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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1148

## Text

()

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.

—lied preemp-
tion analysis even in cases involving an express preemption preemption
provision. See CSX, 113 S. Ct. at 1742.12; John Hancock Mut. Lifeock Mut. Life
Ins. Co. v. Harris Trust & Savings Bank, 1148S. Ct. 517,526 (1993).7, 526 (1993).
The same was true prior to Cipollone. See, e.g., Rath Packing, 43( Packing, 430
U.S. at 540, 543.

— A-76 —

the accomplishment and execution of the federal regula-
tory scheme. “The statutorily authorized regulations of
an agency will pre-empt any state or local law that
conflicts with such regulations or frustrates the pur-
poses thereof.” City of New York v. FCC, 486 U.S. 57, 64
(1988); see Capital Cities Cable, Inc., v. Crisp, 467 U.S.
691, 706 (1984). Therefore, whatever the force of the
court of appeals’ reading of Cipollone where the only
implied preemption claim in that state law conflicts with
a federal statute, in a case where, as here, ‘a narrow focus
on Congress’ intent to supersede state law [is] misdi-
rected,’ for “[a] preemptive regulation’s force does not
depend on express congressional authorization to dis-
place state law.” City of New York, 486 U.S. at 64 (cita-
tion omitted).

2. a. Although we believe that the court of appeals
should not have pretermitted its inquiry into implied
preemption, we agree with its ultimate conclusion that
respondents’ claims are not impliedly preempted. Re-
spondents’ tort claims clearly are not impliedly pre-
empted by the Safety Act itself, since nothing in the Act
itself regulates the use of ABS devices. Nor would a
finding of liability on respondents’ claims stand as an
obstacle to the full accomplishment of Congress’s objec-
tives in enacting the Safety Act. While a state law may
beimpliedly preempted “ifit interferes with the methods
by which the federal statute was designed to reach [its]
goal,” International Paper Co. v. Ouellette, 479 U.S. 481,
494 (1987), here, Congress’s chosen methods of increas-
ing automotive safety include both the establishment of
federal minimum standards and the preservation of
common law tort liability on the part of even those
manufacturers that comply with those standards.

— A-77 —

b. Nor are respondents’ claims impliedly preempted
by Standard 121. Underlying petitioners’ submission to
the contrary is a premise with which we fundamentally
disagree. Petitioners contend that the Ninth Circuit’s
decision vacating the stopping distance and stability
requirements or Standard 121 as applied to trucks and
trailers, or NHTSA’s 1979 amendment of the Standard
following the court’s order, “effectively gave the manu-
facturers the option [under federal law] of not installing
{an ABS] device.” Pet. App. 10a; see Pet. Br. 11, 14, 16.
Thus, they argue that any state law that forecloses that
“option” must be preempted. In fact, neither NHTSA nor
the Ninth Circuit determined that ABS devices are
inherently unsafe or that the Safety Act requires that a
manufacturer have the unfettered option not to install
them. Because there has been no such federal determi-
nation, a state law claim based on the failure to install an
ABS device would not conflict with federal law; the Court
need not address how the implied preemption issue
might be resolved in a case in which NHTSA had made
such a determination.

i. The Ninth Circuit did not affirmatively determine
in Paccar that ABS devices would present an unreason-
able risk to safety. Rather, applying either the “substan-
tial evidence” or arbitrary and capricious” standard of
review to NHTSA’s rulemaking record, 573 F.2d at 636
(see Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 41, 44 (1983)), the Ninth Circuit
concluded only that NHTSA had erred by failing to take
into account at that time evidence of serious safety
problems presented by mass production of ABS devices,
and by limiting its review of the evidence to the perfor-
mance of ABS devices at the manufacturing stage. Thus,
while the court set aside the provisions of Standard 121
that would have required installation of ABS devices in

—

trucks and trailers until NHTSA undertook a more
thorough review of the evidence, it did not direct NHTSA
to promulgate a standard prohibiting installation of
ABS devices or preclude NHTSA from concluding, after
further review (or after subsequent technological ad-
vances), that ABS devices should be required, either
directly or indirectly through the imposition of braking
performance criteria.’* The court made clear that “[t]he
agency may, of course, continue to propose new stan-
dards, including the promulgation of new stopping dis-
tance requirements to replace those here invalidated,”
and that it held “only that more pro[bJative and convinc-
ing data evidencing the reliability and safety of vehicles
that are equipped with [ABS devices] and in use must be
available before the agency can enforce a standard re-
quiring [their] installation.” 573 F.2d at 643."

ii. NHTSA likewise has never concluded that instal-
lation of ABS devices by truck manufacturers would
contravene the purposes of the Safety Act, or that manu-
facturers who choose the “option” of not installing such

‘8 Any such order would have exceeded the proper scope of
judicial review. See FPC v. Idaho Power Co., 344 U.S. 17, 20(1952);
FCC v. Pottsville Broadcasting Co., 309 U.S. 134 (1940); see also

* Even if the Ninth Circuit had made an affirmative determina-
tion on the administrative record before it in 1978 that ABS devices
presented a sufficient risk to safety that they should not be
mandated on a nationwide basis, such a ruling could not preclude
a trial court or jury in a private tort suit (presumably brought by
plaintiffs who were not parties to the judicial review of NHTSA’s
standard) from finding that it was unreasonable for an ABS device
not to have been installed on a particular vehicle. Nor would it bar
the court orjury in such a suit from concluding that technology and
other circumstances had sufficiently evolved since 1978 that it had
become unreasonable for the manufacturer not to install ABS
devices on trucks built in later years.

