# Amicus Curiae Brief — Williamson v. Mazda Motor of America, Inc. (No. 08-1314)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

Supftewnea Coun, US
FILED

; AUG 5 - 2010

Mo. OB-1314 OFFICE OF THE Cie hx

In The

SUPREME COURT OF THE UNEPED STATES

«

Delbert WILLIAMSON, et al.,

OLTLOMOTS.

MAZDA MOTOR OF AMERICA, INCG., etal

Respondents.

On Petition fora Writ of Certioran to the Court of
Appeal of California, Fourth Appellate District,
Division ‘Three

BRIEF OF THE ATTORNEYS INFORMATION
KXCHANGE GROUP AS AMICUS CURTIAE
IN SUPPORT OF THE PETITIONERS

.

Larry Ik. Coben

Coben & Associates

710K. Vista Bonita Drive

Scottsdale, Arizona S525

(460) 515-4745

LCobentcobonlaw.com

Counsel for Amicus Curtae

Attorneys Information Exchange Group

Peal Porat the. Waste D0 @ 202-747 2400 @ bepalprinters com

1H, CI}

TABLE OF CONTENTS

TABLE OF AUTHORITIES 90.0000... a |
STATEMENT OF INTEREST 0.0.00... .. ae
SUMMARY OF THE ARGUMENT 000000000... 3
ARGUMENT —~_. —. ee eee ee. 10
A. Baékground ..... 07>. a re 0)
bb. Pederal Statutory Framework. ©..... 10

( Review of The Evolving Applreation of
Principles of Federal Preemption 12

Dy. Lower Court's Have Misapplied The
Supreme Court's Preemption

re 21
ly. The Court Should Reconsider Its

Conclusion of The Savings Clause . 22
What Did Congress Say in The Safety

| ng ORE Se a 26

Gi. NHTSA’s Regulatory Approach To Rear
Seat Belts and Executive Order

a | yAL)
CONCLUSION .....)......022..-.-2..2.... 33

i
TABLE OF AUTHORITIES
Page(s)
Cases

Bates v. Dow Aprosciences, LLC, 544 US. 481,
5S Ct. 1788, 161 Lhd. 2d 687 (2005)... 12, 17

breightliner Corp.v. Myrick, 514 US, 280, 115
S.Ct. 14838, 131 L.kd.2d 885 (1995) ..) 11, 18, 34

Geter vo American Honda Motor Co., Ine.,
5SYV4 US. &61, 10S Ct. 1918S, 146 Ld 2d

914 (2ZOOO) . on 6. eee eee eee passim

Haywood v. Drown, 129 S.Ct. 2108, 173 Lbed.2d
SIZU) CUD) wn ck cc hhc wo wee ee ee 22

Larsen v. General Motors Corporation, 897 Fo2d 495
(Sth Car. 19GB)... 2.0... ie eee 4

Medtronic, Inc. vo. Lohr, 518 US. 470, 116 S.Ct.

2240, 13h L.Ed.2d 700 (1996) ...2. 2. 13
Riegel vo. Medtronic, 552 US. 312, 128 S-Ct. 999,
169 L.Ed.2¢d 892 (2008)... ....23 12, 31

Sprietsma v. Mercury Marine, a Div. of Brunswick
Corp., 5387 US. 54, 123. S.Ct. 518, 154 Led. 2d
466 (ZODZ) ... 2.2 awe as oe eee 12, 1H, 24, 25

Wyeth v. Levine, --- USS. ---, 229 S.Ct. 1487, 178
| . v2, 38; 20, 2S

Statutes

15 U.S.C. § 1391 (2) (1966, 1988 & Supp. I

MT ol Se os 5 es ot ee ae _.. passim
Se 10
| a 0, ¢, 11, 26
In U.S.C. § 1892(d) (98K ed.) 20. 7

ee 61987) .......... ae 5, 6

SS ee 11, 15

meeemee © ees) ................... .. 26
49 U.S.C. § 30103(d) 2.22... PE oe og a 26

