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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1017

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1112%3A1. Public record. Not legal advice.