— A-79 —

devices should be protected from the consequences of
that choice. The court of appeals’ vacatur of Standard
121 left a regulatory gap.in the area of stopping dis-
tances that NHTSA has not yet filled; the situation
therefore is the same as if NHTSA had never instituted
rulemaking concerning stopping distances for trucks
and trailers, or had done so but never issued any stan-
dard. In such a situation, respondents’ claims would not
be impliedly preempted:

In [some] cases, Congress has passed statutes which
initiate regulation of certain activities, but where
effective regulation must wait upon the issuance of
rules by an administrative body. In the interval
before those rules are established, this Court has
usually held that the police power of the state may
be exercised. * * * [And] where extensive regula-
tions have been made, if the measure in question
relates to what may be considered a separable or
distinct segment of the matter covered by the fed-
eral statute and the federal agency has not acted on
that segment, the case will be treated in a manner
similar to cases in which the effectiveness of federal
supervision awaits federal administrative regula-
tion[.] The states are in those cases permitted to use
their police power in the interval.

Bethlehem Steel Co. v. New York State Labor Relations
Bd., 330 U.S. 767, 773-774 (1947) (citations omitted).

_ Petitioners suggest (Pet. Br. 32) that this case is more
analogous to one in which the “failure of the federal
officials affirmatively to exercise their full authority
takes on the character ofa ruling that nosuch regulation
is appropriate or approved pursuant to the policy of the
statute.” See Bethlehem Steel, 330 U.S. at 774. NHTSA,

— A-80 —

however, has not made any such determination about
ABS devices in trucks and trailers. To the contrary,
NHTSA explained when it amended Standard 121 in
1979 that ABS devices promote safety; it has encouraged
manufacturers to install them; and it has given manu-
facturers guidance as to “reasonable standards for mini-
mum acceptable performance” for ABS devices. 44 Fed.
Reg. 46,849 (1979). NHTSA also declined, after the
Paccar decision, to order the removal of ABS devices
from trucks and trailers manufactured to meet Standard
121. 43 Fed. Reg. 48,647 (1978). NHTSA in fact is of the
view that “ABS are very effective in providing short
stable stops in all operating conditions,” 58 Fed. Reg.
11,012(1993), andit currently estimates that “the use of
ABS on all heavy vehicles would help prevent between
379 and 600 fatalities, [and] between 19,825 and 34,517
injuries [annually],” id. at 50,754."

NHTSA’s support for ABS devices can be contrasted to
its findings, in the 1984 version of Standard 208, 49
C.F.R. 571.208, concerning installation of airbags in
passenger vehicles. In promulgating that Standard, the
Secretary concluded that, because of a history of sub-
stantial consumer resistance to automatic, or passive,
occupant restraint systems, passenger safety would be
best served by a diversity of such restraint systems,
including but not limited to airbags, which would pro-
mote public acceptance of passive restraints. The Secre-
tary explicitly determined that an all-airbag rule would
have disserved the safety purposes of the Act. See 49 Fed.
Reg. 29,001(1984). As we explained in our amicus curiae
brief in Wood v. General Motors Corp., No. 89-46, com-

5 The United States takes no position on the merits of respon-
dents’ specific claims that petitioners’ failure to install ABS devices
violated a common law duty of care.

ei

mon law tort actions that imposed liability for failure to
install airbags (as opposed to other types of passive
restraint devices) could, as a practical matter, have
compelled manufacturers to install airbags in all their
new vehicles. Because such a result would have frus-
trated the Secretary’s policy judgment and would have
had an adverse effect on safety, we argued in Wood (U.S.
Amicus Br. 11-15) that such suits were preempted."
Interference with that federally protected freedom of
choice through state tort judgments would have con-
flicted with Standard 208. Compare Building & Con-
struction Trades Council v. Associated Builders & Con-
tractors, 113 S. Ct. 1190,1194-1195 (1993).

‘© Although the majority of courts to have considered the
question have concluded that “no-airbags” suits are preempted,
they have done so on a broader theory of implied preemption with
which the United States does not agree, i.e., that the existence of
“options” tocomply with Standard 208 in itself precludes state-court
judgments based on the failure to install one particular option. See,
(e.g., Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir.), cert.
denied, 498 U.S. 853 (1990); Taylor v. General Motors Corp., supra;
Kitts v. General Motors Corp., 875 F.2d 787 (10th Cir. 1989), cert.
denied, 494 U.S. 1065 (1990); Wood v. General Motors Corp., 865
F.2d 395 (1st Cir. 1988), cert. denied, 494 U.S. 1065 (1990). In
response to legislation (see NHTSA Authorization Act of 1991, Pub.
L. No. 102-240, Tit. II, Pt. B, § 2508, 105 Stat. 2084), NHTSA has
recently amended Standard 208 to require that all cars manufac-
tured on or after September 1, 1997, and all light trucks manufac-
tured on or after September 1, 1998, be equipped with airbags in the
driver’s and front outboard passenger’s seats. 58 Fed. Reg.
46,551(1993).