POMPEO, ww ee eee. 26
a 26-27
RE re YG

meee as, @ eosin) adh) ................. 26

iV

Federal Regulations

32 Fed. Reg. 2415 ......... ee Pe a ae 28
52 Fed. Reg. 22818 (June 16, 1987) ........... 30
54 Ped. Reg. 25275 (June 14, 1989)... . Rea
Cl Wee; Ga I gc oe eke ee eee 3]
68 Fed. Reg. 46546 (August 6, 2003) .......... 32
GS Fed. Reg. 46546 (December 4, 2002) .. 2... .. 32
69 Fed. Reg. 70904 (December &, 2004) | . Reeth
FMVSS 208 ...... eecat al Lier

Other Authorities

DOT 808 945, “Effectiveness of Lap/Shoulder Belts
in the Back Outboard Seating Positions’ 2.2. 32

myecutive Ordor 126132 ........ciccce a.

H.R. Rep. No. 1776, 89th Cong. 2d Sess. 24
RUE 6 sc 00 ea bebe oe OL ree a

Hearings Before the Committee on Interstate and
Foreign Commerce of the House of
Representatives, (Safety Act Hearing), 89th
Cony. 2d Sess. Part 2, 1249 (1966)... . . 6, 28

y

Hoening, Resolution of “Crashworthiness” Design
t !

Claims, 55 St. John's L. Rev. 633 (1981)... |. 4
Ralph Nader, Unsafe at Any Speed (1965) 00... 10

S. Rep. No. 1301, 89th Cong., 2d Sess. 12
SED We ib as oobi ar ko orale ea ke 5 ae ee ae

Safety Study—Performance of Lap/ Shoulder Belts in
167 Motor Vehicle Crashes, NTSB/SS-88/O02 . 29

Special Study, The Roles of General Services
Administration and Department of
Transportation in Motor Vehicle Safety
Standards, Report No. NPSB ISS 70 1 (dane 3.
ae et Set > cae eA Mee

STATEMENT OF INTEREST’

The Attorneys Information Exchange Group
(AIEG) ts an organization of over GOO attorneys who
practice civil ditigation throughout these Umited
States ALEG was founded in the mid-1970's by
attorneys who were then representing burn victims
who were motorists in cars and trucks that were
burning up oan collisions. Its founding members
dedicated themselves, and this organization, to the
creation of a private cooperative entity, which would
serve to educate and coordimate the acquisition of
technical information germane to the fair and honest
representation of Americans who have suffered serious
or catastrophic mjury as a result of defective designs
ino motor velucles. Over the years, ALEKG members
have represented the vietuems of such infamous
products as the Ford Pinto, General Motors cars and
pick-up trucks with poorly desizned fuel systems (e.g.
side saddle fuel tanks), Audt and Toyota vehicles with
sudden, uncontrollable acceleration, and thousands of
Ford Explorers with Firestone tires that have left
untold numbers of Americans maimed. Members of
AIEBG on a daily basis are involved ino pursuing
products labihty clams typically stemming from the
faulty design or manufacture of motor vehicles. Our
chents are those Americans who have suflfered

This Amicus Curiae brief is filed pursuant to Rute 37 and
consent to file it has been granted by written consent of the
parties Further, this Brief was not authored nor was any
monetary contribution to the preparation or submission of this
Brief provided by any party to this action

