Petition for Writ of Certiorari — Schiffner v. Motorola, Inc.

Sapreme Cvet, us |

FILED

981094 jane-199

OFFICE OF TH

No. E CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

FRANK J. SCHIFFNER,

Petitioner,

Vv.

MOTOROLA, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois, First District

PETITION FOR A WRIT OF CERTIORARI

BEN BARNOW ARON D. ROBINSON

Counsel of Record THE LAW OFFICES OF

ALAN M. GOLDBERG ARON D. ROBINSON

GINA R. RAITH 105 West Madison Street

BARNOW AND GOLDBERG, P.C. Suite 2200

105 West Madison Street Chicago, Illinois 60602

Suite 2200 (312) 857-9050

Chicago, Illinois 60602

(312) 621-2000

Counsel for Petitioner

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

i

Petitioner’s valid causes of action setting forth com-

pensatory damages were dismissed as preempted by a

ruling that could not occur if this Court’s preemption

rulings were followed. The Illinois Courts should not be

allowed to disregard the rulings of this Court on pre-

emption, thus denying all who would rely upon the IIli-

nois Courts the benefit of those rulings, contrary to

that which is available in other states and jurisdictions.

QUESTIONS PRESENTED

Whether the Illinois Courts erred in holding, in con-

flict with this Court, other courts of appeal and other

state courts construing identical preemptive language,

that the statutory language of the Electronic Products

Radiation Control Act, 21 U.S.C. § 360kk et seq. pre-

empts Petitioner’s state law causes of action?

Does the mere existence of a general empowerment

clause in the Electronic Products Radiation Control Act,

21 U.S.C. § 360kk et seg. negate the Act’s preemption

clause which preserves non-conflicting state laws?

Are there different preemption rules depending on

whether the compensable injury is personal injury or

economic injury?

li

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ............cccece i

TABLAS OF CORNTTED 66 een cdeae terete ii

TABLE OF AUTHORITIES .......ccccccccccs iv

OPENING DEAFT 6 ss 0 eed obese eee 1

JURIGEIEC LIEN 6 6 eva bnew es ve eee eee 1

STATUTES LevGarVie? «ss kh ae beeeebee ea 2

STATEMENT OF THE CASE .....-cccvccccces 2

REASONS FOR GRANTING THE WRIT........ 6

I.

THIS COURT HAS REVIEWED IDENTICAL

PREEMPTION LANGUAGE IN OTHER FED-

ERAL STATUTES AND HELD THAT STATE

CLAIMS WERE NOT PREEMPTED ........ 6

II.

ANALYSIS OF THE PREEMPTION LAN-

GUAGE OF THE EPRCA REVEALS NO

CONGRESSIONAL INTENT TO PREEMPT

STATE LAWS WHICH DO NOT CONFLICT

WITH A FEDERAL STANDARD ........... g

A. FEDERAL REGULATION OF PRODUCTS

EMITTING RADIATION IS NOT EXCLU-

GIVE ccevensen se eee eee 10

ill

B. FEDERAL STATUTES WITH SIMILAR

LANGUAGE AND MEANING HAVE

BEEN CONSTRUED AGAINST PREEMP-

TION OF STATE LAW CLAIMS ....... 11

C. THERE IS NO IMPLIED PREEMPTION

OF THESE CAUSES OF ACTION ...... 13

1, The Appellate Court Erred by Imply-

ing Preemption From the General

Purpose of the Act.............. 13

2. The Lack of Federal Regulation Does

Not Imply An Affirmative Decision

That No Regulation is Necessary or

ee 15

III.

THE SAVINGS CLAUSE PRESERVES PETI-

ee ES re 16

a 17

ek, infra

iv

TABLE OF AUTHORITIES

Cases PAGE(S)

Baltimore and Ohio Railroad v. Oberly,

832 F.2d 108 (3rd Cir. 1988) ............. 11

Brewer v. General Motors, 926 S.W. 2d

Fe Ce SY OE dive Oe 60 ee hee Cees 8

Chicago Northwestern Transportation Co.

v. Kalo Brick and Tile Co., 450 U.S. 311,

oe RG 8 ee ee 9

Cippolone v. Liggett Group, Inc.,

505 U.S. 504, 112 S.Ct. 2608 (1992)........ 11

Connick v. Suzuki Motor Company,

Cre ee ee RE a 6 oi owe us a esc eteus 4

Department of Revenue of Oregon v. ACF

Industries, Inc., 510 U.S. 332, 114 S.Ct.

a ns hee ee ee es 9

Freightliner v. Myrick, 514 U.S. 280,

535 Bi. Be Cen vss bec ee nnen 6, 7, 8, 15

Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246, 114 S.Ct. 2239 (1994) ......... Y

Henry Ford Motor Company Brenco II

Products Liability Litigation, 909

F.Supp. 400 (E.D. La. 1985) .............. 8

Hillsborough County, Florida v. Automated

Medical Labs., Inc., 471 U.S. 707, 105

CE Bre Ce oe hae ces ee ee wee ee 15

v

Medtronic Inc. v. Lohr, 518 U.S. 470,

116 S.Ct. 2240 (1996) .............. 5, 12, 13

Nat'l Kerosene Heater Association v.

Massachusetts, 653 F.Supp. 1079

a ee I Ce oa ee an 16

New York Conference of Blue Cross and

Blue Shield Plans v. Travelers

Insurance Co., 514 U.S. 645, 115

DAP SU a0 a bide vb een cheeks 9,14

Orman v. Charles Schwab and Co.,

A7@ Bie. Be BOR (1GOT) 2. wc cc cc ccee 16

Perona v. Volkswagen of America, Inc.,

292 Ill. App. 3d 59 (1997) ................ 4

Richards v. Michelin Tire Corp.,

786 F. Supp. 959 (S.D. Al. 1992) .......... 16

Shaw v. Delta Air Lines, 463 U.S. 85,

103 S.Ct. 2890 (1983) .................. 11

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 104 S.Ct. 615 (1984) ......... a)

Tebbetts v. Ford Motor Company,

140 N.H. 203, 665 A.2d 345 (N.H. 1995),

cert. denied, 516 U.S. 107?, 116 S.Ct.

CoE GED 6:08 boa rss bee ee 8

Verb v. Motorola, Inc., 284 Ill. App. 3d

Gam (006 BE.. Bee va a oe eee 14

vi

Wilson v. Bradlees of New England, Inc.,

96 F.3d 552, cert. denied, 117 S.Ct. 1083

BO OP eT Se TEE eT CP EET CT eee 8

Wilson v. Pleasant Cong., 660 N.E. 2d 327

| PET ETC CET E TT Coe eee ee 8

Statutes

PS CEE Gh de nee cen ee see Veen eae 8

Be Si TR 6 no 0.54 4 4a Oe kanes 12

ae We SE as sb hoe e hae de heehee 1, 2, 4, 16

A Vanes. SUC e n'e een hewenceen nee 2, 16

BA Sn SE hoc oon ee eee eee 2, 4, 9, 10

aR | re 2

ee eee eee eee rs yee 8

RR ee) Pr ear er ee i 13, 14

OD Tis SE. ss on kde ee ee 8

1

PETITION FOR WRIT OF CERTIORARI

Petitioner, Frank J. Schiffner, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the Illinois Appellate Court for the First

District, Sixth Division entered in this cause on June

30, 1998.