— A-82 —

NHTSA has taken no analogous regulatory step
through Standard 121 in the area of ABS devices.”
Indeed, at present there is no federal motor vehicle
safety standard in effect at all requiring ABS devices or
imposing stopping distances for trucks and trailers that
use air brakes. Respondents’ tort claims therefore do not
conflict with Standard 121. Compliance with both Stan-
dard 121 and a state law duty of care requiring installa-
tion of ABS devices would not be a physical impossibility,
since nothing in Standard 121 prevents manufacturers
from installing such devices.'* Nor would state tort liabil-
ity stand as an obstacle to the full accomplishment ofthe
purposes of Standard 121, since that Standard does not
reflect any determination by NHTSA that installation of
ABS devices would be contrary to the safety objectives of
the Act. NHTSA has consistently held the view that ABS
devices promote passenger safety, even though there is
no regulation in effect requiring those devices. Because
“the Secretary has [nJeither promulgated his own * * *
requirement * * * [nor] decided that no such requirement

'' NHTSA’s construction of Standard 121, including that it
confers no federally protected right to choose whether or not to
install ABS devices that must in turn be free from the incidental
effect of common law tort suits, Is entitled to substantial deference.
Thomas Jefferson University v. Shalala, 114S. Ct. 2381, 2386-2387
(1994); Gardebring v. Jenkins, 485 U.S. 415, 429-430 (1988).

‘8 As we pointed out in Wood (U.S. Amicus Br. 11), there may be
situations in which it would be impossible for a manufacturer to
comply with both a state common law duty of care and a federal
standard. If, for example, NHTSA determined that a particular
item of equipment must have precise specifications to accommo-
date competing goals (e.g., a headrest that is large enough to
protect the driver but not so large as to obscure his view), acommon
law duty of care requiring the installation of a larger (or smaller)
headrest could directly conflict with the federal requirements and
be preempted.

— A-83 —

should be imposed at all,” Ray v. Atlantic Richfield Co.,
435 U.S. 151, 171-172 (1978), NHTSA’s 1979 amend-
ment of Standard 121 does not preempt respondents’
claims.

* * xX

— A-84 —

APPENDIX F
No. 98-1811

Supreme Court of the United States

ALEXIS GEIER, ET AL., PETITIONERS,

V.

AMERICAN HonpDA Motor ComMPANY, INC., ET AL.,

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE SUPPORTING AFFIRMANCE

SeTH P. WAXMAN
Solicitor General
Counsel of Record

Nancy E. McFappEn Davin W. OGDEN

General Counsel Acting Assistant Attorney
Paut M. GEIER General
Assistant General LAWRENCE G. WALLACE
Counsel for Deputy Solicitor General
Litigation Matruew D. RoBErts
’ Assistant to the Solicitor
General

(continued on next page)

— A-85 —

FRANK SEALES, JR. Douc.as N. LETTER
Chief Counsel KATHLEEN MorIARTY MUELLER
National Highway Attorneys
Traffic Safety Department of Justice
Administration Washington, D.C.
Department of ~ 20530-0001
Transportation (202) 514-2217
Washington, D.C.
20590

— A-86 —

QUESTION PRESENTED

Whether the National Traffic and Moor Vehicle Safety
Act of 1966, 15 U.S.C. 1881 et seq. (1988), or Federal
Motor Vehicle Safety Standard 208, 49 C.F.R. 571.208
(1987), preempts a state common law tort claim that an
automobile manufactured in 1987 was defectively de-
signed because it lacked an airbag.

— A-87 —

B. Standard 208 Impliedly Preempts Peti-
tioners’ Tort Claims.

State lawis impliedly preempted ifit is “impossible 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 of the full
purposes and objectives of [federal law].” English v.
General Elec. Co., 496 U.S. 72, 79 (1990) (citations omit-
ted). Petitioners’ tort claims are preempted under that
analysis. Holding respondent liable for not installing
airbags in petitioners’ car would frustrate Standard
208’s policy of encouraging a variety of passive restraints.

1. Contrary to petitioners’ contention (Br. 2541), the
Safety Act’s savings clause, 15 U.S.C. 1397(k), does not
foreclose implied preemption analysis.

a. As an initial matter, any suggestion (see Pet. Br. 37-
38) that the presence of a savings clause automatically
precludes implied preemption analysis is incorrect. Sav-
ings clauses vary significantly in both phraseology and
context, and, as with any other statutory provision, a
court must ascertain the meaning of the specific clause.
Cf. Freightliner, 514 U.S. at 239." Thus, this Court

® Petitioners’ reliance (Br. 38) on Malone v. White Motor Corp.,
435 U.S. 497 (1978), and California Savings & Loan Ass’n v. Guerra,
479 U.S. 272 (1987), is unpersuasive. In Malone, the issue was
essentially field preemption, and the Court held that two savings
provisions (more broadly worded than the one at issue here)
indicated that the federal labor statutes did not foreclose all state
regulation of pension plans. 435 U.S. at 504-505. In Guerra, the
plurality examined the savings provisions in the Civil Rights Act of
1964 and found that “Congress has indicated that state laws will be
pre-empted only ifthey actually conflict with federal law” (479 U.S.
at 281); see also id. at 295-296 (Scalia, J., concurring).

