by federal

law. See De la Cuesta, 458 U.S. at 155-159 (regulations

issued by the Federal Home Loan Bank Board per-

mitting federal savings and loan associations to include

due-on-sale clauses in mortgage contracts preempt con-

trary state law).

Respondent argues that FMVSS 208 preempts state

tort claims because that standard has always allowed

manufacturers to use various types of occupant restraints.

Br. in Opp. 6-11, 19-20. We disagree with this reasoning.

Nothing in the Safety Act or FMVSS 208 confers on car

makers a “right” to comply with the federal standards

without tort liability, and Section 108(c) proves that

Congress did not grant any such immunity. That state

tort law may compel an auto maker asa practical matter

to choose one of the options authorized by federal law

also does not necessarily establish an actual conflict

between federal and state law. Federal standards are

“minimum standard{[s],” 15 U.S.C. 1391(2), permitting

manufacturers to use any design that satisfies federal

requirements. If any design “permitted” in this sense

could not be the subject of a common law design defect

claim, manufacturers would obtain by implication what

Congress expressly denied them in Section 108(c): im-

munity from common law liability by complying with

minimum federal standards. That result would be con-

trary to Congress’s statutory design, which was to sup-

plant direct state regulation of vehicle design, but to

leave the common law intact absent an actual conflict

- —A-61—

with federal standards.“ Thus, the mere fact that manu-

facturers may comply with federal law by installing one

of several types of occupant restraint systems does not

mean, standing alone, that a state law tort action seek-

ing to impose liability for failing to install airbags is

preempted.

What distinguishes this issue from most is that the

Secretary determined not simply to allow either auto-

matic belts or airbags, but that an all airbag rule would

disserve the safety purposes of the Act. She therefore

affirmatively sought to encourage manufacturers to use

a variety of protection systems in their fleets. It is that

policy of affirmatively encouraging diversity that would

be disrupted by tort liability, which therefore would be

preempted. '®

‘* DOT has long taken that view. In a January 1981 letter by

Frank Berndt, Chief Counsel of NHTSA, written to counsel for one

of the parties in Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.

1980), cert. denied, 450 U.S. 959 (1981), DOT stated that, under

Section 108(c), compliance with a federal standard is nota defense

in a products liability action.

‘© Respondent errs in relying on 15 U.S.C. 1410b, Congress’s

response to the Secretary’s 1972 ignition interlock proposal, as a

basis for preemption. Br. in Opp. 5-6, 14-15. 20. Section 1410b

required the Secretary to rescind the interlock rule and imposed

additional procedural requirements on the Secretary’s ability to

issue regulations requiring occupant restraints other than seat

belts. 15 U.S.C. 1410b(b)-(d). Section 1410bisirrelevant to this case

for several reasons. First, it does not purport to modify either

Section 103(d) or 108(c), the two sections at issue here. Second,

Section 1410b purports to allow Congress to exercise a legislative

veto over the Secretary’s rule, but such provisions are now null and

void. INS v. Chadha, 463 U.S. 919 (1983). In any event, the

Secretary complied with Section 1410b when the 1977 version of

FMVSS 208 was adopted, and Section 1410b does not apply to

subsequent amendments to that standard. 15 U.S.C. 1410b(bX3XC).

— A-62 —

Section 108(c) does not require a contrary result. The

Court has repeatedly held that a clause preserving state

tort remedies should not be interpreted in a manner that

would lead the act to “destroy itself.” Texas & Pacific Ry.

v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907). See

also, e.g., Ouellette, 479 U.S. at 494. Compare Nader .

Allegheny Airlines, Inc., 426 U.S. 290, 298-300 (1976).

The most analogous decision is Chicago & N.W. Trans.

Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981). In Kalo

Brick, the Court held that a carrier could not be held

liable under state tort law for abandoning a railroad line

when the Interstate Commerce Commission had ap-

proved the carrier’s application for abandonment and

had considered the matters that the plaintiff sought to

raise in state court. Id. at 325-327. The Court so held

even though the Interstate Commerce Act had a savings

clause similar to Section 108(c) of the Safety Act. 450

U.S. at 328. That clause, the Court held, did not allow a

state court to second-guess the agency’s judgment on

matters committed toits discretion. Id. at 330. Thesame

is true here. The task of issuing regulations that would

implement the policies underlying the Safety Act was

committed to the agency’s care by that statute, cf. City of

New York v. FCC, 486 U.S. at 63-64, and the state tort

liability atissue here would disrupt the policy of encourag-

ing diversity in passive protection systems. Section

108(c) does not preserve tort claims that would obstruct

that or any other purpose of federal law.

4. Despite our disagreement with the approach to the

preemption issue taken by the court of appeals, we

nevertheless believe that review by this Court is not

warranted. Like the First Circuit, the Tenth and Elev-

enth Circuits and three state appellate courts have ruled

that federal law preempts a state law claim that a motor

— A-63 —

vehicle manufacturer can be liable for not installing an

airbag. Taylor v. General Motors Corp., 875 F.2d 816

(11th Cir. 1980),

x* * *

_

APPENDIX E

No. 94-286

In THE

ee ee

OcToBER TERM, 1994

-

FREIGHTLINER CORPORAATION, PETITIONER,

. Vv.

& BEN MYRICK, ET AL.,

NAVISTAR INTERNATIONAL TRANSPORTATION CORP.,

PETITIONER

V.

JACK LINDSEY, EXECUTOR OF THE ESATE AND SURVIVING

SPOUSE OF CRACE C. LINDSEY

ON Wrir OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS

CURIAE SUPPORTING RESPONDENTS

Drew S. Days, III

Solicitor General

STEPHEN H. KaPLan FRANK W. HUNGER

General Counsel Assistant Attorney General

(continued on next page)

— A-65 —

Paut M. GEIER EpwIn S. KNEEDLER

Assistant General - Deputy Solicitor General

Counsel for Paut R.Q. WOLFSON

Litigation Assistant to the Solicitor

PHILLIP R. RECHT General

Chief Counsel Douc.as N. Letrer

National Highway Paut D. Scorr

Traffic Safety Attorneys

Administration . :

Department of Justice

KENNETH N. WEINSTEIN Washington, D.C. 20530

Assistant Chief (202) 514-2217

Counsel for

Litigation

Department of

Transportation

Washington, D.C. 20590

— A-66 —

QUESTION PRESENTED

Whether respondents’ state common law tort actions

are preempted by the National Traffic and Motor Ve-

hicle Safety Act of 1966, 49 U.S.C. 30101-30169 (for-

merly 15 U.S.C. 1381-1431(1988 & Supp. V 1993)), or by

Federal Motor Vehicle Safety Standard 121, 49 C.F.R.

571.121.

Thus, under a straightforward reading of Section

1392(d) and Section 1397(k), taken together, States are

preempted from adopting prescriptive safety standards

by legislative or administrative action if NHTSA has

established a safety standard governing the same aspect

of performance. See also 108 Stat. 943 (codifying new

preemption provision, 49 U.S.C. 30103 (b), which states

that, when a federal standard is in effect, a State may

“prescribe or continue in effect” a standard only if iden-

tical to the federal standard “prescribed” under the Safety

Act). State courts however, are not precluded by those

provisions from entering tort judgments in cases raising

the claim that a vehicle or item of equipment was defec-

tively designed with respect to that same aspect of per-

formance.”

Petitioners argue (Pet. Br. 35-36), however, that a

general statutory saving clause must not be read to

unravel the legislative purpose embodied in the rest of a

'* NHTSA has long taken that view. In a January 8, 1981, letter

from Frank Berndt, Chief Counsel of NHTSA, to counsel for one of

the parties in Dawson v. Chrysler Corp., 630 F.2d 950(3d Cir. 1980),

cert. denied 450 U.S. 959(1981), NHTSA slated that, under Section

1397(k), compliance with federal standard does not provide a

defense under federal law to a products liability action. On Decem-

ber 26, 1990, NHTSA reiterated its position, in a letter from its

Chief Counsel, Paul Jackson Rice, to counsel for one of the parties

in Neilson v. Porsche, No. 87-87-1121 (D. Idaho) that, “as a general

matter, the fact that a motor vehicle complies with applicable

federal safety standards neither preempts state law tort actions nor

provides a complete defense to such claims.” See also U.S. Amicus

Br. 15, Wood v. General Motors Corp., No. 89-46. We are providing

counsel for the parties with copies of those letters and our brief in

Wood. We also are lodging copies of the letters with the Clerk of the

Court.