OPINIONS BELOW

The opinion of the Appellate Court of Illinois, First

District, Sixth Division is reported at 297 Ill. App. 3d

1099 (1st Dist. 1998). It is reprinted at page 1 of the

Appendix (“App.”).

The order of the Illinois Supreme Court denying the

Petition for Leave to Appeal has not been reported. It

is reprinted at App. at 18.

JURISDICTION

Petitioner filed his Fourth Amended Class Action

Complaint (“Complaint”) in Illinois state court raising

various state law causes of action. On June 16, 1997,

the Circuit Court of Cook County dismissed the case

because, in that Court’s opinion, the causes of action

were preempted by the Electronic Products Radiation

Control Act, 21 U.S.C. §360kk et seg. (“EPRCA”) and

the pleading failed to allege compensable damages.

On Petitioner’s appeal, the Appellate Court, on June

30, 1998, found that the Complaint did state a claim for

compensable damages under Illinois law. The Appellate

Court, however, held that the causes of action were

preempted by the EPRCA.

2

Petitioner filed a petition for leave to appeal to the

Illinois Supreme Court. On October 6, 1998, the Illinois

Supreme Court denied Petitioner’s petition.

The jurisdiction of this Court to review the judgment

of the Appellate Court of Illinois is invoked under 28

U.S.C. § 1257(a).

STATUTES INVOLVED

21 U.S.C. §360ss

Whenever any standard prescribed pursuant to

§360kk of this title with respect to an aspect of per-

formance of an electronic product is in effect, no state

. shall have any authority either to establish, or

continue in effect, any standard which is applicable to

the same aspect of performance of such product and

which is not identical to the federal standard... .

21 U.S.C. § 360pp(f)

The remedies provided by this part shall be in addi-

tion to and not in substitution for any other remedies

provided by law.

STATEMENT OF THE CASE

On June 16, 1997, the Circuit Court of Cook County

dismissed Petitioner’s Complaint finding that Petition-

er’s causes of action were preempted by the Electronic

Product Radiation Control Act (““EPRCA”), 21 U.S.C.

§360kk et seq. The trial court further found that Peti-

tioner failed to state a cause of action because he did

not allege suffering any compensable injury.

3

Petitioner timely filed a notice of appeal from the

ruling of the trial court. The Appellate Court, after

briefing and argument, issued an opinion on June 30,

1998. App. at 1. The Appellate Court held that Petition-

er did, in fact, allege compensable injuries in his Com-

plaint. However, the Appellate Court affirmed the trial

court’s finding that the claims, though validly stated,

were preempted by the EPRCA. On July 16, 1998,

Petitioner timely filed a petition for leave to appeal. On

October 6, 1998, the Illinois Supreme Court denied

Petitioner’s petition for leave to appeal. App. at 18.

Petitioner purchased a new cellular portable tele-

phone manufactured by Defendant. Petitioner became

concerned with various aspects of his purchase and, on

July 30, 1994, wrote to Defendant complaining of the

transaction and asking that Defendant respond to his

concerns. On March 24, 1997, Petitioner filed his Com-

plaint in this case. The Complaint alleges causes of

action sounding in consumer fraud, breach of the im-

plied warranty of merchantability and violation of the

Magnuson-Moss Warranty Act.

The bases for these causes of action were that Defen-

dant manufactured and sold portable cellular tele-

phones which were less than the bargained-for value in

that they were without adequate information about the

health risks, lacked information on the effects of elec-

tromagnetic frequencies (EMF) on human cells, without

guards to shield the user from EMF radiation, without

adequate instructions on how to use the phone (includ-

ing how to hold the phone so as to reduce exposure

from EMF radiation) and without adequate design so as

to increase the distance between the user’s head and

the antenna of the phone.

+

The triai court dismissed Petitioner's Complaint, find-

ing that it failed to allege compensable injuries. Addi-

tionally, the trial court held that Petitioner’s claims

were preempted by the EPRCA. App. at 2.

The Appellate Court disagreed with the trial court on

the issue of compensable damages. The Appellate Court

concluded that, in light of Illinois court opinions in Con-

nick v. Suzuki Motor Company, 174 Ill. 2d 482 (1996)

and Perona v. Volkswagen of America, Inc., 292 Ill.

App. 3d 59 (1997), Petitioner had properly pled dam-

ages for causes of action sounding in consumer fraud,

breach of warranty, and Magnuson-Moss. App. at 14.

However, the Appellate Court found that Petitioner’s

causes of action were preempted by federal law, specifi-

cally the EPRCA. App. at 14.

The Appellate Court discussed the standards applica-

ble when reviewing a federal preemption question and

noted that federal court decisions controlled over state

decisions. App. at 8. However, that Court noted that

there were no federal decisions construing the EPRCA.

App. at 8.

The preemption language of the EPRCA states in per-

tinent part:

Whenever any standard prescribed pursuant to

§360 kk of this title with respect to an aspect of

performance of an electronic product is in effect,

no state ... shall have any authority either to

establish, or continue in effect, any standard

which is applicable to the same aspect of per-

formance of such product and which is not iden-

tical to the federal standard... .

21 U.S.C. §360ss.

5

The Appellate Court noted that the EPRCA did not

expressly preempt Petitioner’s claims. App. at 9. Rath-

er, the Court found that preemption was appropriate

when there was regulation in such detail to leave no

room for state involvement. App. at 9.

Acknowledging that there were no standards for per-

formance set for the appliceble product under the

EPRCA, the Appellate Court relied upon the proposition

that Congress could have intended the agency to reg-

ulate and set pervasive national standards, App. at 10,

and that the exclusive power to do so was provided in

the general empowerment clause of the EPRCA.

The Appellate Court distinguished this Court’s recent

decision in Medtronic Inc. v. Lohr, 518 U.S. 470, 116

S.Ct. 2240 (1996), stating that the preemption analysis

is different since the plaintiff’s state law claims in Lohr

involved personal injuries. App. at 11.

Finally, the Appellate Court rejected Petitioner’s

reliance on the savings clause language in the EPRCA

relying instead, without justification, on the general

statement that a general savings clause is not conclu-

sive and does not rule out implied preemption. App. at

13-14.

6

REASONS FOR GRANTING THE WRIT

I.

THIS COURT HAS REVIEWED IDENTICAL PREEMP-

TION LANGUAGE IN OTHER FEDERAL STATUTES

AND HELD THAT STATE CLAIMS WERE NOT PRE-

EMPTED.

Petitioner asks this Court to review the judgment of

the Appellate Court because it conflicts with rulings of

this Court interpreting the preemptive reach of statu-

tory provisions in federal statutes. This Court, and

numerous other federal courts, have interpreted both

verbatim and similar statutory preemption language

from other federal statutes as not preempting state law

causes of action. Allowing the Appellate Court’s conflict-

ing ruling to stand will create a morass of inconsistent

rulings interpreting the same statutory language.