— A-88 —

frequently conducts implied preemption analysis even

- though a statute contains a savings clause. Indeed, the
Court hesitates to read a savings clause to authorize
claims that conflict with federal law. See, e.g., American
Telephone & Telegraph Co. (AT&’T) v. Central Office
Telephone, 524 U.S. 214, 227-228 (1998); International
Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987); Chicago
& N.W. Trans. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,
828 (1981); Texas & Pac. Ry. Abilene Cotton Oil Co., 204
U.S. 426, 446 (1907).

There is good reason for that approach. Conflict pre-
emption arises directly from the operation of the Su-
premacy Clause (U.S. Const. Art. VI, Cl. 2), rather than
from a specific intent to displace state law. Thus, “[a]
holding of federal exclusion of state law is inescapable
and requires no inquiry into congressional design where
compliance with both federal and state regulations is a
physical impossibility.” Florida Lime & Avocado Grow-
ers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963). Similarly,
a state law that “stands as an obstacle to the accomplish-
ment 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 intent
to supersede state law-making authority. See Jones v.
Rath Packing Co., 430 U.S. 519, 540-543 (1977). Those
implied preemption principles are equally applicable to
conflicts between state laws and federal regulations.
Whether or not Congress has addressed preemption,
“(t]he statutorily authorized regulations of an agency
will pre-empt any state or local law that conflicts with
such regulations or frustrates the purposes thereof.”
City of New York v. FCC, 486 U.S. 57, 64 (1988).

Because Congress enacts laws against the background
of the Supremacy Clause, a court should assume that

Ee rere rir ener

— A-89 —

Congress believes that federal law (whether enacted
directly by Congress or promulgated by a federal agency
pursuant to statutory authorization) will prevail in any
collision with state law. Of course, Congress is free to
change the general rule and to allow state laws to oper-
ate in the place of conflicting federal law. But absent a
“solid basis” for believing that Congress “intended fun-
damentally to alter traditional preemption analysis,”
John Hancock Mut. Life Ins. Co. . Harris Trust & Sav.
Bank, 510 U.S.. 86, 99 (1993), a statute should not be
interpreted to permit state laws to operate in conflict
with federal law."

The presumption that Congress does not intend to
alter traditional principles of conflict preemption is par-
ticularly appropriate when Congress enacts a statute
such as the Safety Act that takes effect through admin-
istrative action. Congress did not itself prescribe motor
vehicle safety standards in the Safety Act. Instead, it
delegated their promulgation (and revision in light of
experience) to the Secretary of Transportation. Thus,
Congress could not know what federal standards would
be promulgated, and it could not predict whether or how
States might adopt conflicting measures.

b. The Act’s savings clause, Section 1397(k), provides
no sound basis to conclude that Congress intended to
alter the general rule that federal law preempts conflict-
ing state law. Nothing in the text of the clause suggests
that common law liability is saved from preemption even
if it conflicts with a federal safety standard. Indeed, the
language of the clause does not directly address preemp-
tion at all. It states that “[clompliance with any Federal
motor vehicle safety standard issued under [the Safety
Act] does not exempt any person from any liability under

— A-90 —

common law.” 15 U.S.C. (1397(k).*As we have explained,
the clause thus preserves common law liability in the
sense that a manufacturer cannot invoke its compliance
with federal law as an automatic defense against a claim
that acar was defectively designed. See p. 14, supra. The
clause does not, however, preserve common law liability
that conflicts with federal law.

The legislative history supports that interpretation.
The provision originated in the House of Representatives,
and the House Report expressly states that the clause
“establishes[] that compliance with safety standards is
not to be a defense or otherwise to affect the rights of
parties under common law.” See H.R. Rep. No. 1776,
supra, at 24 (emphasis added). Other references in the
legislative history are consistent with the understand-
ing that Section 1397(k) negates a substantive defense
to liability and does not directly address preemption.

‘4 The recodification substituted the modifier “a” for “any,” note
3, supra, , without intending substantive change, note 1, supra. The
fact that Congress perceived no distinction between the use of the
words “a” and “any” refutes the suggestion (see Pet. Br. 25) that the
use of “any”, was intended to signal a broad construction of the
clause.

