Opposition Brief — Ford Motor Co. v. King

P "Supreme court, US. |

FILED

@ SEP 29 9000

- No. 00-430

CLERK

In The

Supreme Court of the Anited States

FORD MOTOR COMPANY and

MAZDA MOTOR CORPORATION,

Petitioners,

V.

CHARLES KING, as Administrator of the Estate of

Patti Ann King; AMANDA SUE KING, by and through

her next friend Charles King; and

ASSOCIATED INSURANCE COMPANIES,

Respondents.

On PETITION For Writ Or CERTIORARI

- To Tue UNITED States Court OF APPEALS

For THe Srxts Circuit

RESPONDENTS' BRIEF IN OPPOSITION

SAMUEL E. DAviEs * Car G. CUNNAGIN

ATTORNEY AT LAW ATTORNEY AT LAW

TOWNE SQUARE PLACE P.O. Box 155

230 KNox STREET McKeg, KY 40447

BARBOURVILLE, KY 40906 (606) 287-7732

(606) 546-5196

Counsel for Respondents

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

TABLE OF CONTENTS

SO EE ok eS i

SAmee OF AUTHORING 422.6 2 Ae il

CONSTITUTIONAL AND STATUTORY

Pm Viswones INVOLVE. ooo lla ck. ]

COUNTERSTATEMENT OF THECASE......... 1

Meee 8. 9

NE. wh bere wae en ee err 16

APPENDIX

Appendix A

District Court Memorandum Opinion and

SPI oo ted Be eS la

\

Appendix B

District Court Complaint, 4/14/95 .......... Ta

Appendix C

Pe RS See es ee ss l4a

Appendix D

Federal Motor Vehicle Safety Standard, 49

Cre eT cad Swe os 17a

TABLE OF AUTHORITIES

FEDERAL CASES

Freightliner Corporation v. Myrick,

Ste UU. F. SO POO bbe eos 0 ol eee 14

GTE Mobilenet v. Johnson,

Lil © 3g GGp fee Gat. T9GT) oc ks ke as Pe |,

Geier v. American Honda Motor Company,

Ray &. G2. Feo Re a cata e ean passim

Hines v. Davidowitz,

312 U. S. 52, 61 S. Ct. 399

Re bax Sos ORE CREE Ss ks ces ees i, ii, ts

Irving v. Mazda Motor Corporation,

136 F. 3d 764 (11th Cir. 1998)......... 12, 14

King v. Ford Motor Co.,

209 F. 3d 886 (6th Cir. 2000) ......... passim

Lawrence v. Chater,

See a). By SOP CAPO? ss 5 ke ee ee ee 15-16

Lords Landing Village Condominium Council of

Unit Owners v. Continental Insurance Company,

LAs ch WOO CURSE) 8s cae ee ee 14

Stutson v. United States,

516 U.S; Wee Cl ba va ees 14-15, 15

Thomas v. American Home Products, Inc.,

FIR: cee k8 a owe ee 15

FEDERAL STATUTES AND REGULATIONS

15 U.S.C. § 1397(k) (1988 ed.)

recodified at 49 U.S.C. § 30103(e) ... 1,9, 13

a ee | ea wre 4,5, 8, 11

ek) ard ks ok 8 8 we 8 ee 1, 6

ili

CON N TATUTORY

PROVISIONS INVOLVED

There are a couple of relevant provisions which Ford'

omits. First, Ford’s brief omits a significant provision of the

Safety Act, namely 15 U.S.C. § 1397(k) (1988 ed.)’,

commonly known as the “savings clause,” which read as

follows:

Compliance with any Federal motor vehicle

safety standard issued under this subchapter

does not exempt any person from any liability

under common law. - :

Further, Federal Motor Vehicle Safety Standard 209,

49 C. F. R. § 571.209, is relevant. The relevant excerpt is

contained in Appendix D at 17a.

COUNTERSTATEMENT OF THE CASE

The view that Ford has of this case differs not only

from the view of the Respondents (collectively “the

Plaintiffs”) but also from that of the lower courts, as is amply

demonstrated in the Argument herein. Even though the lower

courts admittedly did not have the benefit of this Court’s

decision in Geier v. American Honda Motor Company, 120 S.

' Respondents adopt the convention of the Petitioners’

brief of referring to the Petitioners collectively as “Ford.”

? Now codified with a slight change in wording at 49

U.S.C. § 30103(e).

Ct. 1913 (2000), they nevertheless demonstrated a correct

understanding of the law but disagreed with Ford on the facts.

With regard to the specifics, Ford stresses the

significance of Count II of the Complaint, which was the

negligence count. The Complaint (R.’ 1, Apx.* pgs. 31-36)

also included the standard strict liability count (Count I) and

breach of warranty count (Count III). For the convenience of

the Court, the entire Complaint (less the exhibit) is included

in Appendix B herein at 7a-13a.

However, the Jury Verdict was not based on the

Complaint but on its Instructions. Not only did the

Instruction based on Count II (see Jury Instructions, R. 167,

Instruction No. 14, Apx. pg. 215, Appendix’ C at 15a) not

include a theory of per se defect, but the Jury was specifically

instructed that the choice of options made by Ford was not to

be a basis for finding liability. See R. 167, Instruction No.

16, Apx. pg. 216, Appendix C at 15a). Further, the Jury was

also instructed with regard to the strict liability count. See R.

167, Instruction No. 13, Apx. pg. 214, Appendix C at 14a.

The Jury found for the Plaintiffs on both the strict liability

claim and the negligent warnings claim. See Supplemental

Jury Verdict, R. 170, Interrogatories No. 1 and 3, Apx. pgs.