This Court refused to preempt state law causes of

action when it construed an identical preemption

clause. See Freightliner v. Myrick, 514 U.S. 280, 283,

115 S.Ct. 1483, 1485 (1995). In Myrick, the National

Traffic and Motor Vehicle Safety Act (“Safety Act”) pro-

vided:

Whenever a federal motor vehicle safety stan-

dard established under this subchapter is in

effect, no State .. . shall have any authority

either to establish, or to continue in effect, with

respect to any motor vehicle or item of motor

vehicle equipment any safety standard applica-

ble to the same aspect of performance of such

vehicle or item of equipment which is not identi-

cal to the federal standard.

Id. at 284, 115 S.Ct. at 1486. This language is essen-

tially verbatim to the language of the EPRCA. In

7

Myrick, the Supreme Court concluded that there was no

preemption and that the Safety Act’s preemption clause

applied only:

Whenever a federal motor vehicle safety stan-

dard .. . is in effect with respect to the same

aspect of performance regulated by a state

standard....

Id. at 286, 115 S.Ct. at 1487. The Court concluded that

because there was no current standard set under the

Safety Act:

There is simply no minimum, objective standard

stated at all. Therefore, states remain free to

! : gen

rm-

ance. (emphasis added)

Id.

Thus, this Court has construed identical language to

the preemption language at issue in this case and found

that where there is no standard in effect, there is no

preemption of a state law cause of action, and states

remain free to pass any standard in relation to perfor-

mance that they desire. It would be improper to con-

strue Congressional intent under one statute to be dif-

ferent than Congressional intent under another statute

when Congress chose to use the exact preemptive lan

guage in both statutes. Moreover, if Congress had in-

tended something other than that which this Court held

in Myrick, it could have amended both the EPRCA, and

the Safety Act, to clarify its intention.

The current Federal Motor Vehicle Safety Act

(“FMVSA”) preemption provisions are now contained at

8

49 U.S.C. §30103. These provisions are similar in lan-

guage, and identical in meaning, to the language con-

strued by the Supreme Court in Myrick. Numerous

federal and state courts have found that this language

does not preempt state law causes of action. See Henry

Ford Motor Company Bronco II Products Liability Liti-

gation, 909 F.Supp. 400 (E.D. La. 1995); Brewer v. Gen-

eral Motors, 926 S.W. 2d 774 (Tx.Ct. App. 1996); Teb-

betts v. Ford Motor Company, 140 N.H. 203, 665 A.2d

345 (N.H. 1995), cert. denied, 516 U.S. 1072, 116 S.Ct.

773 (1995); Wilson v. Pleasant Cong., 660 N.E.2d 327

(Ind. 1995).

While the Appellate Court ruling is inconsistent with

this Court’s ruling in Myrick, it also implicates the

construction of other federal statutes. Both the Flam-

mable Fabrics Act, 15 U.S.C. §1203, and the Manufac-

tured Home Construction and Safety Standards Act, 42

U.S.C. §5403(d), contain identical preemption clauses.

Cases interpreting those statutes have upheld state law

claims. See Wilson v. Bradlees of New England, Inc., 96

F.3d 552, cert. den., 117 S.Ct. 1083 (1996). Allowing a

ruling upholding the preemption of these causes of

action will lead to the obliteration of the rules this

Court has brought to preemption analysis. The Illinois

ruling is a ruling against the preemption rulings of this

Court with decisive and national impact. This Court

should grant certiorari to review this matter. Alterna-

tively, this Court should exercise its supervisory auth-

ority and reverse the rulings of the Illinois Courts.

9

Il.

ANALYSIS OF THE PREEMPTION LANGUAGE OF

THE EPRCA REVEALS NO CONGRESSIONAL INTENT

TO PREEMPT STATE LAWS WHICH DO NOT CON-

FLICT WITH A FEDERAL STANDARD.

In determining whether a federal statute preempts

state law causes of action, a court must attempt to

discern Congressional intent, and preemption is appro-

priate only if it is the clear and manifest purpose of

Congress. Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 252, 114 S.Ct. 2239 (1994); Department of Revenue

of Oregon v. ACF Industries, Inc., 510 U.S. 332, 345, 114

S.Ct. 843 (1994). There is a strong presumption against

preemption, particularly where a party is deprived of all

judicial remedies. Silkwood v. Kerr-McGee Corp., 464

U.S. 238, 104 S.Ct. 615 (1984). Preemption of state law

by federal statute or regulation is not favored and is

limited to situations where state law claims interfere

with or are contrary to federal law. Chicago Northwest-

ern Transportation Co. v. Kalo Brick and Tile Co., 450

U.S. 311, 317, 101 S.Ct. 1124, 1130 (1981). The intention

of Congress to preempt state law may be manifested by

express provision, implication, or by a conflict between

federal and state law. New York Conference of Blue

Cross and Blue Shield Plans v. Travelers Insurance Co.,

514 U.S. 645, 654, 115 S.Ct. 1671, 1676 (1995).

It is indisputable that the EPRCA does not expressly

preempt Petitioner’s claims here. App. at 9. See §360ss.

Further, as demonstrated herein, Petitioner’s causes of

action are not impliedly preempted, nor did Congress

intend to so exhaustively regulate the field that there is

no room left for state regulation. Finally, enforcement of

the state law claims will not conflict with the non-

existent regulatory scheme of the FDA.

10

A. FEDERAL REGULATION OF PRODUCTS EMIT-

TING RADIATION IS NOT EXCLUSIVE.

The preemption language of the EPRCA provides:

Whenever any standard prescribed pursuant to

§360kk of this title with respect to an aspect of

performance of an electronic product is in effect,

no state ... shall have any authority either to

establish, or continue in effect, any standard

which is applicable to the same aspect of per-

formance of such product and which is not iden-

tical to the federal standard... .

21 U.S.C. §360ss.

A plain and common sense reading of this statute

yields but one conclusion. A state may have a standard

in effect when there is no federal standard covering an

aspect of performance of an electronic product. Other-

wise, the language in the statute “or to continue in ef-

fect” would be meaningless and contrary to fundamen-

tal principles of statutory construction. If Congress had

intended to exhaustively regulate the field, prohibiting

any state regulation, then not only would the preemp-

tion statute simply prohibit any state regulation what-

soever, but it would also preclude a state from ever

passing any regulations.

The preemption clause clearly and expressly allows a

state to promulgate standards for electronic products,

even when a federal standard is in effect under the

statute, so long as the state standard is identical to the

federal standard. Thus, it is the clear intention of Con-

gress, expressed in the statute, to allow for state reg-

ulation. In fact, counsel for Motorola expressly conceded

to the Appellate Court, at oral argument, that a state

could pass a standard as long as the state standard was

——

11

identical to a federal standard in effect. As this Court

has repeatedly stated:

We must give effect to this plain language un-

less there is good reason to believe Congress

intended the language to have some more re-

strictive meaning.

Cippolone v. Liggett Group, Inc. 505 U.S. 504, 521, 112

S.Ct. 2608, 2620 (1992), quoting, Shaw v. Delta Air

Lines, 463 U.S. 85, 97, 103 S.Ct. 2890, 2900 (1983).

Even in light of the broad preemptive reach of the Ciga-

rette Labeling Act, the Court found that some state law

actions were not preempted. Jd. at 523-31.

In order to even trigger any of these preemptive

provisions, a federal regulation promulgated under the

statute must exist. It is undisputed that no federal

regulations have ever been passed covering any of the

products at issue here during the relevant periods for

Petitioner’s Complaint.