5 See,e.g., S. Rep. No. 1301, supra, at 12 (explaining that federal
standards “need not be interpreted as restricting State common law
standards ofcare” so that compliance with federal standards “would
thus not necessarily shield any person from product liability at
common law”) (emphasis added); 112 Cong. Rec. 14,230(1966) (Sen.
Magnuson) (also using qualifier “not necessarily”); id. at 21,487
(Sen. Magnuson) (stating that Senate conferees adopted the House
provision, which “makes explicit, in the bill, a principle developed
in the Senate report”); ibid. (explaining that the provision does not
prevent use of compliance or noncompliance as “evidence”); id. at
21,490(Sen. Cotton) (“proof ofcompliance” may be offered “for such
relevance and weight as courts and juries may give it”). Petitioners

(Footnote 15 continued on next page)

— A-91 —

Petitioners have not identified, and we have not found,
any statement in the legislative history that describes
Section 1397(k) as preserving from preemption common
law claims that conflict with federal law.*®

That interpretation of Section 1397(k)is reinforced by
the fact that Congress did not include the savings clause
in the Section of the Safety Act that addresses preemp-
tion (Section 103(d) (codified at 15 U.S.C. 1392(d))) but
inserted it five sections later (Section 108(c) (codified at

(Footnote 15 continued)

also rely (Br. 29) on the comments of a witness at House hearings
who expressed the concern that manufacturers would respond to
lawsuits with a claim that “Our product meets Government stan-
dards.” Comments by members of the public reveal little about
congressional intent. In any event, the witness’s concern was
precisely that manufacturers would use compliance with federal
standards as a substantive defense to liability.

‘® As noted in the text, the House Report states that “compliance
with federal standards is not to be a defense or otherwise to affect
the rights of parties under common law.” H.R. Rep. No. 1776, supra,
at 24 (emphasis added). The context suggests that the italicized
language refers to substantive changes to common law rules rather
than the possibility of preemption. Petitioners also note (Br. 29)
that Senator Magnuson stated that “[t]he common law on product
liability still remains as it was.” That statement too is properly
understood as explaining that the Act made no change to the
substance of product liability law. Finally, petitioners rely (Br. 30-
31) on a statement by Representative Dingell that “we have
preserved every single common-law remedy that exists against a
manufacturer for the benefit of a motor vehicle purchaser.” 112
Cong. Rec, at 19,663. Mr. Dingell made that statement to explain
why he opposed an amendment that would have criminalized
willful violations of federal standards. Thus, the statement indi-
cates only that common law actions based on the violation of federal
standards are preserved; it does not indicate that actions that would
conflict with federal standards are similarly preserved. See Wood,
865 F.2d at 407 n14.

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— A-92 —

15 U.S.C. 1397(k))). Thus, the structure of the Act con-
firms that the savings clause was not intended directly to
address preemption.”

Our interpretation does not render the savings clause
meaningless, as petitioners contend (Br. 26-27). Peti-
tioners’ argument would have force only if the pre-
emption clause applied tocommon law claims, a reading
that we reject. See ibid.; pp. 11-15, supra. Instead, our
interpretation preserves an important role for Section
1397(k): In cases in which tort liability does not conflict
with a federal standard, Section 1397(k) makes clear
that compliance with the standard does not immunize a
manufacturer from liability. Those cases can arise fre-
quently, since state tort law does not conflict with a
federal “minimum standard” (15 U.S.C. 1391(2)) merely
because state law imposes a more stringent require-
ment.'*For example, Federal Motor Vehicle Safety Stan-
dard 105, 49 C.F.R. 571.105, which establishes re-

‘’ The recodification included both provisions in 49 U.S.C. 30103
(entitled “Relationship to other laws”) but in separate sub-sections,
one entitled “Preemption” (49 U.S.C. 30103(b)) and the other
entitled “Common law liability” (49 U.S.C. 30103(e)).

‘8 We therefore agree with petitioners (Br. 46-47) that their
claims are not preempted merely because the Secretary made
airbags one of several design options that manufacturers could
choose. We disagree, however, with the contention (Br. 44, 46) that
the Secretary provided options because she had no statutory
authorization to do otherwise. The Secretary could have imposed
performance requirements that effectively required an airbag
design. See Wood, 865 F.2d at 416-417, 112 Cong. Rec. at 21,487
(Sen. Magnuson) (performance standards expected to affect de-
sign). As we expiain at pages 23-26, infra, the Secretary chose not
to do so in order to encourage the provision of a variety of passive
restraints, because she determined that would best promote safety.
Petitioners’ claims are preempted because they would frustrate
that policy judgment.

— A-93 —

quirements for brake performance, does not require
anti-lock brakes in addition to airbrakes in all vehicles,
but the Secretary has not determined that requiring
anti-lock brakes would disserve safety. Section 1397(k)
makes clear that compliance with Standard 105 is nota
defense to a common law tort claim that a vehicle is
defectively designed because it lacks anti-lock brakes.
Federal Motor Vehicle Safety Standard 125, 49 C.F.R.
571.125, provides multiple options for the design of
reflective devices to warn approaching traffic of the
presence of a stopped vehicle, but the Secretary did not
determine that the availability of options was necessary
to promote safety. Section 1397(k) makes clear that
compliance with Standard 125 is not a defense to a
common law tort claim that the reflective device is de-
fectively designed unless it uses one rather than another
of those options. Thus, under ourreading, Section 1397(k)
has a sensible and important role.’®

C. It is petitioners’ reading of the clause as preserving
tort claims even if they conflict with federal safety stan-
dards that would have anomalous results. The Safety
Act’s purpose “is to reduce traffic accidents and deaths
and injuries to persons resulting from traffic accidents,”
15 U.S.C. 1381, and Congress chose to carry out that
purpose by empowering the Secretary to issue safety
standards, 15 U.S.C. 1392, 1397. In someinstances, such
as the present case, holding a manufacturer liable for