230, 232. (The breach of warranty claim was not submitted

to the Jury.)

> “R.” refers to the record entry number assigned by the

Clerk of the District Court.

4

“Apx.” refers to the Joint Appendix filed with the

Court of Appeals.

> Refers to the Appendix filed with this Brief.

2

Further, Ford takes Count II out of context. Pursuant

to paragraphs 10 and 11 of the Complaint, references in

Count II to the Escort referred to this specific vehicle (1992

Ford Escort) and not to vehicles in general. As this Court

noted in Geier (120 S. Ct. at 1927), the Amicus Curiae brief

for the government stated that:

“a claim that a manufacturer should have

chosen to install airbags rather than another

type of passive restraint in a certain model of

car because of other design features particular

to that car . . . would not necessarily frustrate

Standard 208’s purposes.”

The essence of Count II (and the rest of the Complaint) was

that Ford had “fail[ed] to provide a restraint system which

was reasonably safe.” As will be seen, Plaintiffs suggested a

number of alternative designs for making the system safe, all

of which were feasible to implement within the design choice

made by Ford. :

With regard to the relevant facts, probably the most

Significant fact about this case is that it is not a case in which

the restraint system merely failed to prevent a death that

would have otherwise been caused by the accident, but a case

in which the restraint system actually caused the death.

Although Ford tried to take the position that it was the

severity of the crash that caused the death, Steve Syson

(Plaintiffs’ automotive engineer expert) estimated the total

“Delta-V” (sudden change of velocity) to be only about 26 or

27 miles per hour. See R. 185 (Tr.°, Day 2), pgs. 111-12,

Apx. pgs. 641-42. By contrast, as Ford’s expert Michelle

6

“Tr.” refers to the transcript of the trial.

3

Vogler conceded, the government crash tests are conducted at

30 and 35 miles per hour (R. 188 (Tr., Day 5), pg. 78, Apx.

pg. 1207), and the restraint system used in the vehicle (a

shoulder belt and knee bolster) should be safe in a frontal

collision even with a Delta-V of 35 miles per hour (/d., pgs.

77-78, Apx. pgs. 1206-07). Further, Dr. James Lafferty

(Plaintiffs’ biomechanical engineer expert) testified that it was

the force of Mrs. King’s body against the shoulder belt that

caused her death (R. 187 (Tr., Day 4), pg. 45, Apx. pg. 987).

Also, it is significant that the collision in this case was

a frontal collision which occurred when another vehicle

turned directly in front of the subject vehicle in which Patti

King was riding. See testimony of Ginger Brockman (the

driver of the subject vehicle), R. 184 (Tr., Day 1), pgs. 86-

87, Apx. pgs. 478-79. This is significant since under the

restraint system option chosen by Ford, Standard 208 (49

C.F.R. § 571.208) required that frontal crash protection be

provided by a “passive” restraint system (one that required no

action by the occupants). See the Court of Appeals Opinion

herein, King v. Ford Motor Co., 209 F. 3d 886, 891-92

(Ford’s Appendix at A-22 and A-23).

The Federal Motor Vehicle Safety Standards

(“FMVSS”) do not specify the specific components to be

utilized to comply with the option chosen-by Ford (a totally

passive system for frontal collisions). Ford chose to use an

automatic shoulder belt for restraining the upper part of the

body and a “knee bolster” for restraining the lower part of the

body. (The “knee bolster” for the right front passenger was

the lower part of the dashboard or the glove box door. See

testimony of Mr. Syson, R. 185 (Tr., Day 2), pg. 156, Apx.

pg. 686.) A knee bolster is nowhere mentioned in the

FMVSS. As the Court of Appeals recognized (209 F. 3d at

892, Ford’s Appendix at A-23 and A-24), under Plaintiffs’

Je

4

theory of the case, the problem with the restraint system was

not the option or Ford’s choice for implementing the option,

but that the specific design of the components in the system in

this particular vehicle wasn’t safe.

The restraint system involved in this case had one

basic flaw -- it permitted excessive “shoulder belt loads” the

force of the human body against the shoulder belt in a crash.

See testimony of Mr. Syson, R. 185 (Tr., Day 2), pg. 138,

Apx. pg. 668; and testimony of Dr. Lafferty, R. 187 (Tr.,

Day 4), pgs. 42-43, Apx. pgs. 984-85.

Within the option chosen, Plaintiffs’ experts suggested

four separate alternative designs to make the restraint system

safer for frontal collisions, namely, incorporating some form

of “load-limiter” in the shoulder belt, moving the shoulder

belt anchor further back, moving the “knee bolster” closer to

the knees of the front seat passenger and, finally, having

stronger warnings and reminders directed to the front seat

passenger to encourage use of the lap belt. All of the

alternatives were feasible to implement within the design

choice chosen by Ford for protecting against frontal collisions

~- an automatic shoulder harness with a knee bolster. With

regard to the alternatives suggested, the FMVSS are silent

with regard to the location of the shoulder belt anchor (for a

“passive” system), are silent with regard to the knee bolster,

are silent with regard to warnings and reminders to fasten the

lap belt directed to the front seat passenger, and are silent

with regard to sun visor warning labels for both the driver and

the passenger, a significant aspect of the Plaintiffs’ case.

(The FMVSS do regulate dashboard warning lights and

buzzers or chimes directed to the driver. See Standard 208

(49 C.F.R. § 571.208), Sections 4.5.3.3(b) and 7.3(a).)