catastrophic injury or the families of deceased loved
ones. In the prosecution of these common law claims,
we are called upon to study and address the
relationship between vehicular design, injury
causation and any relevaney of compliance with
federal standards promulgated pursuant to the Safety
Act. Most often, tt has been found that there ts very
little relationship between a vehicle's compliance torth
these standards and the safety performance of these
products in real world accidents. ALEG' s members
have a vital interest in the effect of the decision of the
Cahforma Court of Appeals (and other similarly
decided cases) may have on its members and the
chents they represent because motor vehicle
manufacturers continue to produce vehicles which ouly
meet the bare minimum federal safety standards,
thereby resulting in the sale of vehicles which may not
be reasonably safe. The decision reached by the Court
of Appeals potentially allows product manufacturers to
argue that comphance with any federal vehicle
regulation that allows for alternative methods to
satisfy these minimum regulations mnmunizes them
from common law responsibility to build and sell aon
defective/safe vehicles. Likewise, the decision of the
Court of Appeals sat odds with the balance intended
by the United States Constitution, the United States
Congress and the Executive Branch (in the issuance of
Executive Order 12612) which has a continuime,
interest in limiting Federal Agenctes from imposing
their wall upon States without a clear Congressional
statement of the importance of taking such action and
then only after careful study and consultation with

~~

State representatives to minimize this excursion into
the tume-honored rote of the Common Law,

SUMMARY OF THE ARGUMENT

In 1966, the United States Congress pissed the
National Traffie Safety Act (referenced as the Safety
Act), on an effort to establish regulations for vehicle
and vehicle equipment performance which would
provide basic and minimum safety of vehicles sold in
thiscountry. Simultaneously, Congress authorized the
establishment of a government agency to develop and
promulgate these regulations, which became Known as
the National Highway ‘Traffic Safety Administration
(NHTSA). The legislators who passed the Safety Actin
1966 were quite aware of then existing regulations and
standards which many of the states had promulgated,
and which required automobile manufacturers to only
sell cars in these respective states if these vehicles
were equipped with certain devices, such as front seat
seatbelts,

Congress was asked by some facets of the motor
vehicle industry and the safety community to pass
legislation which would have the cftect of elyninating
diverse state regulations, so that only one
governmental agency would contro! the development
and promulgation of standards which velnele
compamies would be obliged to meet in order to market
their products in this country. These standards were
defined by Congress as “minimum standard[s] for

motor vehicle performance’ As the National
Transportation Safety Board reported in 1970":

The imposition of Federal Motor Vehicle
Satety Standards for certain
characteristics of vehicle safety insures
that a particular level of safety wall be
universally apphed, butit does not insure
thatthe highest level of safety will be the
standard, nor does it imsure that the
highest practical level of safety wall be
avallable to purchasers in the market.

As a result of Congress’ awareness of personal
myjury litigation and the appleation of the common liw
to question motor vehicle design safety ") as well as
the promulgation of some non-uniform state safety
standards, the Safety Act addressed both issues. The
Satety Act and its legaslative history establish that
Congress did not want conflicting safety regulations
promulgated by state, local and federal regulators
This was made clear by the inclusion of the

“1h USC. 8 1891 (2) (1966, 1958 & Supp HE 1991)
* Special Study, The Roles of General Service:
Admimstration and Department of Transportation in Motor
Vehicle Safety Standards, Report No NTSH HSS 70 1 Clune 3
1970), (see page dd)

‘ ee as -

larrsent Caene ral Motors ¢ orporati Ue I ~d 49 rosth
Cir, 1968). See peneraliy, Hoenmy, Resolution of
“Crashworthiness’ lesien Clarms, 55 St dohn's L Rev. G35 (1981)

preemption clause in 15 USC. & 13y2(d). Likewise,
the Conpress did not want the federal agency
interfering with the citrzenries’ right to faa
compensation under the common law, which was made
erystal clear by enacting the Savings Clause im 15
USC & W390) Phe federal regulations do not
exempl any person from any habilty under the
common Law,

Whatas evident upon a review of the legislative
history of the Safety Actas that the Savings Clause as
much more than amere expression of Congress’ belief
that “some tort clamns remam viable despite the
promulpation of vehicle reyulations. The legislative
history of this provision establishes that comphance
with a motor vehicle safety standard should not even
be permitted as a defense in product lability suits
agaist an automobile manufacturer, The Senate
Report noted that:

[t}he Pederal minimum safety standards
necd not be interpreted as restricting
State common law standards of care
Comphance with such standards would
thas not necessarily shield any person
from product hability at common law. 5
Kep. No 1401, 89th Conp., Zd Sess. 12
(1G)

The House of Representatives considered the
Senates draft) degashation and ansisted upon the
language of the enacted “Savings Clause’, providing

Congress express intent to preserve all comamon law

(,
Claims ‘The House Committee Report provided:

Common law hability - §108(c) of the
reported bill [15 USC. &1397(c)]
provides that) comphance with any
hederal motor vehicles safety standard
docs not exempt a person from any
habibty under comiunon law. It os
intended, and this subsection specifically
establishes, that comphance with safety
standards as not to be a defense or
otherwise to affeet the rights of parties
under common law particularly those
relating to warranty, contract, and tort
habalty. HR. Rep. Noo 1776, 69th Cony.
2d Sess. 24 (1966)

Conpressional sentiment explaining why the House of
Representatives imserted &§1S97(c) was explained by
Conpressman ‘Tim ‘Priplett, when he stated:

We need a traffic safety ayency and we
need to research our problem from end to
end, but we don't need to relieve the
manufacturer of his natural
responsibility for the performance of his
product. Heannps Before the Committee
on Interstate and Foreign Commerce of
the House of Representatives, (Safety

4

Act Hearing’), 49th Cong. 2d Sess. Part 2,
1249 (1966).

Unbke the language used by Congress im other
legaslation, here Conpress expressed its intent Gn
section 149 2(d)) to preempt only the conduct of states
and political subdivisions:

Whenever a Federal motor vehicle safety
standard established under this sub-
chapter is in effect, no State or political
cubdivisionw of a 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
appheable to the same aspect of
performanee of such vehicle or item of
equipment which is not identical to the
Kederal standard. if U.S.C. & 1392(d)
(19988 ed).

In this instance, aoas not just that Congress’
Statement of preemption does not mention Common
law, but rather that Congress specifically identified
the state and poltical subdivision actavity which at
mitended to preempt, ce., the establishment by a State
or political subdivision of standards with respect to
vehicles or equipment that are not identical to the
federal standard. And, Congress also expressed tts
mitent to preserve all aspects of the common law by
Stating that comphanee with federal safety standards

a

docs not exempt any person from any liability under
common Law.

It was, we respectfully submit, a mistake of honest
but fallitte proportions when this Court concluded in
Cewrthat the Savings Clause was simply promulgated
to allow for some common law claims shown not to be
me conflict wath regulations issued by the NHTSA.
Congress antended by its language to establish
minimum standards which all compamies are required
toaeect before they can market their products in the
United States. On the other hand, since Congress
expected the federal agency to promulgate only
mindndm standards, ao likewise preserved for all
consumers the right to fair compensation vis-a-vis the
jury system, and at expected that the “threat” of
common law hability would spur manufacturers to do
much more, or suffer lability for inyury caused, then
simply mecting these standards.

When Congress passed the Safety Act it did not
establish any sort of administrative remedy for
Ameneans aojured by defectively designed and
manufactured products, because at expected that
common law remedies would address this harm. Over
the past thirty years, the motor vehicle federal
ctandards have, with few exceptions, not changed. A
prime example of the stagnant nature of these
standards is FMVSS 208 and what has been the course
of that regulation regarding the type of seat belt
equipment that may be installed in the second or third
row of passenger vehicles. Suffice it to state, at the
outset, that the NHTSA has never adopted a

7

regulation reyceting the safety efficacy of lap and
shoulder belts in the rear seats of passenger vehicles
In fact, the opposite is the history of how NIPTSA has
viewed the safety value to be added by installing Type
2 dap and shoulder belt) rather than Type 1 (ap belts)
inthe rear seats. tas, therefore, no wonder that the
United States in its Amicus Brief has informed the
Supreme Court that there is no grounds for finding
pniphed preemption in the mstant case.