'? Petitioners contend (Br. 27 n.11) that there was no need for
Congress to specify that compliance with federal standards is not a
defense to common law liability because every State already
provided that compliance with a federal regulation is not a defense
to a design defect claim. But even if Congress understood that to be
the common law rule, it could not be certain that rule would not
change. It therefore had ample reason to assure that the Safety Act
would not be construed to create a new, automatic federal defense.

aS

what a jury might find to be a design defect would
significantly impair the Secretary’s efforts to promote
safety. Reading the savings clause to preserve that
liability from preemption would impermissibly allow
courts to second-guess the Secretary’s judgment on mat-
ters “entrusted to [his] informed discretion” (Kalo Brick
& Tile Co., 450 U.S. at 330) and lead the Act “to destroy
itself” (AT&T, 524 U.S. at 228).

For example, the Secretary has established wind-
shield retention requirements in Federal Motor Vehicle
Safety Standard 212, 49 C.F.R. 571.212, in order to
prevent occupants from being thrown from their cars in
crashes. If manufacturers could be held liable under
state tort law on a theory that it is a design defect for
windshields in those vehicles to be retained in a crash
because passengers could be injured if they struck the
windshields, it would be impossible for manufacturers to
comply with both the federal standard and the duties
imposed by state tort law. Thus, if the tort claims were
not preempted, the Secretary would have to rescind the
federal standard, or manufacturers would have to con-
tinue to produce windshields that do not eject in order to
comply with Standard 212, while paying tort judgments
based on the theory that the federally mandated failure
of the windshields to release in a crash rendered their
cars defectively designed. There is no indication that
Congress intended that startling result.

2.a. This case does not pose that type of conflict, but it
poses a closely related one. In issuing the version of
Standard 208 in effect when petitioners’ car was manu-
factured, the Secretary rejected a rule requiring airbags
in all cars in favor of a rule encouraging manufacturers
to offer a variety of passive restraints. The Secretary
determined — based on the history of consumer (and

i

— A-95 —

congressional) responses to passive restraint require-
ments — that diversity would best promote safety by
helping to ensure public acceptance of passive protection
systems,” encouraging the development of new and
improved technologies,” and enabling the agency to
acquire more data to make regulatory decisions. See 49
Fed. Reg. at 28,987-28,997, 29,000-29,001. The Secre-
tary also determined that the high replacement costs of

2 In 1972, the Secretary adopted a rule requiring an interlock
mechanism preventing engine ignition unless manual seatbelts
were fastened. That rule provoked a strong public reaction, prompt-
ing Congress to ban the interlock requirement and impose proce-
dural limitations on the agency’s future efforts to require restraints
other than seatbelts. Motor Vehicle and School Bus Safety Amend-
ments of 1974, Pub. L. No. 93-492, § 109, 88 Stat. 1482 (codified at
15 U.S.C. 1401(b)(1988)). Given the public’s adverse reaction to the
interlock system, one factor the Secretary properly considered was
the public’s willingness to accept various passive restraint tech-
nologies. 49 Fed. Reg. at 28,987. See Pacific Legal Found. v. DOT,
598 F.2d 1338, 1345-1346 (D.C. Cir.), cert. denied, 444 U.S. 830
(1979). “Airbags engendered the largest quantity of, and most
vociferously worded, comments” during the rulemaking. 49 Fed.
Reg. at 29,001. Commenters expressed concerns that the chemical
used to inflate airbags would be hazardous, that airbags would
deploy inadvertently and thereby cause injury, and that airbags
would not deploy during an accident. Jbid. Given those widespread
concerns, the Secretary concluded that “[iJf airbags were required
in all cars, these fears, albeit unfounded, could lead to a backlash
affecting the acceptability of airbags. This could lead to their being
disarmed, or, perhaps, to a repeat of the interlock reaction.” Jbid.

2! The Secretary determined that experience could show that
automatic seatbelts would be used more frequently than antici-
pated, and that manufacturers might develop better and more
acceptable automatic seatbelt systems. That development could
result in automatic seatbelts that were as effective as airbags but
cost less. The Secretary also concluded that requiring airbags in all
cars would unnecessarily stifle further innovation in occupant
protection systems. 49 Fed. Reg. at 29,001.

— A-96 —

airbags could cause some consumers to decline to replace
them after they were deployed, which would leave occu-
pants without passive protection. Id. at 29,000-29,001.
At the same time, the Secretary took steps that she
reasonably determined would prompt manufacturers to
install airbags in some of their cars. See p. 5 & n.5, supra.
Standard 208 thus embodies the Secretary’s policy judg-
ment that safety would best be promoted if manufactur-
ers installed alternative protection systems in their fleets
rather than one particular system in every car.