Further, the FMVSS did recognize the need for and efficacy

of the use of load-limiters. Specifically, Section 4.5 of

Standard 209 (49 C.F.R. § 571.209) provides for load-

limiters which are defined in Section 3’ as being “a seatbelt

assembly component or feature that controls tension on the

seatbelt to modulate the forces that are imparted to occupants

restrained by the belt assembly during a crash.”

As indicated, the first alternative suggested was to

incorporate some form of “load-limiter” in the belt. Mr.

Syson testified that there were a number of different designs

for load-limiters which were feasible and, in fact, were being

utilized in other vehicles (R. 185 (Tr., Day 2), pgs. 143-152,

Apx. pgs. 673-682); that such load-limiters would, depending

upon the design chosen, reduce the belt load anywhere from

20% (Id., pg. 147, Apx. pg. 677) to 50% (/d., pg. 151, Apx.

pg. 681); that load-limiters would work regardless of whether

or not the lap belt was used (R. 186 (Tr., Day 3), pg. 29,

Apx. pg. 739); and that the use of a load-limiter was probably

the best way to reduce the risk of serious injury (/d., p. 212,

Apx. pg. 922).

The second alternative was to move the shoulder belt

anchor back so that it would be behind the passenger. See

testimony of Mr. Syson, R. 185 (Tr., Day 2), pgs. 155-56,

Apx. pgs. 685-86 and R. 186 (Tr., Day 3), pgs. 211-12, Apx.

pgs. 921-22. Indeed, Roger Maugh, one of Ford’s experts,

admitted that this vehicle could not be sold in Canada because

the shoulder belt anchor was too far forward to comply with

Canadian design regulations. See R. 189 (Tr., Day 6), pgs.

85-86, Apx. pgs. 1379-80. Again, as previously noted, the

FMVSS do not regulate the positioning of the anchor.

’ The relevant part of Section 3 is included in Appendix

D herein at 17a.

The third alternative Suggested was to move the “knee

bolster” closer to the knees of the front Seat passenger. Mr.

Syson testified that the farther away the knee bolster was from

the right front passenger’s knees, the higher the shoulder belt

load would be (R. 185 (Tr., Day 2), pg. 157, Apx. pg. 687);

that the purpose of the knee bolster was to balance the load

between the pelvis and the chest (Ibid); that according to an

internal Ford document (Plaintiffs’ Exhibit 111), Ford’s own

engineer recommended a couple of months before the

manufacture of the subject vehicle that 100 mm was the

maximum distance recommended between the knee and the

knee bolster in order to reduce the potential for a lower rib

cage organ injury (R. 186 (Tr., Day 3), pgs. 34-36, Apx. pgs.

744-46); that Ford’s own seating arrangement drawing of a

1992 Escort (Plaintiffs’ Exhibit 129) depicted more than 100

mm between the front of the lower leg and the knee bolster

(Id., pgs. 30-31, Apx. Pgs. 740-41); that the National

Highway Traffic Safety Administration tests on the 1991]

Escort® (Plaintiffs’ Exhibit 76) depicted 120 mm or more

between the knees and the knee bolster (/d., pgs. 32-33, Apx.

Pgs. 742-43); that the test utilized a dummy representing an

average (50th percentile) male (/d., pg. 34, Apx. pg. 744);

and that a properly designed knee bolster would make it

unnecessary for the lap belt to be fastened to avoid serious

injury as the necessary pelvic restraint could be supplied by

either a properly designed knee bolster or by the lap belt

(R. 185 (Tr., Day 2), pg. 154, Apx. pg. 684). Again, as

previously noted, the FMVSS do not regulate the positioning

* The Escort was redesigned beginning with model year

1991 with the 1992 Escort having the same basic design as the new

1991 Escort. See testimony of Mr. Syson, R. 185 (Tr., Day 2),

pg. 131, Apx. pg. 661.

of the knee bolster (and in fact do not even mention the knee

bolster).

The fourth and final alternative suggested was to have

stronger warnings and reminders directed to the front seat

passenger to encourage use of the lap belt. (The warnings

issue was significant because, although as noted above,

Standard 208 (49 C.F.R. § 571.208) contemplated that under

the option chosen by Ford, the restraint system would be safe

in frontal collisions without requiring any action by the

vehicle occupants, it in fact was not.) Kenneth Laughery,

Plaintiffs’ warnings expert, testified with regard to this matter

that he had published studies regarding people’s use of the

various seat belt systems and the perception of hazards

associated with the usage, or non-use, of the systems (R. 186

(Tr., Day 3), pg. 59, Apx. pg. 769); that according to a Ford

document (Plaintiffs’ Exhibit 257), a human factors group at

Ford in 1985 proposed a stronger warning for the sun visor to

encourage use of the lap belt but the proposal was rejected

(Id., pgs. 81-82, Apx. pgs. 791-92); that the warning system

in the subject motor vehicle was not adequate to warn and

instruct the front seat passenger occupants concerning

fastening the manual lap belt (/d., pg. 83, Apx. pg. 793); and

that he had developed proposed adequate warnings to warn

and remind passengers to fasten the lap belt for a vehicle with

a restraint system like in the Escort (/d., pgs. 101-04, Apx.

pgs. 811-14). In addition, Ford’s expert, Roger Maugh, was

forced to admit that prior to the manufacture of the 1992

Escort, Ford had published worldwide design requirements

for visor warning labels and that the labels for the 1992

Escort, which was known as a “CT-20”, did not comply with

those requirements. See R. 189 (Tr., Day 6), pgs. 89-91,

Apx. pgs. 1383-85. Finally, Dr. Lafferty testified that Mrs.