B. FEDERAL STATUTES WITH SIMILAR LANGUAGE

AND MEANING HAVE BEEN CONSTRUED

AGAINST PREEMPTION OF STATE LAW CLAIMS.

The United States Supreme Court and numerous

federal courts have construed federal statutory provi-

sions with identical or effectively identical language as

concerned here, and found that state law causes of

action were not preempted. The Illinois Court’s ruling

threatens those decisions.

For example, an Environmental Protection Agency

statute with similar language was held not to preempt

state law claims. Baltimore and Ohio Railroad v. Ober-

ly, 837 F.2d. 108 (3rd Cir. 1988). There, the statute

provided:

¥

|

|

:

i

\

:

12

[N]jo state ... may adopt or enforce any stan-

dard applicable to noise emissions resulting

from the operation of the same equipment or

facility . .. unless such standard is identical to

a standard applicable to noise emissions result-

ing from such operation prescribed by any reg-

ulation under this section.

Id. at 113-14.

Additionally, the statutory provisions in the same

Food Drug and Cosmetic Act which precede the EPRCA

are the Medical Device Amendments (“MDA”), which

this Court recently held did not preempt state statutory

and common law causes of action. Medtronic Inc. v.

Lohr, 518 U.S. 470, 116 S.Ct. 2240 (1996). The preemp-

tive language of the MDA provides:

No state .. . may establish or continue in effect

with respect to a device intended for human use

any requirement—(1) which is different from or

in addition to any requirement applicable under

this chapter to that device, and (2) which re-

lates to the safety or effectiveness of the device

or to any other matter included in a require-

ment applicable to the device under this chap-

ter.

21 U.S.C. §360k(a). There, as the Appellate Court found

here, defendants argued implied preemption of any

state law claim due to the general empowerment clause

of the statute. This Court disagreed. Without an ex-

press preemption provision, general preemption does

not arise as a result of mere enactment of a statute.

“Rather, in most cases, a state law will be preempted

only to the extent that the FDA has promulgated a

relevant federal ‘requirement’.” Jd. at 496, 116 S.Ct. at

2255. This Court concluded that the jurisdiction of the

13

FDA was not intended to preempt laws of general ap-

plication, including petitioner’s failure to warn claims,

manufacturing defect claims, labeling claims or negli-

gent design claims. Jd. at 500, 116 S.Ct. at 2257-58. See

also, 49 U.S.C. §30101 (empowerment clause of the Fed-

eral Motor Vehicle Safety Act).

While Lohr involved personal injuries, the determi-

nation of preemption is not framed by the kind of dam-

ages claimed by the petitioner, but by the scope and

reach of the statute. The petitioner in Lohr was entitled

to sue for breach of warranty and to receive damages

under a traditional contract analysis. If a breach of

contract claim is preserved in those cases, there is no

basis to find the properly pled claims preempted here

solely because no personal injuries are alleged.

C. THERE IS NO IMPLIED PREEMPTION OF THESE

CAUSES OF ACTION.

1. The Appellate Court Erred by Implying Pre-

emption From the General Purpose of the

Act.

In rejecting the savings clause which explicitly pre-

serves state and common law remedies, the Appellate

Court erroneously relied on the general purpose of the

EPRCA to imply preemption of Petitioner’s claims. App.

at 10, 12-13. While the Appellate Court’s analysis clear-

ly ignores the express intent of Congress, it fails for

additional reasons. By reading the general purpose and

empowerment clause of the EPRCA to the exclusion of

the preemption and savings clauses, the Appellate

Court ignored the instructions set forth by this Court:

[S]uch an expansive reading of the preemption

clause would “read Congress’s words of limita-

14

tion as a mere sham, and... read the presump-

tion against preemption out of the law whenever

Congress speaks to the matter with generality.”

New York State Conference of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655,

115 S.Ct. 1671, 1677 (1995).

The Appellate Court’s reliance on the decision in Verb

v. Motorola, Inc., 284 Ill. App. 3d 460, 469 (1st Dist.

1996), App. at 10, for the proposition that the FDA’s

power to regulate the subject matter covered in the

instant case is exclusive, ignores the plain language of

the statute. Nowhere in the empowerment clause,

§360kk, or anywhere else in the concerned statute, does

Congress state that the FDA has the exclusive power to

regulate these areas. In fact, were this the case there

would be no need for a preemption clause that preempt-

ed only state regulation which was different than a

“standard proscribed pursuant to... this title... .”

Again, reference to the FMVSA is instructive. As

noted above, the identical preemptive language did not

lead to preemption of state actions where there was no

federal standard in effect. In the FMVSA, the Purpose

and Policy clause provides that:

it is necessary—

(1) to prescribe motor vehicle safety

standards for motor vehicles and motor

vehicle equipment in interstate com-

merce; and

(2) to carry out needed safety research

and development.

49 U.S.C. §30101.

:

:

15

This empowerment is no different than the empower-

ment under the EPRCA. Since the Supreme Court and

the other federal and state courts have found no basis

for implied preemption under the FMVSA, it is im-

proper to import a different, more expansive, intent to

Congress in promulgating the EPRCA. See Myrick, 514

U.S. at 288-89, 115 S.Ct. at 1488.

2. The Lack of Federal Regulation Does Not

Imply An Affirmative Decision That No

Regulation is Necessary or Required.

While the Appellate Court did not expressly hold that

the FDA’s non-regulation or non-issuance of standards

constituted an affirmative decision that no standards

were necessary, App. at 10, it did discuss the issue and

Defendant below raised that argument in support of

preemption. This Court has repeatedly held that non-

regulation will not rise to the level of an affirmative

decision that no regulation is necessary or allowed, in

part:

[Bjecause agencies normally address problems

in a detailed manner and can speak through a

variety of means, including regulations, pream-

bles, interpretive statements, and responses to

comments, we can expect that they will make

their intentions clear if they intend for the reg-

ulations to be exclusive.

Hillsborough County, Florida v. Automated Medical

Labs., Inc., 471 U.S. 707, 718, 105 S.Ct. 2371 (1985).

This identical argument was rejected in Myrick. 514

U.S. at 286-87, 115 S.Ct. at 1487. In fact, in Myrick,

there was a federal regulation in effect, but it had been

vacated by a federal court decision. See also, Nat’l

16

Kerosene Heater Association v. Massachusetts, 653

F.Supp. 1079 (D. Mass. 1986) (Consumer Product Safe-

ty Act preemption is limited to safety standards which

are actually set.), and Richards v. Michelin Tire Corp.,

786 F. Supp. 959 (S.D. Al. 1992) (NHTSA decision not

to impose regulatory standards on mismatched tires

does not equal a decision to preempt state regulation.)

Similarly, that argument, if raised in opposition to this

Petition, must be rejected here.

III.

THE SAVINGS CLAUSE PRESERVES PETITIONER’S

CLAIMS.

The EPRCA, as with many federal statutes, contains

a savings clause. The clause provides that “[t]he rem-

edies provided for in this part shall be in addition to

and not in substitution for any other remedies provided

for by law.” 21 U.S.C. § 360pp (f). The Appellate Court

found that the savings clause was no help to Petitioner

because the general empowerment provisions, 21 U.S.C.