That policy of affirmatively encouraging diversity
would be frustrated if manufacturers could be held liable
for not installing airbags. If, when the Secretary promul-
gated the rule in 1984, respondent and other manufac-
turers had known that they could later be held liable for
failure toinstall airbags, the prospect of sizable compen-
satory and punitive damage awards, combined with the
“centralized, mass production, high volume character of
the motor vehicle manufacturing industry in the United
States,”S. Rep. No. 1301, supra, at 12, would likely have
led them to install airbags in all cars. That outcome
would have eliminated the diversity that the Secretary
found necessary at that time to promote motor vehicle
safety. At the very least, holding manufacturers liable
for not installing airbags would have “interfere[d] with
the methods by which [Standard 208] was designed to
reach [its] goal.” Ouellette, 479 U.S. at 494.” Therefore,

2 Petitioners mistakenly argue (Br. 16, 44) that their tort claims
would not interfere with the Secretary's chosen methods because,
they assert (Br. 2, 10-11), the Secretary intended tort liability to
provide an incentive for manufacturers to install airbags. In
support of that assertion, petitioners cite the Secretary's statement
that “potential liability for any deficient systems” would discourage
manufacturers from “us[ing] the cheapest system to comply with an

(Footnote 22 continued on next page)

— A-97 —

tort claims like petitioners’, which are based on the
theory that a car (subject to the version of Standard 208
in effect in 1987) was defectively designed because it
lacked an airbag, “stand[] as an obstacle to the accom-
plishment and execution of the full purposes and objec-
tives of [Standard 208].” Hines v. Davidowitz, 312 U.S. 52
,67(1941).

For those reasons, the Secretary has long taken the
view that Standard 208 preempts such claims.” See U.S.
Amicus Br. at 29-29, Freightliner v. Myrick, supra; U.S.
Amicus Br. at 11-15, Wood . General Motors Corp.,
supra. That view is consistent with this Court’s decisions
holding that when Congress or an agency determines
that certain activity must be permitted in order to fur-
ther the purposes of federal law, state law that would
forbid that behavior is preempted. See, e.g., Barnett
Bank v. Nelson, 517 U.S. 25, 31(1996); Fidelity Fed. Sav.

(Footnote 22 continued)

automatic restraint requirement.” 49 Fed. Reg. at 29,000. Petition-
ers misunderstand the Secretary’s statement, which meant that
manufacturers could face tort liability if they installed deflective
passive restraints. The Secretary did not mean that manufacturers
could be held liable for choosing one type of passive restraint rather
than another. Petitioners’ amici (Missouri Br. 6; Ass’n of Trial
Lawyers Br. 29) mistakenly rely on a public comment that the
Secretary summarized in the description of comments in the
preamble. 49 Fed. Reg. at 28,972. An agency does not endorse a
comment merely by describing it.

3 Not all tort claims involving airbags would be preempted. A
claim that a manufacturer installed an airbag that deployed
improperly would not be preempted because it would not frustrate
the purposes of Standard 208. Even a claim that a manufacturer
should have chosen to install airbags rather than another type of
passive restraint in a certain model of car because of other design
features particular to that car (see Nat’ Conf. of State Leg. Br. 12)
would not necessarily frustrate Standard 208’s purposes.

i tt—

& Loan Ass’n v. De la Cuesta, 458 U.S. 141, 154-155
(1982); Kalo Brick & Tile Co., 450 U.S. at 326.

The Secretary’s view is entitled to substantial weight.
“Because the [Department of Transportation] is the fed-
eral agency to which Congress has delegated its author-
ity to implement the [Safety] Act, the [Secretary] is
uniquely qualified to determine whether a particular
form of state law ‘stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
Congress” Medtronic, 518 U.S. at 496; id. at 506 (Breyer,
J., concurring) (administering agency has “special un-
derstanding of the likely impact of both state and federal
requirements, as well as an understanding of whether
(or the extent to which) state requirements may inter-
fere with federal objectives”).

4 Petitioners and their amici contend (Pet. Br. 40-41, 49-50; Natl
Conf. of State Leg. Br. 24-25; Leflar Br. 21-22) that there can be no
implied conflict preemption here because, when the Secretary
adopted Standard 208, she neither plainly stated her intent to
preempt tort liability nor provided notice and comment on the
question. That contention rests on a misunderstanding of the basis
for conflict preemption. Unlike field preemption, which arises
when agencies intend for their regulations to be exclusive.”
Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707,
718 (1985), conflict preemption arises not from a specific intent to
preempt but from the direct operation of the Supremacy Clause,
which mandates that state law yield to federal law when they
conflict. See p. 17, supra. Here, because conflict preemption is at is-
sue, neither a statement of preemptive intent nor notice and com-
ment on preemption was required. For the same reasons, the ar-
gument that the Secretary lacks authority to give any particular
federal standard preemptive force (Nat’] Conf. of State Leg. Br. 24)
is wide of the mark. We do not contend that petitioners’ claims in
this case are preempted because the Secretary decided that Stan-
dard 208 should preempt common law liability. We contend that the
claims are preempted because they conflict with, and would frus-
trate implementation of, the policy judgment embodied in the Stan-
dard that a choice of passive restraints would best promote safety.