King would have survived the accident with very limited

injury if she had used the lap belt. See R. 187 (Tr., Day 4),

pg. 44, Apx. pg. 986.

The issue of visor warnings is significant in the

context of preemption. As previously noted, the FMVSS

regulations pertaining to warnings regulate only dashboard

lights and chimes or buzzers and are silent with regard to

visor warnings. Nevertheless, even though visor warnings

are not required by the regulations, Ford’s own documents

Show that not only are such warning labels needed for the

restraint system to be safe, but also that the warning labels

used in this case were inadequate. If the Savings clause

(quoted on page 1 herein) is not applicable to such a case in

which there is obviously no conflict with the FMVSS, when

would it be applicable?

ARGUMENT

The argument made by Ford on pages 3 and 4 of its

brief -- that the Plaintiffs allegedly generically attacked the

design choice made by Ford and, specifically, that Count II

reflected such a generic attack -- is not new. This argument

was fully presented to the District Court and the Court of

Appeals, but was rejected. With regard to the testimony

about Mrs. King being lulled into a false sense of security, it

Should again be noted that under the design choice made by

Ford, Mrs. King should, indeed, have been secure in this

frontal collision without fastening her lap belt, but due to the

design defects previously noted -- failure to utilize a load-

limiter and/or failure to move the shoulder belt anchor back

and/or failure to move the knee bolster Closer to the knees of

the front seat Passenger -- she was not secure without

fastening her lap belt. Thus, the testimony was consistent

with the federal regulations in this particular case and not in

conflict.

Further, the ruling of this Court in Geier that “no

airbag” claims are pre-empted by federal law is not new — as

this Court recognized in Geier (120 S. Ct. at 1917), “[aJll of

the Federal Circuit Courts that have considered the question

... have found pre-emption.” Indeed, the District Court in

the case at bar ruled, on the basis of those Circuit Court

decisions, that any claim by the Plaintiffs in this case that the

vehicle in question (a 1992 Ford Escort) was defective for

failure to have airbags, was preempted. See Memorandum

Opinion and Order (granting motion for partial summary

judgment), R. 113, Apx. pgs. 174-78, Appendix A la-6a. In

accordance with this ruling, as previously noted, the Court

instructed the jury that the option chosen by Ford for meeting

the requirements of Standard 208 was not to be a basis for

finding liability. See R. 167, Instruction No. 16, Apx. pg.

216, Appendix C at 15a. Nevertheless, the District Court

ultimately upheld the jury verdict on the Plaintiffs’ claims and

was affirmed by the Court of Appeals. The Court of Appeals

reviewed the preemption issue de novo in accordance with

GTE Mobilenet v. Johnson, 111 F. 3d 469, 475 (6th Cir.

1997). See King, 209 F. 3d at 891, Ford’s Appendix at A-21.

Further, the principle of conflict pre-emption on which

Geier is based was well established by this Court by 194]

when this Court decided Hines v. Davidowitz, 312 U.S. 52,

61 S. Ct. 399, 85 L. Ed. 581 (1941), which was cited by

Geier. As this Court stated in Geier (120 S. Ct. at 1921),

quoting from Hines:

This Court, when describing conflict pre-

emption, has spoken of preempting state law

that “under the circumstances of thfe]

10

Particular case . . . stands as an obstacle to the

accomplishment and execution of the full

purposes and objectives of Congress” --

whether that “obstacle” goes by the name of

“conflicting; contrary to; . . . repugnance;

difference; irreconcilability; inconsistency;

violation; curtailment; . . . interference,” or

the like. Hines vy. Davidowitz, 312 U.S. 52,

67, 61 S. Ct. 399, 85 L. Ed. 58] (1941). ...

[Emphasis added. ]

The Court of Appeals in this case fully recognized the

principle of conflict pre-emption as discussed in Hines and, in

fact, cited the case, but nevertheless found the principle not

applicable “under the circumstances of this particular case.”

The Court of Appeals expressly recognized the point of law

definitively established by Geier, but did not find it applicable

to this case. Specifically, the Court of Appeals stated (209 F.

3d at 891-92, Ford’s Appendix at A-22 through A-24):

The Secretary’s Standard 208,

promulgated pursuant to the Safety Act,

requires passenger cars manufactured after

September 1, 1989 but before September 1,

1993, like the Escort in this case, to comply

with one of three front-seat-occupant crash-

protection options: (1) a complete passive

restraint system; (2) a Passive system

(automatic seat belts or air bags) for frontal

crash protection, manual belts for lateral

crashes and rollovers, and a warning system;

or (3) manual front seat belts with a warning

system. See 49 C.F.R. § 571.208, S4.1.4-

S4.1.4.2.2. Ford used option 2 -- an

automatic shoulder belt and knee bolster to

11

protect against frontal collisions, a manual lap

belt to protect against lateral crashes and

rollovers, and a warning system.

Ford’s position is that implied conflict

preemption applies in this case. It argues that

“[bJecause federal policy [i.e. the Safety Act

and Standard 208] affirmatively required that

these three options be available to

manufacturers, a state rule which found civil

liability for using one of the equipment options

rather than another would be preempted.”

State tort law removing one option would

obviously be “an _ obstacle to_ the

accomplishment and execution of the full

purposes and objectives of Congress,” namely

the objective that manufacturers have flexibility

in choosing a restraint system. Hines v.

Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399,

85 L. Ed. 581 (1941). Ford contends that

plaintiffs’ suit would limit this flexibility, as

the company characterizes plaintiffs’ suit as

one claiming that two-point, automatic

seatbelts with manual lap belts are inherently

defective. See /rving v. Mazda Motor Corp.,

136 F. 3d 764, 768-69 (11th Cir. 1998)

(holding such a claim preempted).