~_S

federal statute, including its preemption provision. That

proposition is not relevant to this case, for two reasons.

First, Section 1397(k) is not a general saving clause, but

is focused precisely on only one object of possible preemp-

tion under the Safety Act, common law liability. This is

not a case, therefore, where it is argued that “[a] general

‘remedies’ saving clause * * * supersede(s] the specific

substantive pre-emption provision.” Morales v. Trans

World Airlines, Inc., , 112S. Ct. 2031, 2037 (1992). Here,

the narrower provision is the saving clause, Section

1397(k), which specifically addresses the interaction of

compliance with federal safety standards and liability at

common law; that clause controls the more general pre-

emption provision, Section 1892(d)—evenifwe assume,

arguendo, that Section 1392(d) otherwise would, in itself

preempt a state common law cause of action (see pages

13-14, supra).

Second, there is no danger that our reading of Section

1397(k) will “undermine this carefully drawn statute.”

Morales, 112 S. Ct. at 2037. Congress enacted the two

sections at the same time and obviously perceived that

they could operate harmoniously. Cf. ibid. (specific pre-

emption clause at issue in Morales was enacted years

after general saving provision). Congress enacted Sec-

tion 1392(d) to assure manufacturers that they would

not have to conform their fleets to different and possibly

conflicting standards mandated by States and local ju-

risdictions, At the same time, itis clear that Congress did

not elevate uniformity to an absolute value in the Act.

For example, Congress provided that mandatory federal

safety standards are only “minimum standard(s),” 15

U.S.C. 1391(2), and it interposed no barrier to manufac-

turers exceeding those standards voluntarily, either

nationwide or in particular States.

— A-69 —

Admittedly, Section 1397(k), by preserving tort claims

against manufacturers who meet federal safety stan-

dards, creates some tension within the Safety Act, since

the Act also prevents States from directly prescribing

safety standards stricter than the standards prescribed

by NHTSA. It is therefore possible that a State’s judicial

system could indirectly impose a common law “standard”

of care ona vehicle manufacturer that a state legislature

or administrative agency could not impose directly

through the promulgation of “safety standards.” Con-

gress nevertheless decided to tolerate that tension, in a

compromise between the federal interest in uniformity

and the States’ traditional interest in compensating

victims of motor vehicle accidents, an area in which the

States have long measured defendants’ conduct against

standards of care articulated in the common law adjudi-

cation of tort claims.

Congress may have believed that any effect that state

tort liability might have on manufacturers’ decisions to

institute safely measures beyond those required by fed-

eral law would be less disruptive of the federal interest in

uniformity than positive performance standards adopted

by state legislatures or administrative agencies; it may

also have believed that state tort law should be permit-

ted to impose liability on a particular manufacturer for

failure toinclude a particular safety feature on a particu-

lar model, even if a State could not impose a uniform

standard applicable to all vehicles sold or operated in the

State. In short, Congress could “reasonably determine

that incidental regulatory pressure [of tort liability was]

acceptable, whereas direct regulatory authority [was]

not .Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 186

(1988), and the courts “can do no less.” Silkwood v. Kerr-

McGee Corp., 464 U.S. 238, 256 (1984).

— A-70 —

B. Respondents’ Claims Are Not Impliedly

Preempted By Either The Safety Act Or

Standard 12)

Petitioners also challenge the court of appeals’ hold-

ing that respondents’ tort claims are not impliedly pre-

empted by either the Safety Act or Standard 121. Al-

though we do not agree with the court of appeals’ reason-

ing, we do agree with its holding.