— A-99 —

b. Petitioners mistakenly contend (Br. 16, 47-48) that
their claims do not conflict with the Secretary’s goai of
allowing consumers to adjust to new airbag technology
because tort liability would not lead manufacturers to
change their conduct. To the contrary, “[t]he obligation
to pay compensation can be, indeed is designed to be, a
potent method of governing conduct.” Garmon, 359 U.S.
at 247. Indeed, petitioners’ amici acknowledge that tort
law “has a deterrence function.” Nat'l Conf. of State Leg.
Br. 14; see Ass’n of Trial Lawyers Br. 10-12; Leflar Br.
12-13, 17; Missouri Br. 6, 13.%

Petitioners also argue (Br. 16, 47-48) that, if manu-
facturers had changed their conduct and installed
airbags, they would have promoted public acceptance of
those devices. That may be true, but the Secretary
reasonably determined at that time that experience
with a variety of passive restraints would best promote
public acceptance. In any event, speculation of the sort
advanced by petitioners cannot displace the Secretary’s
reasonable conclusion that claims such as petitioners’
would thwart the purposes behind Standard 208.”

5 That tort law also has other purposes (such as compensation)
does not mean tort rules cannot conflict with federal law (Nat'l
Conf. of State Leg. Br. 14-15; Leflar Br. 17-19). Conflict preemption
flows from the effects of the state law, not its purposes. See Gade
v. Nationa! Solid Waste Mgmt. Ass‘n, 505 U.S. 88, 105-106 (1992).

6 Petitioners suggest (Br. 16, 44) that a tort rule requiring
airbags is consistent with Standard 208 because the Secretary
determined that airbags were technologically the most effective
passive restraint and provided an incentive to encourage manu-
facturers to install them (see note 5, supra). That contention
overlooks the Secretary’s conclusion that airbags would not be
effective in practice if they were installed in all cars because of the
likely public reaction and potential safety dangers in small cars. It
also overlooks the Secretary’s determination that further research

(Footnote 26 continued on next page)

— A-100 —

Petitioners further err in contending (Br. 48-49) that
their claims do not conflict with the goal of encouraging
innovation and development of more effective restraint
systems. Contrary to petitioners’ suggestion, the ques-
tion is not whether tort liability in general stifles innova-
tion but whether liability for failure to install airbags
would have done so. The Secretary determined that it
would, because of the potential for large damage awards
and the “centralized, mass production, high volume
character of the motor vehicle manufacturing industry
in the United States,”S. Rep. No. 1301, supra, at 12. This
Court should decline petitioners’ invitation to second-
guess that reasonable determination.

Finally, petitioners argue (Br. 44-45) that theirclaims
do not conflict with Standard 208 because their car was
manufactured during the phase-in period (when Stan-
dard 208 required the installation of some type of passive
restraint system in some, but not all, cars) and their car
did not have any passive restraint. Those facts do not,
however, alter the preemption analysis, because peti-
tioners do not claim that their car was defectively de-
signed because it lacked any type of passive restraint.
Rather, they claim that the car was defectively designed
because it lacked one particular type of passive restraint
— an airbag. See Pet. i; Pet. Br. i. Thus, petitioners
cannot prevail without a ruling that a car manufactured
in 1987 was defectively designed unless it had an airbag.
For the reasons we have described, that ruling would
conflict with the Secretary’s determination that no par-

(Footnote 26 continued)

and development could lead to more cost-affective restraints. And
it overlooks the Secretary’s reason for providing the incentive to
install airbags — to ensure a variety of passive restraints, not to
maximize the number of cars with airbags.

— A-101 —

ticular type of passive restraint should be required in
any car because the use of a variety of passive restraints
would best promote safety.”’

27 This Court therefore need not decide whether Standard 208
would preempt a claim that a car manufactured during the phase-
in is defective if it lacks any passive restraint. The Secretary
believes that it would preempt such a claim, because the claim
would frustrate the safety purposes for which the Secretary
adopted the phase-in. See note. 6, supra. A tortrule that effectively
required passive restraints in all cars during the phase-in would
likely have resulted in the nearly exclusive use of automatic
seatbelts rather than airbags and impeded the development of data
about the benefits of passive restraints that could help prevent a
public backlash against them. See 49 Fed. Reg. at 28,999-29,000.
Contrary to petitioners’ contention (Br. 45), the fact that the claim
involved a car manufactured in 1987 or a crash that occurred after
the phase-in would not save the claim from preemption. The
relevant question is not what manufacturers would do after the
jury verdict in question but what they would have done when the
relevant version of Standard 208 was promulgated if they had
anticipated that they could later be held liable.

— A-102 —

CONCLUSION
The judgment of the court of appeals should be af-
firmed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
Counsel of Record
Nancy E. McFaDDEN Davip W. OGDEN
General Counsel Acting Assistant Attorney
Pau. M. GEIER General
Assistant General LAWRENCE G. WALLACE
Counsel for Deputy Solicitor General
Litigation Martruew D. RoBerts
FRANK SEALES, JR. Assistant to the Solicitor
Chief Counsel General
National Highway — Doycias N. LETTER
Traffic Safety KATHLEEN Moriarty MUELLER
Administration Attorneys
Department of
Transportation

NOVEMBER 1999

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1493%3A1. Public record. Not legal advice.