We agree with plaintiffs, however, that Ford

has misconstrued their case. As plaintiffs

note:

In the case at bar . . . plaintiffs’

position was not that the design choice

made by defendants for protecting

12

against frontal collisions -- an

automatic shoulder belt and knee

bolster -- was inherently defective but

that the specific design was defective

due to failure to use load limiters

and/or change the location of the knee

bolster and/or change the location of

the belt anchor.

Such a claim is not preempted by the

Safety Act. The FMVSS provide only the

“minimum standard[s] for motor vehicle or

motor vehicle equipment performance.” 49

U.S.C. §_30102(a)(9). The Safety Act’s

savings clause, which states that compliance

with an FMVSS does not shield a

manufacturer from liability at common law,

contemplates that manufacturers may be held

liable for failure to exceed these minimum

Standards when their decisions were

unreasonable. This is the essence of plaintiffs’

claims. [Emphasis added. ]

Thus, the Court of Appeals in this case recognized the

precise point which this Court definitively established in Geier

(120 S. Ct. at 1925), but found it not to be applicable to this

case. The disagreement of the Court of Appeals with Ford’s

position was not with regard to the law but with regard to the

facts. Plaintiffs submit that it is apparent that if the Geier

case had been decided prior to the decision of the Court of

Appeals in this case and had been brought to the Court’s

attention, it would have been distinguished. Thus, there

would be no point in sending the case back to the Court of

Appeals for further review.

Further, as the Court of Appeals noted in this case

(209 F. 3d at 892-93, Ford’s Appendix at A-24 and A-25),

other federal courts have recognized the basis of distinction

relied on in this case. Indeed, the case of /rving v. Mazda

Motor Corporation, 136 F. 3d 764 (11th Cir. 1998), heavily

relied on by Ford in the Courts below, also recognized the

distinction. The Court stated (136 F. 3d at 768, fn. 4):

If a claim was asserted that two-point

systems (such as that installed in the Mazda

MX6) were not defective in general but that

the specific design selected by Mazda for its

two-point system was unreasonably dangerous,

pre-emption would be less clear.

Actually, the Plaintiffs submit that the case of

Freightliner Corporation v. Myrick, 514 U. S. 280 (1995), is

more significant in this case than Geier. In that case, this

Court held (514 U.S. at 289) that there was no conflict

preemption where there was “simply no federal standard for

a private party to comply with.” As previously noted, the

various design changes that Plaintiffs’ experts ee were

not covered by the regulations.

Ford’s brief suggests that the summary ruling of the

Court of Appeals in this case granting the motion to stay the

mandate should be given significant consideration in this case.

(Presumably, under Ford’s reasoning, a summary decision to

deny a stay of a mandate would be entitled to similar

consideration.) However, this Court has recognized that such

summary orders are often ambiguous. See, e.g., Lords

Landing Village Condominium Council of Unit Owners v.

Continental Insurance Company, 520 U.S. 893 (1997), in

which a summary order of the Court of Appeals declining to

recall its mandate was found to be ambiguous; and Stutson v.

14

United States, 516 U.S. 193 (1996), in which an order of the

Court of Appeals summarily affirming the district court was

found to be ambiguous. In the latter case, the Court stated

that in the case of summary dispositions by courts of appeals,

“it is rare that their basis for decision is entirely

unambiguous.” 516 U.S. at 196. In the case at bar, the fact

that the Plaintiffs are protected by a supersedeas bond

supplied at the time of the initial appeal plus the fact that there

is no provision for the Plaintiffs to post such a bond to protect

Ford if a stay were not granted may have been an important

consideration in granting the stay.

Finally, Ford utilizes a concurring opinion of Justice

Scalia in the case of Thomas v. American Home Products,

Inc., 519 U.S. 913, to suggest that the practice of GVRing is

routine. This is an over simplification. First, as this Court

Stated in Stutson, supra, 516 U.S. at 197:

Judicial efficiency and finality are

important values, and our GVR power should

not be exercised for “[mJere convenience,” cf.

Adams v. United States ex rel. McCann, 317

U. S. 269, 274, 63 S. Ct. 236, 239,87 L. Ed.

268 (1942).

Further, this Court has actually set a standard for deciding

whether GVR is appropriate. See Lawrence v. Chater, 516

U. S. 163, 167 (1996), in which the Court stated the

following:

Where intervening developments, or recent

developments that we have reason to believe

the court below did not fully consider, reveal

a reasonable probability that the decision

below rests upon a premise that the lower

15

court would reject if given the opportunity for

further consideration, and where it appears

that such a redetermination may determine the

ultimate outcome of the litigation, a GVR

order is, we beiieve, potentially appropriate.

{Emphasis added. ]

In a case such as the case at bar, where the lower courts have

demonstrated an understanding of the law as reflected by the

intervening case, these considerations call for denying

certiorari.

CONCLUSION

In conclusion, Ford has had all the days in court to

= which it is entitled. The Petition for Writ of Certiorari should

be denied.

Respectfully submitted,

/s/

Samuel E. Davies

Towne Square Place

230 Knox Street

Barbourville, KY 40906 *

(606) 546-5196

(606) 546-2441 (fax)

Attorney for Respondents

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LONDON DIVISION

[Dated April 30, 1997]

No. 95-117

CHARLES KING, as administrator of the

ESTATE OF PATTI ANN KING,

Plaintiff,

V.

FORD MOTOR COMPANY and

MAZDA MOTOR COMPANY,

Defendants.