1. a. Under this Court’s settled preemption jurispru-

dence, state law is preempted “in three circumstances”:

First, Congress can define explicitly the extent to

which its enactments pre-empt state law. * * *

Second, in the absence of explicit statutory lan-

guage, state law is preempted where it regulates

conduct in a field that Congress intended the Fed-

eral Government to occupy exclusively. * * * Fi-

nally, state law is preempted to the extent that it

actually conflicts with federal law. Thus, the Court

has found pre-emption where it is imvossible for a

private party to comply with both state and federal

requirements * * * or where state law “stands as an

obstacle to the accomplishment and execution ofthe

full purposes and objectives of Congress.”

English v. General Elec. Co., 496 U.S. 72, 78-79 (1990) —

(citations omitted).

The court of appeals nevertheless believed that, be-

cause the Safety Act contains an express preemption

provision that it found (on the basis ofa presumption and

legislative history) to be a “reliable indicium” of

Congress’s preemptive intent, this Court’s decision in

Cipollone precluded any inquiry into the implied pre-

emption of respondents’ claims by the Safety Act or

— A-71—

Standard 121. See Pet. App. 11a. Although there is

language in the Cipollone opinion supporting the court

of appeals’ view, see 112 S. Ct. at 2618, we agree with

petitioners that the existence of an express preemption

provision should not, inn itself preclude all further in-

quiry into implied preemption, at least insofar as the

question is whether state law “actually conflicts with

federal law.” See English, 496 U.S. at 79.

Although Congress, when it enacts a statute, may

survey the statute’s intended reach and attempt toiden-

tify the field in which state authority should or should

not be ousted, it is unrealistic to expect that Congress

will foresee all the possible ways in which the States

might adopt measures in the future that would bear

upon the federal scheme. That is particularly true when

Congress enacted a statute, like the Safety Act (but

unlike the statute at issue in Cipollone), that takes effect

through administrative action. In the Safety Act, Con-

gress delegated standard-setting authority to the Secre-

tary of Transportation and identified principles gov-

erning the exercise of that authority; it did not prescribe

any safety standards itself, nor did it review the techni-

cal evidence concerning specific areas to be regulated by

the Secretary. Thus, Congress could not know exactly

how federal law would take shape as a result of the

administrative process, and it could not predict whether

or how States might adopt conflicting measures in the

future.?!

‘' The Court of appeals’ analysis may have greater force with

respect to implied field preemption, i.e., where, even "in the

absence of explicit statutory language, state law is pre-empted

where it regulates conduct in a field that Congress intended the

Federal Government to occupy exclusively." English, 496 U.S. at

79. In such situations, the “existence of an express pre-emption

(Footnote 11 continued on next page)

bl Ke ie OY, ada

wi tieten

While it is often said that the ultimate touchstone of

preemption analysis is Congress’s intent (see, e.g.,

Cipollone, 1128. Ct. at 2817; English, 496 U.S. at 78-79),

conflict preemption arises directly from the operation of

the Supremacy Clause (U.S. Const. Art VI, Cl. 2), rather

than from a specific intent on the part or Congress to

displace state law. Thus .,., holding of federal exclusion

of state law is inescapable and requires no inquiry into -

congressional design where compliance with both fed-

eral and state regulations is a physical impossibility.,

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 142-143 (1963). Similarly a state law that “stands

as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress” may be

impliedly preempted by a federal statute, even in the

absence of any expression of congressional intent to

supersede state law-making authority and even if the

state law does not fall within the scope of an express

preemption provision in the statute. See Jones v. Rath

Packing Co., 430 U.S. 519, 540-543 (1977). While im-

plied preemption does require consideration of Congress’s

intent to the extent of ascertaining the purposes that

(Footnote 11 continued)

provision tends to contradict any inference that Congress intended

to occupy a field broader than the statute's express language

defines." Cipollone, 112 S. Ct. at 2633 (Scalia, J., concurring in the

judgment in part and dissenting in part). Implied field preemption

rests less on the conclusion that stat

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