§ 360kk, authorized the FDA to regulate health and

safety matters. App. at 13. The Appellate Court relied

upon the Illinois Supreme Court decision in Orman v.

Charles Schwab and Co., 179 Ill. 2d 282, 293 (1997).

Orman is factually inapposite.’

Giving the savings clause its reasonable and natural

meaning, Petitioner’s claims are preserved as they do

not conflict with any federal standard.

' In fact, Orman stands only for the proposition that a savings

clause does not protect a state law that actually conflicts with

the federal regulatory scheme. Since there are no federal

standards in effect, this argument is circular at best.

17

CONCLUSION

For the reasons stated herein, Petitioner respectfully

requests that this Court grant his Petition for Certio-

rari to the decision of the Illinois Appellate Court.

Respectfully submitted,

BEN BARNOW ARON D. ROBINSON

Counsel of Record THE LAW OFFICES OF

ALAN M. GOLDBERG ARON D. ROBINSON

GINA R. RAITH 105 West Madison Street

BARNOW AND GOLDBERG, P.C. Suite 2200

105 West Madison Street Chicago, Illinois 60602

Suite 2200 (312) 857-9050

Chicago, Illinois 60602

(312) 621-2000

Counsel for Petitioner

APPENDIX

App. 1

FRANK J. SCHIFFNER, on Behalf of

Himself and All Other Persons Similarly

Situated, Plaintiff-Appellant, v.

MOTOROLA, INC., Defendant-Appellee.

No. 1-97-2456

APPELLATE COURT OF ILLINOIS,

FIRST DISTRICT, SIXTH DIVISION

297 Ill. App. 3d 1099; 697 N.E.2d 868;

1998 Ill. App. LEXIS 447; 232 Ill. Dec. 126;

CCH Prod. Liab. Rep. P15,319

June 30, 1998, Decided

SUBSEQUENT HISTORY: [**1] Released for Publica-

tion August 14, 1998.

PRIOR HISTORY: Appeal from the Circuit Court of

Cook County. No. 95 CH 01879. Honorable Stephen A.

Schiller, Judge Presiding.

DISPOSITION: Affirmed.

CORE TERMS: state law, preemption, phone, tele-

phone, cellular, consumer fraud, preempted, preempt,

radiation, portable, causes of action, electronic, compen-

sable injury, savings clause, federal law, diminished,

breach of warranty, federal preemption, preemption

issue, regulation, warning, motion to dismiss, emit,

express provision, reinstated, proven, label, breach of

implied warranty, failed to provide, merchantability

COUNSEL: For Frank J. Schiffner, APPELLANT: Ben

Barnow, Alan M. Goldberg, and Juanita H. Chen, all of

Barnow & Goldberg, P.C., and Aron D. Robinson, both

of Chicago.

App. 2

For Motorola, Inc., APPELLEE: Garrett B. Johnson,

Brian D. Sieve, and Terrence J. Dee, all of Kirkland &

Ellis, of Chicago.

JUDGES: JUSTICE GREIMAN delivered the opinion

of the court. ZWICK and QUINN, JJ., concur.

OPINION BY: GREIMAN

OPINION:

[(*1100] JUSTICE GREIMAN delivered the opinion of

the court:

Plaintiff Frank J. Schiffner appeals the dismissal

of his fourth amended complaint against defendant

Motorola, Inc., based on defendant’s marketing and sale

of cellular telephones. The circuit court granted defen-

dant’s section 2-615 motion to dismiss (735 ILCS 5/2-

615 (West 1996)), finding that federal law preempted

plaintiff's state law causes of action pursuant to the

decision in Verb v. Motorola, Inc., 284 Ill. App. 3d 460

(1996), appeal denied, 172 Ill. 2d 568 (1997).

The issue on appeal is whether plaintiff's causes of

action under state law are preempted by federal law,

i.e., the Electronic Product Radiation Control Act (Act)

(21 U.S.C.A. $§ 360hh through 360ss (West [*1101]

Supp. 1998)). The Verb court held that the Act pre-

empted the same causes of action advanced by the

instant plaintiff [**2] in his fourth amended complaint.

We find the Verb case persuasive and dispositive of this

issue. Thus, we affirm the dismissal of plaintiff's com-

plaint.

In addition, however, plaintiff contends that his com-

plaint, unlike the Verb complaint, sufficiently stated a

compensable injury by alleging the diminished value of

App. 3

a product due to defects associated with the product.

We agree with plaintiff that such an allegation states

a compensable injury.

The procedural background of this case tracks the

path of the Verb complaint through the appellate de-

cision in Verb, which was first filed in March 1996 and

then, upon the denial of a petition for rehearing, was

issued as a modified opinion in November 1996.

In August 1993, the circuit court dismissed the Verb

complaint, holding that its subject matter was preempt-

ed by federal law and ruling that the Verb plaintiffs

had not alleged a compensable injury. The circuit

court’s ruling was appealed.

In June 1995, the present plaintiff filed a second

amended complaint. Defendant filed a motion to dis-

miss based on the circuit court’s previous dismissal of

the Verb complaint, which was then pending on appeal.

In March [**3] 1996, the appellate court filed its opin-

ion in Verb and affirmed the dismissal of the Verb com-

plaint. The Verb plaintiffs filed a petition for rehearing

with the appellate court.

In response to the March 1996 Verb decision, the

present plaintiff sought and received leave to file an-

other amended complaint in June 1996. In September

1996, defendant filed another section 2-615 motion to

dismiss plaintiffs third amended complaint or, in the

alternative, a stay pending the appellate court’s ruling

the rehearing petition on Verb. The circuit court grant-

ed a stay. In November 1996, the appellate court denied

the Verb rehearing petition and filed a modified opin-

ion.

App. 4

In response to the Verb modified opinion, the circuit

court lifted the stay in the present case in February

1997. On February 5, 1997, the circuit court, finding

that the Verb opinion was dispositive on the preemp-

tion issue and binding on it, dismissed plaintiff's third

amended complaint and allowed plaintiff to amend

again.

With this background and direct link to Verb, plain-

tiff then filed his fourth amended complaint, which is

at issue in the present appeal. Plaintiff's fourth amend-

ed [**4] complaint arises out of the marketing and sale

of cellular portable telephones by defendant. Plaintiff

alleged three causes of action: (1) breach of implied

warranty of merchantability under the Uniform Com-

mercial Code (810 ILCS 5/2-103 et [*1102] seq. (West

1992)); (2) consumer fraud; and (3) violation of the

Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.

(1994)). In addition, plaintiff sought certain injunctive

relief to stop defendant from continuing its alleged

illegal acts and conduct on an ongoing basis as alleged

in the complaint.

The gravamen of plaintiff's complaint is that defen-

dant manufactured and sold cellular portable tele-

phones that were defective because of the uncertain

safety of the product and defendant’s failure to disclose

potential health risks and potential hazards associated

with the use of the product. Cellular portable phones

operate with a transmission antenna that emits the

phone’s electromagnetic radio waves into the phone

unit. Plaintiff further alleges that defendant did not

complete studies to definitively and accurately ascertain

the safety of the use of the phones and defendant failed

to advise plaintiff that the phones had not been proven

App. 5

(**5] safe. Plaintiff also alleged that defendant failed to

adequately package or label the phones; failed to pro-

vide adequate information about the health risks; failed

to provide adequate guards to shield the user from

electromagnetic field (EMF) radiation; failed to provide

adequate instructions on how to use the phone; and

failed to adequately design the phone.