ASSOCIATED INSURANCE

COMPANIES, INC..,

Intervening Plaintiff,

V.

FORD MOTOR COMPANY, MAZDA

MOTOR COMPANY, and CHARLES

KING, as administrator of the ESTATE

OF PATTI ANN KING,

Intervening Defendants.

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District Court Mem. Opinion and Order - 4/30/97

MEMORANDUM OPINION AND ORDER

This matter is before the court upon motion by the

defendant, Ford Motor Company, for partial summary

judgment (Record No. 57). The motion for partial summary

judgment concerns the narrow issue of whether the National

Traffic and Motor Vehicle Safety Act’ (“Safety Act”) and

safety standards promulgated under authority of the Safety Act

preempt a claim that an automobile is defective because it did

not contain a passenger-side airbag. This issue has been fully

briefed and is ripe for a decision on the pleadings. -

FACTUAL SUMMARY

On August 21, 1994, the plaintiff's decedent, Patty

Ann King, was a passenger in the right, front seat of a 1992

Ford Escort driven by her sister-in-law. Another passenger

was seated in the right, rear seat behind Ms. King. The

Escort in which Ms. King was riding collided with another

vehicle. Ms. King died as a result of injuries sustained from

the accident. The Escort’s driver and the other passenger

sustained minor injuries.

The front seat of the 1992 Ford Escort was equipped

with two-point, motorized, “passive” shoulder belts and

' 15 U.S.C.A. §§ 1381-1431 (West 1982). The Safety

Act was repealed, retitled, and recodified in 1994. Act of July 5,

1994, Pub. L. No. 103-272, 108 Stat. 943 (codified at 49

U.S.C.A. § § 30101-30169 (West 1997)). References in this order

are to the earlier Safety Act which was in effect when the 1992

Ford Escort was manufactured.

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District Court Mem. Opinion and Order - 4/30/97

manual, “active” lap belts. There was no passenger-side

airbag. At the time of the accident, Ms. King had not

fastened her manual lap belt; she was restrained only by the

Shoulder belt. The plaintiff asserts that the shoulder belt

inflicted the fatal injuries.

The plaintiff alleges, inter alia, that the 1992 Ford

Escort was defective and unreasonably dangerous. One aspect

of this alleged defective condition concerns the seatbelt system

and the availability of safe alternatives -- for example, a

passenger-side airbag. The defendant, Ford Motor Company,

has moved for partial summary judgment to the extent that the

Safety Act preempts plaintiff’s claim that the 1992 Escort was

defective because it did not have a passenger-side airbag.

ANALYSIS

Under authority of the Safety Act, the Secretary of

Transportation establishes Federal Motor Vehicle Safety

Standards (“FMVSS”). 15 U.S.C.A. § 1392(a) (West 1982):

Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.

1988), cert. denied, 494 U.S. 1065 (1990). The FMVSS,

Standard 208, for the 1992 Ford Escort allowed two options

to meet Federal safety standards for crash protection of the

front passenger: an airbag or seatbelt. 49 C.F.R. § 571.208,

S4.1.2.1 (1992). The defendant contends that liability, under

State tort law, for failure to provide an airbag to protect the

front passenger is preempted by the Safety Act.

Based in Article VI of the Constitution, the preemption

doctrine provides that the Federal constitution, laws, and

regulations take precedence over those of the States.

Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608, 2617

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District Court Mem. Opinion and Order - 4/30/97

(1992). Preemption is applied judiciously, and only when

indicated by “the clear and manifest intent of Congress.” /d.

Courts recognize either express or implied preemption. /d.

The Safety Act contains a preemption provision which

States, in pertinent part, as follows:

Whenever a Federal motor vehicle safety

standard established under this subchapter is in

effect, no State . . . shall have any authority

either to establish . . . with respect to any

motor vehicle or item of motor vehicle

equipment any safety standard applicable to the

same aspect of performance of such vehicle or

item of equipment which is not identical to the

Federal standard.

15 U.S.C.A. § 1392(d) (West 1992). The apparent

straightforward intent of this passage -- that state safety

standards yield to federal standards -- is complicated by a

subsequent “savings clause” which states, “Compliance with

any Federal motor vehicle safety standard issued under this

subchapter does not exempt any person from any liability

under common law.” 15 U.S.C.A. § 1397(k) (West 1992).

The issue before this court then, is, if the FMVSS

allows a manufacturer a choice of two options for crash

protection, is a state cause of action that is predicated, even in

part, on the manufacturer’s choice of one option over the

other, preempted by the express language of the statute or by

the implied intent of Congress.

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District Court Mem. Opinion and Order - 4/30/97

Numerous courts have held that the Safety Act does

not expressly preempt “no-airbag” claims. See, e.g.,

Courtney v. Mitsubishi Motors Corp., 926 F Supp. 223, 224

(D. Mass. 1996); Pokorny v. Ford Motor Co., 902 F.2d

1116, 1121 (3rd Cir.), cert. denied, 498 U.S. 853 (1990).

Wood v. General Motors Corp., 865 F.2d 395, 407 (1st Cir.

1988), cert. denied, 494 U.S. 1065 (1990). Thus, that

portion of the defendant’s argument fails.

Two recent cases before the Supreme Court addressed

preemption issues, especially implied preemption:

Freightliner Corp. v. Myrick, 115 S.Ct. 1483 (1995), and

Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608 (1992).