We ask the Court to establish for all litigants the
clear proposition that because Congress expressly
preserved all common law remedies in promulgating
the Safety Act, at must follow that there is no statutory
authority to apply impled-conflict preemption here.
And, therefore, courts should not be given license to
impose therr will upon injured consumers and preempt
these clauns, despite a manufacturer's satisfaction of
the minnnum safety regulations.

There is nothing unique about a federal minimum
safety standard providing manufacturers with
alternative means to mect a very basic level of crash
safety, and allowing injured victims — of
non-crashworthy vehicles an opportunity to prove to
yunes that them anjuries are attributable to a
manufacturer's failure to go beyond the bear minimum
in safety design. Certainly following this approach
does not evidence nor facially establish a need for
mipled-conflict preemption. And, in faet, such
lawsuits can only serve to promote tmprovements in
design protection. In the event, however, that the
Court Should decide to analyze the issue here pursuant

10

toconflict-impled-precmption principles, we submat.as
has the United States in its Amicus Brief, that there rs
no yastification to find impled preemption.

ARGUMENT

A. Background

Over forty years apo, the publication of Ralph
Nader's Unsafe at Any Speed (1965) helped spur two
mayor developments in the law. First, it prompted
attorneys and the courts to pive increased attention
and recognition to what was then a relatively recent
engincermyg development--the design of vehicles to be
crashworthy. Second, it prompted Congress to pive
increased attention to the need for federal motor
vehicle safety legislation and, ultimately, the passage
of the Safety Act of L9GG. In the intervening years, the
appheation of the common law to the field) of
automotive safety has allowed actions for the deaths
and angurnies that the motor vehicle industry knew
would result from their longstanding refusal to install
safety device,

B. kederal Statutory Framework

Conpress passed the National Traffic Safety Act in
1966 to reduce motor vehicle mjunes and deaths. See
S. Rep. No. 89-1301, 89th Cong., 2d Sess., 1-2 (1966).
To this end, Congress empowered the NHTSA to
prescribe “motor vehicle safety standards.” 15 US.
& 1592(a). The Act defined “safety standards" as

“mintmoum standards] for motor vehicle performance

or motor vehicle equipment performance . " 15
USC. § 189102) [Emphasis added], The Safety Act
contains a preemption section providing thatonce a
standard is adopted, neither a State nor Pohtical
Subdivision may issue a Standard that is not identical
to a federal safety standard applicable to the same
aspect of performance. 15 US. C.§ 1392(d). Further,
the Safety Act includes a Savings Clause which
lepaslates that “[clomplance with any federal motor
vehicle safety standard issued under this subchapter
does not exempt any person from any lability under
common law.” 15 USC. § 1397(k)

More than 30 years after the passage of the Safety
Act, this Honorable Court was called upon to deeide, in
relatively short succession, two cases that analyzed
Congressional and Federal Agency preemptive intent
in twe common law clams, with very different
regulatory history. freightliner Corp. oo Myrick, 514
US. 280, 115 S.Ct. 1488, 131 L.Ed. 2d 385 (1995) and
Geter v. American Honda Motor Co., Ine., 520.05. 861,
870, 120 S.Ct. 1918, 1920, 146 L.Ed.2d 914 (2000).
This precedent has spawned, in the past decade,
literally hundreds of lower court decisions and several
subsequent decisions of this Court as at has been called
upon to decide the preemptive effect of other federal
lepastation and regulations appled to pleasure boat

LZ

propellers’, medical devices,” over the counter

medications’, pesticides” | ete.

’

» Review of The Evolving Application of
Principles of Federal Preemption.