Defendant again filed a section 2-615 motion to dis-

miss plaintiffs complaint. The circuit court dismissed

plaintiff's fourth amended complaint and, relying on the

Verb decision, stated that the grounds for dismissal

were preemption and “a lack of cognizable injury.”

As a threshold matter, defendant asserts that the

principles of stare decisis require this panel, the sixth

division of the first district, to follow the precedent

established by the second division of the first district in

Verb. Defendant’s assertion fails for two reasons. First,

the doctrine of stare decisis requires courts to follow

the decisions of higher courts, but does not bind courts

to follow decisions of equal or inferior courts. Village of

Northbrook v. Cannon, 61 Ill. App. 3d 315, 322, 18 Til.

Dec. 572, 377 N.E.2d 1208 (1978). Second, [{**6] “stare

decisis is a policy of the courts to stand by precedent

and leave settled points of law undisturbed.” Charles v.

Seigfried, 165 Ill. 2d 482, 492, 209 Ill. Dec. 226, 651

N.E.2d 154 (1995). The point of law at issue in the

instant case is hardly settled law because, to date, the

Verb opinion is the sole decision in the country on

federal preemption under the Act. Moreover, a split in

authority between the divisions of the first district is

not unprecedented and has led to an ultimate resolu-

tion by the supreme court. See, e.g., Moore v. Jackson

Park Hospital, 95 Ill. 2d 223, 69 Ill. Dec. 191, 447 N.E.

App. 6

2d 408 (1983) (resolving contrary decisions between the

fourth division of the first district (Muller v. Health &

Hospital Governing Comm’n, 106 Ill. App. 3d 383, 62

Ill. Dec. 444, 436 N.E.2d 26 (1982)) and the first di-

vision of the first district (Isaacs v. Michael Reese

Hospital & Medical Center, 101 Ill. App. 3d 876, 57 Iil.

Dec. 261, 428 N.E.2d 941 [*1103] (1981))).' Thus, we

decline defendant’s invitation to apply stare decisis to

the instant appeal.

[**7] We review de novo the dismissal of a complaint

under section 2-615 for failure to state a cause of action

upon which relief can be granted. Vernon v. Schuster,

179 Ill. 2d 338, 344, 228 Ill. Dec. 195, 688 N.E.2d 1172

(1997); Douglas Theater Corp. v. Chicago Title & Trust

Co., 288 Ill. App. 3d 880, 883, 224 Ill. Dec. 249, 681

N.E.2d 564 (1997).

On appeal, plaintiff essentially asserts that the Verb

case was wrongly decided and that the Verb opinion

failed to address plaintiff's arguments. We disagree.

The principles of federal preemption are well estab-

lished. The doctrine of preemption is based on the

supremacy clause of the United States Constitution,

which mandates that “‘the Laws of the United States

' While appellate court panels are bound only by higher

courts, a circuit court may find it confusing to determine by

which appellate court it may be bound. See Aleckson v. Village

of Round Lake Park, 176 Ill. 2d 82, 94, 223 Ill. Dec. 451, 679

N.E.2d 1224 (1997) (Harrison, J., specially concurring, joined

by Heiple, C.J.) (the majority holds that a circuit court is

bound by the decisions of the appellate court of the district in

which its sits and the special concurrence observes that since

there is only one appellate court, a decision by any appellate

court is binding on all circuit courts in the state).

App. 7

*** shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.’” Orman v. Charles Schwab

& Co., 179 Ill. 2d 282, 285, 227 Ill. Dec. 927, 688

N.E.2d 620 (1997) (applied federal preemption), queting

U.S. Const., art. VI, cl. 2; Stern v. Norwest Mortgage,

Inc., 179 Ill. 2d 160, 166, 227 Ill. Dec. 762, 688 N.E.2d

99 (1997) (rejected federal [**8] preemption).

Congressional intent determines whether a federal

statute preempts state law. Scholtens v. Schneider, 173

Ill. 2d 375, 379, 219 Ill. Dec. 490, 671 N.E.2d 657

(1996) (no preemption); Busch v. Graphic Color Corp.,

169 Ill. 2d 325, 334, 214 Ill. Dec. 831, 662 N.E.2d 397

(1996) (and cases cited therein) (preemption applies).

“An act of Congress or regulatory law promulgated

thereunder may supersede the statutory, regulatory or

common law of any state where such ‘is] the clear and

manifest purpose of Congress.’” Orman, 179 Ill. 2d at

‘85, quoting Cipollone v. Liggett Group, Inc., 505 U.S.

504, 516, 120 L. Ed. 2d 407, 422, 112 S. Ct. 2608, 2617

(1992), quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230, 91 L. Ed. 1447, 1459, 67 S. Ct. 1146,

1152 (1947).

The intent of Congress to preempt state law may be

manifested “‘by express provision, by implication, or by

a conflict between federal and state law.’” Busch, 169

Ill. 2d at 335, quoting New York State Conference of

Blue Cross & Blue Shield Plans v. Travelers Insurance,

[*1104] Co., 514 U.S. 645, 654, 131 L. Ed. 2d 695, 704,

115 S. Ct. 1671, 1676 (1995); see also Orman, 179 Ill.

2d at 285 [**9] (“[a] congressional act can either ex-

pressly or implicitly preempt a state cause of action”),

App. 8

citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287,

131 L. Ed. 2d 385, 392, 115 S. Ct. 1483, 1487 (1995);

see also Scholtens, 173 Ill. 2d at 379 (“Congress’ intent

to preempt state law may be explicitly stated in the

statute’s language or implicitly contained in its struc-

ture and purpose”), citing Shaw v. Delta Air Lines, Inc.,

463 U.S. 85, 95, 77 L. Ed. 2d 490, 500, 103 S. Ct. 2890,

2900 (1983).

Notably, decisions of federal courts interpreting a

federal act are controlling upon Illinois courts so that

a federal act would be given uniform application.

Busch, 169 Ill. 2d at 335. However, since no federal

court has yet construed the preemptive scope of the Act,

we can seek no guidance there. In addition, research

has revealed that no other state has addressed the

issue presented here. Thus, the only court to decide the

preemptive effect of the Act is the Verb court.

The Verb court specifically found “that the FDA [Food

and Drug Administration] does preempt a state’s power

over the issues in the case at bar because the FDA

directly regulates electronic products [**10] that emit

radiation with regard to public health.” Verb, 284 Il.

App. 3d at 468. The Verb court quoted the Act as the

empowering statute.

Factually, the Verb case and the instant case are

indistinguishable: (1) the allegations in the complaints

are virtually alike for purposes of the preemption issue,

albeit not identical for purposes of the damage issue;

and (2) the causes of action asserted in the complaints

are the same. Regarding the allegations, the Verb court

characterized the Verb complaint as follows:

“In the present case, plaintiffs’ complaint *** cen-

tered on the lack of warnings as to the safety of and

App. 9

possible health risks caused by cellular telephones

purchased by them which, the parties agree, emit

radiation. More specifically, as stated in plaintiffs’

opening brief on appeal, “This case arises out [of]

the Defendents’ failure to warn the consuming

public, including putative Plaintiffs, of the risks

associated with the use of cellular portable tele-

phones and the Defendants’ false pronouncements

of the phones’ “proven” safety, the safety of which

has clearly not been proven.’ (Emphasis in origi-

nal.)” Verb, 284 Ill. App. 3d at 469.