Implied preemption can be found when compliance with both

the federal and state requirements is impossible, or when the

State law is an obstacle to meeting federal objectives. Myrick,

115 S.Ct. at 1487. Even in light of the Supreme Court’s

recent articulations of preemption doctrine in Cipollone and

Myrick, courts have found that “no-airbag” claims like that of

the instant plaintiff are preempted. See, e.g., Montag by

Montag v. Honda Motor Co., 75 F.3d 1414, 1417 (10th Cir.),

cert. denied, 117 S.Ct. 61 (1996); Courtney v. Mitsubishi

Motors Corp., 926 F.Supp. 223, 226 (D. Mass. 1996);

Waters v. Ford Motor Co., 1996 WL-114791, at *4 (E.D. Pa.

Mar. 13, 1996). As these recent decisions confirm, the clear

weight of authority is that any of plaintiff's claims that depend

on failure to provide an airbag as evidence of a defective

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District Court Mem. Opinion and Order - 4/30/97

product are preempted by federal law.” Thus, the court will

grant the defendant’s motion.

Accordingly, IT IS ORDERED that the defendant’s

motion for partial summary judgment is GRANTED.

This the 30" day of April, 1997.

/s/

Jennifer B. Coffman, Judge

United States District Court

Eastern District of Kentucky

> However, this conclusion is not universal. To Montag,

Courtney, and Waters, compare Wilson v. Pleasant, 660 N.E.2d

327 (Ind. 1995) (finding that the savings clause explicitly preserves

the common law-based “no-airbag” claim, and going on to find no

implied preemption), and Kurt B. Chadwell, Comment, Automobile

Passive Restraint Claims Post-Cipollone: An End to the Federal

Preemption Defense, 46 Baylor L. Rev. 141 (1994) (reviewing the

history of airbag regulations and the legislative history of the Safety

Act, then concluding that common law airbag claims are not

preempted).

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APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

AT LONDON

[Filed April 14, 1995]

No. 95-117

CHARLES KING, AS

ADMINISTRATOR OF THE ESTATE

OF PATTI ANN KING

Plaintiff,

¥.

FORD MOTOR COMPANY and

MAZDA MOTOR CORPORATION

Defendants.

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COMPLAINT

Comes the Plaintiff and, for his claim for relief against

Defendants, states as follows:

JURISDICTIONAL ALLEGATIONS

a Jurisdiction herein is founded on diversity of

citizenship and amount.

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District Court Complaint - 4/11/95

y 5 That Plaintiff is the duly appointed

Administrator of the Estate of Patti Ann King, having been so

appointed on September 15, 1994, by Order of the Madison

District Court. A copy of the Order is attached hereto as

Exhibit A.

x 3 That the decedent, Patti Ann King, was at the

time of her death and was at all times relevant herein a citizen

and resident of the State of Kentucky.

4. That the Plaintiff, Charles King, as

Administrator of the estate of Patti Ann King, is now and was

at all times relevant herein a citizen and resident of the State

of Kentucky.

mF That Defendant Ford Motor Company is now

and was at all times relevant herein a corporation incorporated

under the laws of the State of Delaware, having its principal

place of business in the State of Michigan. That Defendant

Ford Motor Company has qualified to do business in the State

of Kentucky, and its resident agent for service of process is

C.T. Corporation System, Kentucky Home Life Building,

Louisville, Kentucky 40202.

6. That Defendant Mazda Motor Corporation is

now and was at all times relevant herein a corporation

incorporated under the laws of Japan, having its principal

place of business in Japan at 3-1 Shinchi, Fuchu-cho,

Aki-gun, Hiroshima 730-91, Japan. That Defendant Mazda

Motor Corporation has not qualified with the Secretary of

State of the Commonwealth of Kentucky to do business in the

Commonwealth of Kentucky.

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District Court Complaint - 4/11/95

7. That Defendant Mazda Motor Corporation is

Subject to service of process in this action pursuant to the

terms and provisions of the Hague Convention.

8. That this Court has personal jurisdiction over

each of the Defendants.

9. That the matter in controversy exceeds,

exclusive of interest and costs, the sum of Fifty Thousand

Dollars ($50,000.00).

SUBSTANTIVE ALLEGATIONS

10. That the Defendant Ford Motor Company, at

all material times, was engaged in the business of designing

or approving the design, manufacturing, assembling, testing,

inspecting, marketing and selling a 1992 Ford Escort, vehicle

identification number 3FAPP13J6NR103733 (herein referred

to as the “Escort”).

11. That the Defendant Mazda Motor Corporation,

at all material times, was engaged in the business of designing

or approving the design and testing of a 1992 Ford Escort,

vehicle identification number 3FAPP13J6NR 103733 (herein

referred to as the “Escort”).

12. That on August 21, 1994, in McKee, Jackson

County, Kentucky, while decedent Patti Ann King was a front

Seat passenger in the Escort, the Escort was involved in a

motor vehicle accident. That at the time and place aforesaid,

the Escort failed to reasonably and adequately protect the

decedent as a passenger, resulting in injuries to her which

caused her death on August 29, 1994.

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District Court Complaint - 4/11/95

13. That the front passenger seat of the Escort was

equipped with a seat belt assembly (herein referred to as the

“restraint system”) which consisted of an automatic shoulder

belt with a manual lap belt. That Patti Ann King died as a

result of injuries inflicted by the shoulder belt.

14. _—‘ That the front passenger seat was not properly

secured by its seat tracks, which failure substantially

contributed to Patti Ann King’s fatal injuries.

15. That as a result of the injuries to and death of

Patti Ann King the estate of Patti Ann King should recover of

the Defendants the following damages:

(a.) Medical and hospital expenses in

the sum of $87,384.91;

(b.) Pain and suffering of Patti Ann

King prior to death in the sum of

$1,000,000.00;

(c.) Destruction of Patti Ann King’s power

to earn money in the sum of $2,500,000.00;

and

(d.) | Funeral and burial expenses in the sum

of $5,461.00.