The [**11] instant complaint can aptly be described in

the exact same way. In addition, the causes of action

are the same and plaintiff apparently does not contest

that fact. The causes of action in each case include

breach of implied warranty of merchantability, violation

of the Magnuson-Moss Warranty Act and consumer

fraud.

As to the legal issue, plaintiff's arguments on appeal

as to the [*1105] merits of preemption were addressed

by the Verb court. First, plaintiff observes that the Act

does not expressly preempt state law claims. Indeed,

the Verb court did not find that an express preemption

existed in the Act. Rather, the Verb court correctly

observed that “Congress can assert exclusive power

either by explicit statutory language or by regulating a

matter in such detail as to leave no room for state

involvement.” Verb, 284 Ill. App. 3d at 467; see also

Busch, 169 Ill. 2d at 335 (federal preemption can be

evidenced “by express provision, by implication, or by a

conflict between federal and state law” (emphasis

added)).

Second, plaintiff argues that preemption does not

apply because there have been no standards prescribed

a

App. 10

for the performance of cellular portable telephones

[**12] and, therefore, there can be no conflict between

federal and state law. The Verb court expressly found:

“It is irrelevant whether the FDA has not set any

standards, as plaintiffs allege, because the power to

do so nonetheless resides with the FDA. Any deter-

mination by the trial court as to whether the cellu-

lar telephones are unsafe and what warnings and

labels must be made would require the court to

establish standards of safety and warnings, which

would usurp the FDA’s exclusive power to do so

with respect to electronic products that emit radia-

tion.” Verb, 284 Ill. App. 3d at 469.

The absence of an affirmative regulation by an agency

that is authorized to make such regulations does not

discharge its power to do so and does not extinguish

Congress’ intent to relegate the authority tc a federal

agency to enact, where appropriate and approved, uni-

form national standards. See Ray v. Atlantic Richfield

Co., 435 U.S. 151, 178, 55 L. Ed. 2d 179, 201, 98 S. Ct.

988, 1004 (1978); cf. Freightliner Corp. v. Myrick, 514

U.S. 280, 286, 131 L. Ed. 2d 385, 392, 115 S. Ct. 1483,

1487 (1995) (the applicable federal agency did not have

“all authority over the regulated area” under [**13] a

different statute). Moreover, as previously stated, the

United States Supreme Court has recognized three

ways in which preemption of state law may arise: “by

express provision, by implication, or by a conflict be-

tween federal and state law.” (Emphasis added.) New

York State Conference of Blue Cross & Blue Shield

Plans, 514 U.S. at 654, 131 L. Ed. 2d at 704, 115 S. Ct.

at 1676. Therefore, the lack of an actual conflict be-

tween federal and state law does not necessarily de-

termine whether preemption applies.

App. 11

Third, plaintiff argues that the Act does not preempt

his state law claims, relying on Medtronic, Inc. v. Lohr,

518 U.S. 470, 135 L. Ed. 2d 700, 116 S. Ct. 2240 (1996).

The Verb court discussed and distinguished the Lohr

case. Verb, 284 Ill. App. 3d at 470. The Lohr [*1106)

court held that the plaintiffs’ state claims, which were

based on the defendant’s manufacture of a pacemaker

that failed and caused injuries to the recipient of the

pacemaker, were not preempted by the federal Medical

Device Amendments of 1976 (MDA) (21 U.S.C. $ 360

(1994)). The Verb court held that “Lohr is distinguish-

able from the present case not only because it involved

a statute [**14] different from the one here, but more

important because plaintiffs here did not allege a pres-

ent personal injury.” Verb, 284 Ill. App. 3d at 470.

Fourth, plaintiff criticizes the Verb court for only dis-

cussing Lohr and not addressing “most of Plaintiff's

authority dealing with construction of similar statutes.”

The Verb court correctly noted that “the key inquiry in

all preemption cases is the objective or purpose of

Congress in enacting the particular statute. The doc-

trine requires courts to examine the Federal statute in

question to determine whether Congress intended it to

supplant State laws on the same subject.” (Emphasis

added.) Verb, 284 Ill. App. 3d at 467-68. The Supreme

Court in Lohr emphasized that to analyze preemption,

courts must consider the language of the statute, the

statutory framework surrounding it, the structure and

purpose of the statute as a whole, and “the way in

which Congress intended the statute and its surround-

ing regulatory scheme to affect business, consumers,

and the law.” Lohr, 518 U.S. at 486, 135 L. Ed. 2d at

716, 116 S. Ct. at 2250-51. Obviously different statutes,

App. 12

diffanent pieenpien provisions and different |**15)

regulations will be interpreted differently. E.g., Orman,

179 Ill. 2d 282, 227 Ill. Dec. 927, 688 N.E.2d 620 (class

actions alleging state law claims were preempted by the

federal Securities Exchange Act of 1934 (15 U.S.C.

§ 78a et seq. (1994))); Busch, 169 Ill. 2d 325, 214 Illi.

Dec. 831, 662 N.E.2d 397 (common law claims were pre-

empted by the Federal Hazardous Substances Act (15

U.S.C. $ 1261 et seq. (1988)), cf. Scholtens, 173 Ill. 2d

375, 219 Ill. Dec. 490, 671 N.E.2d 657 (the federal

Employee Retirement Income Security Act (29 U.S.C.

§ 1144 (1982)) did not preempt state theory of recov-

ery). Furthermore, even the same statute can require

differing results as to preemption given different un-

derlying facts. E.g., Lohr, 518 U.S. 470, 135 L. Ed. 2d

700, 116 S. Ct. 2240 (the MDA did not preempt state

claims); cf., R.F. v. Abbott Laboratories, No. A-2050-

96T2 (May 7, 1998) (the MDA did preempt the plain-

tiffs’ state claims due to FDA involvement). As noted

above, the Verb court discussed the Lohr decision, the

case on which plaintiff primarily relies, and distin-

guished it on the grounds that it involved a different

statute. This court is not aware of any requirement

that [**16] its decisions must include or discuss each

and every case cited as authority by a party on appeal.

Fifth, plaintiff contends that state claims are allowed

by a general savings clause in the Act, which declares

that “the remedies provided for in this part shall be in

addition to and not in substitution [*1107] for any other

remedies provided by law.” 21 U.S.C.A. § 360pp(f) (West

Supp. 1998). Although it did not mention the savings

clause, the Verb court relied on two other provisions in

the Act. The Verb court quoted the provision mandating

the FDA secretary to promulgate regulations

App. 13

“for electronic products to control the emission of

electronic product radiation from such products if

he determines that such standards are necessary

for the protection of the public health and safety.

Such standards may include provisions for the test-

ing of such products and the measurement of their

electronic product radiation emissions, may require

the attachment of warning signs and labels, and

may require the provision of instructions for the

installation, operation, and use of such products.”