COUNT I

16. ‘Plaintiff realleges and incorporates the

allegations contained in paragraphs 10 through 15 above.

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District Court Complaint - 4/11/95

17. That the injuries to and the death of jecedent

Patti Ann King were a result of a defect in or the defective

condition of the Escort, which was unreasonably dangerous,

and of the failure to warn of the unreasonably dangerous

defect or condition as designed, manufactured and sold, and

therefore the Defendants, Ford Motor Company and Mazda

Manufacturing Corporation, should be held strictly liable.

COUNT II

18. Plaintiff realleges and incorporates the

allegations contained in paragraphs 10 through 15 above.

19. That at the time of design, manufacture and

sale of the Escort the Defendants knew or should have known

that the restraint system which automatically engaged the

shoulder belt, but required the front seat occupant to manually

attach the lap belt, was misleading and unreasonably

dangerous. Defendants’ failure to provide a restraint system

which was reasonably safe constitutes negligent conduct and

their failure to adequately instruct or warn the user of this

restraint system of the need to manually attach the lap belt

was negligent. In addition, the automatic shoulder belt

induces the user to forget to attach the manual lap belt or to

believe that the use of the manual lap belt is not necessary for

the safe operation of the vehicle. Defendants knew, or in the

exercise of reasonable care, should have known that front seat

occupants of the vehicle would be unaware of the manual lap

belt, be misled into believing that the manual lap belt was not

necessary for safe use, or be induced into forgetting to attach

the manual lap belt.

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District Court Complaint - 4/11/95

20. That the injuries to and death of decedent Patti

Ann King were the result of the aforesaid negligence of

Defendants Ford Motor Company and Mazda Motor

Corporation. -

~ COUNT II

21. Plaintiff realleges and incorporates the

allegations contained in paragraphs 10 through 15 above.

22. That the injuries to and the death of the

decedent Patti Ann King were the result of the breach by

Defendant Ford Motor Company of its implied warranties that

the Escort was fit for ordinary purposes for which

automobiles are used.

23. That the injuries to and the death of the

decedent Patti Ann King were the result of the breach by

Defendant Ford Motor Company of its express warranties

concerning the fitness and safety of the Escort.

WHEREFORE, Charies King, as Administrator of

the estate of Patti Ann King, demands Judgment against the

Defendants, Ford Motor Company and Mazda Motor

Corporation, for the following sums:

(a.) | Medical and hospital expenses

in the sum of $87,384.91;

(b.) Pain and suffering of Patti Ann

King prior to death in the sum of

$1,000,000.00;

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District Court Complaint - 4/11/95

(C) Destruction of Patti Ann King’s

power to earn money in the sum of

$2,500,000.00; and

(d.) | Funeral and burial expenses in

the sum of $5,461.00.

Total $3,592,845.91

WHEREFORE, the Plaintiff also demands TRIAL

BY JURY, interest, costs, and all other just and proper relief.

/s/

ATTORNEY FOR PLAINTIFF

SAMUEL E. DAVIES

P.O. BOX 10

BARBOURVILLE, KY 40906

TELEPHONE: (606) 546-5196

CARL G. CUNNAGIN

P.O. BOX 155

McKEE, KY 40447

TELEPHONE: (606) 287-7732

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APPENDIX C

JURY INSTRUCTIONS

INSTRUCTION NO. 13

In order to recover under her design defect claim, the

plaintiffs must establish two essential elements, as follows:

First, that when the 1992 Ford Escort left the

possession of the defendants, the design of the

automatic seat belt restraint system was

defective and unreasonably dangerous to the

consumer; AND

Second, that the unreasonably dangerous,

defective condition of the machine was a

substantial factor in causing the injury and

death of Patti King.

As the term is used in this instruction, a design is

“defective and unreasonably dangerous” if it creates such a

risk of accidental injury to a prospective user that an

ordinarily prudent company engaged in the manufacture of

similar products, being fully aware of the risk, would not

have put it on the market.

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Jury Instructions

INSTRUCTION NO. 14

The plaintiffs’ second claim is for failure to warn.

The plaintiffs claim that the defendants failed to use ordinary

care to provide adequate directions for use and warnings of

potential dangers associated with the restraint system in the

1992 Ford Escort.

In order for the plaintiffs to recover under this Claim,

the plaintiffs must prove the two elements, as follows:

First, that the defendants failed to use ordinary

care to provide adequate directions for use and

warnings of potential dangers associated with

the use, or reasonably foreseeable misuse, of

the restraint system; AND

Second, that the defendants’ failure to provide

adequate directions and warning was a

substantial factor. in Causing the injury and

death of Patti King.

INSTRUCTION NO. 16

Federal Motor Vehicle Safety Standard 208

specifically allowed manufacturers of 1992 model year

vehicles to select any one of three approved options for

restraint systems. As you have heard, the defendants chose

to design this vehicle with one of those options -- that is, a

restraint system that employed an automatic belt. The fact

that the defendants chose this particular option is not evidence

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Jury Instructions

sh that the vehicle was defectively designed, and you shall not

consider it as such.

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APPENDIX D

Federal Motor Vehicle Safety Standard

49 C.F.R. § 571.209

S 571.209 Standard No. 209; Seat belt assemblies.

S3. Definitions. .. .

“Load-limiter” means a seat belt assembly component or

feature that controls tension on the seat belt to modulate the

forces that are imparted to occupants restrained by the belt

assembly during a crash.

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