21 U.S.C.A. $ 360kk(a)(1) (West Supp. 1998).

The Act further includes a preemption clause: [**17]

“Whenever any standard prescribed pursuant to

section 360kk of this title with respect to an aspect

of performance of an electronic product is in effect,

no State or political subdivision of a State shall

have any authority either to establish, or to con-

tinue in effect, any standard which is applicable to

the same aspect of performance of such product and

which is not identical to the Federal Standard.

Nothing in this part shall be construed to prevent

the Federal Government or the government of any

State or political subdivision thereof from establish-

ing a requirement with respect to emission of radi-

ation from electronic products procured for its own

use if such requirement imposes a more restrictive

standard than that required to comply with the

otherwise applicable Federal standard.” 21 U.S.C.A.

§ 360ss (West Supp. 1998).

Based on these provisions, the Verb court held that the

plaintiffs’ claims were preempted by the FDA. Verd,

284 Ill. App. 3d at 468-69. Although the Verb court did

not discuss the general savings clause, the Illinois

Supreme Court in Orman found that a general savings

clause is not conclusive as to preemption. Orman, 179

App. 14

Ill. 2d at 292. [**18] The Illinois Supreme Court relied

on the United States Supreme Court’s opinion in

Freightliner in explaining that “a statutory preemption

clause which preempts state laws that conflict with the

federal law, but which also preserves nonconflicting

state laws, does not foreclose the possibility of implied

preemption.” Orman, 179 Ill. 2d at 293, citing Freight-

liner, 514 U.S. at 288-89, 131 L. Ed. 2d at 393, 115

S. Ct. at 1488. Accordingly, the general savings clause

in the Act does not necessarily preserve state claims.

We find that the Verb decision was correctly decided

and addressed the legal arguments now presented by

plaintiff on the preemption issue. Accordingly, we af-

firm the dismissal of plaintiff's fourth amended com-

plaint because the state claims are preempted by fed-

eral law.

(*1108] Notwithstanding our agreement with the

Verb opinion on the preemption issue, we would not

find the Verb opinion to be decisive on the damage

issue because, unlike the Verb complaint, the instant

complaint sufficiently alleged a compensable injury

based on diminished value of the product due to defects

associated with the product is a compensable injury in

consumer fraud [**19] and breach of warranty causes

of action. Claims for diminished value of an allegedly

defective product without the pleading of any damage

to the product or person were allowed in Connick v.

Suzuki Motor Co., 174 Ill. 2d 482, 221 Ill. Dec. 389, 675

N.E.2d 584 (1996), and Perona v. Volkswagen of

America, Inc., 292 Ill. App. 3d 59, 225 Ill. Dec. 868, 684

N.E.2d 859 (1997). Moreover, even the Verb court

would have accepted such damage allegations. Most

notably for the purposes of the present appeal the Verb

App. 15

court held that the Verb plaintiffs failed to “allege that

the telephones are defective” and “failed to plead

specific facts *** that the telephones have diminished

in value.” Verb, 284 Ill. App. 3d at 472.

Paragraph 39 of the instant fourth amended com-

plaint alleges:

“Defendants[’] cellular portable phones were defec-

tive in that they were sold:

a. Without adequate information about the health

risks and the lack of information on the effects of

EMF on human cells;

b. Without adequate guards to shield the user

from the EMF radiation;

c. Without adequate instructions on how to use

the phone including how to hold the phone so as to

reduce exposure from EMF [**20] radiation;

d. Without adequate design so as to increase the

distance between the user’s head and the antenna

of the phone.”

Regarding damages in its count for breach of implied

warranty of merchantability, paragraph 43 of plaintiff's

complaint states:

“Plaintiff and members of the Class have been

damaged by a reduction in the value of the cellular

portable telephones, limiting the duration of their

calls and usage of the cellular portable telephone,

by modifying the cellular portable telephones or the

use thereof to limit or mitigate their exposure to

the harmful or potentially harmful radio waves, by

being subjected to increased risk of exposure to

potentially harmful radio waves, by failure to re-

ceive that which was bargained for.”

App. 16

Regarding damages in his count for statutory consum-

er fraud, paragraph 56 of the complaint states that

“Plaintiff and Class Plaintiffs have been damaged as

well by the loss of value of the phones they have

purchased.”

In Connick, the plaintiffs filed a class action lawsuit

against car companies that manufactured the Suzuki

Samurai after a consumer organization designated the

Samurai as unsafe based on its excessive [*1109] risk

of rolling over. In [(**21] their complaint, plaintiffs

alleged that the risk of rollover was due to a defect in

either design or production, and stated claims for

implied warranty and consumer fraud. “Significantly,

plaintiffs did not allege that they had ever suffered a

rollover accident in a Samurai. Rather, they sought

compensation for the diminution in the vehicles’ resale

value due to the perceived safety risk.” Connick, 174 Ill.

2d at 489.

The breach of warranty claim was dismissed by the

supreme court in Connick, holding that the plaintiffs

failed to allege sufficient notice to satisfy the notice

requirement for a breach of warranty claim. Connick,

174 Ill. 2d at 495. The Connick court did not discuss

the damage allegation for the breach of warranty claim.

The statutory consumer fraud count was reinstated

but the Connick court did not discuss the damage

allegation. Connick, 174 Ill. 2d at 501-05. The supreme

court held that “we reinstate the Illinois consumer

fraud count, but only insofar as it was based on the

1986 Car & Driver article or on Suzuki’s concealment

of material facts regarding the Samurai’s safety risk.”

Connick, 174 Ill. 2d at 505. However, at least by

App. 17

implication, [**22] if the damage allegation had been

insufficient the supreme court would not have reinstat-

ed the claim.

In Perona, the plaintiffs filed a class action based on

the alleged unintended acceleration of the Audi 5000

automobiles. Following the decision in Connick, the

Perona court dismissed the breach of warranty count

due to lack of notice and allowed the statutory consum-

er fraud count to stand. Perona, 292 Ill. App. 3d at 64,

69. Although the Perona court did not discuss the

damage allegations in the complaint, it noted that the

plaintiffs claimed that their cars lost their resale value

and if the problem were not eventually remedied, their

damages would be the amount of the diminution of the

resale value. Perona, 292 Ill. App. 3d at 62-63. As in

the Connick case, at least by implication, if the com-

plaint had not sufficiently pled damages, then the

Perona court would not have reinstated the consumer

fraud claim.

We believe that the decisions in Connick, Perona, and

Verb allow damage claims based on alleged diminished

value of a product. Thus, unlike the Verb complaint,

plaintiff's fourth amended complaint adequately alleged

damages. [**23]

For all of the foregoing reasons, we affirm the dis-

missal of plaintiff's fourth amended complaint.

Affirmed.

ZWICK and QUINN, JuJ., concur.

App. 18

Frank J. Schiffner, etc., petitioner, v.

Motorola, Inc., respondent.

No. 85976

SUPREME COURT OF ILLINOIS

1998 Ill. LEXIS 1479

October 6, 1998, Decided

NOTICE: DECISION WITHOUT

PUBLISHED OPINION

PRIOR HISTORY: [*1] Leave to appeal, Appellate

Court, First District. (1-97-2456).

JUDGES: McMorrow, J., took no part.

OPINION: Petition for leave to appea! denied.

McMorrow, J., took no part.