This Honorable Court's construction of federal
legaslation, federal reyulations and common law causes
of achon and the application of ordinary principles of
federal preemption has, with all due respect, been
somewhat less than precise, Perhaps the evolution of
the Court's preemption methodology is the product of
the variability of the statutes and regulations that at
has been called upon to study. lt as difficult not te
notice the evolving sentiment of the Court's Majority
in several pertinent decisions.

* Sprietamau Mercury Marine, a Div. of Brunsiwtek ( loess
O47 US. SE, 125 5 Ct 518, 154 Led 2d 466 (2002) (propeller
guard issue)

* Reegel vo. Medtronic, 552 US 312. 128 S.Ct 999. 169
Ld 2d so (2008) (FDA regulations preempted tort cloum for
neghpent marketing of medical device approved by the Agency

Wyeth uv. hevine, US ,1295-Ct. 1187, 173 Lhd 2d
Sf) (2009) (failure to warn cha was not preempted by the BDA
regulation /standards). Reeped supra

* Bates vo Dow Aproserences, LLG, dALULS 431, 1255 Cr
1788, 1Ob LL kd 2d GS7 (2005)

13
Myrick, :

Absent an appheable standard, there is no
occasion under the apphlieable statutory
scheme to consider federal preemption of this
common law claym.
Because no federal standard exists, we
need not reach respondents’ argument
that the term ‘standard’... pre-empts
only state statues and repulations, but
not common law. We also need not
address respondents’ claim that the
suving Clause 2. . does not permit a
manufacturer to use a federalsafety
standard to immunize itself from state
common-law lability. STA US. 2380, 28a,
na

Because the States are independent soveremns
in our federal system, the Court noted that if
has long presumed that Congress does not
cavaherly preempt state-law causes of action.
As a result, any understanding of the scope of
aprecmmption statute must rest primarily ona
fair understanding of congressional purpose.

" ‘ ‘
Phe dudgment of the Court was Unanimous in

Myrick decided in 199OS

" Medtronic, Inc v. Lokr, 518 US. 470, 1168S Ce. 2240
Mob kd Yd FOU CLG)

14

Congress’ intent, of course, primarily ts
discerned from the Language ofthe preemption
statute and the ‘statutory framework
surrounding it... Also relevant, however, 1s
the ‘structure and purpose of the statute as a
whole, oo... as revealed not only in the text,
but through the reviewing court's reasoned
understanding of the way in which Congress
intended the statute and its surrounding
regulatory scheme to affeet | business,
consumers, and the law. 518 U.S. at 485

ee i
Creer, '

The saving clause assumes that there are
some significant number of common-law
liability cases to save. And a reading of the
express pre-emption provision that excludes
common-law tort actions gives actual meanme
to the saving clause's literal language, while
leaving adequate room for state tort law to
operate-for example, where federal law creates
only a floor, ne, a minimum safety standard

~The languayve of the pre-emption provision
permits a narrow reading that) excludes
common-law actions... . [Emphasis added |

Gh es ss oD ‘ . ' .
POLLS at kos 0S Ce at LOIS

i

_.. We now conclude that the saving clause
(like the express pre-emption provision) docs
not bar the ordinary working of conthet
pre-emption principles.

Nothing ip the language of the saving clause
suggests an antent to save state-law tort
actions that conflict with federal reyulations
The words [clompliance’ and ‘docs not exempt,
IS USC. 8 1897(K) (1988 ed), sound as if they
simply bara special kind of defense, namely, a
defense that) comphance with a tederal
standard automatically exempts a defendant
from state haw, whether the Pederal
Government meant that standard to be an
absolute requirement or only aq minimum one,
—. leas difficult to understand why Congress
would have asisted on a compliance with
federal) regulation precondition to the
provision's apphicabiblty had it wished the Act

to‘save allstate- law tort actions, regardless of
their potential threat to the objectives of

federal safety standards promulgated under
that Act. S29 US. at 860.

‘ > py
Sprvels ma,

Spreisma, supra, S87 US. at 64, LSS Ceo at

joating Gerer} (Unanimous decision)

7 “tt ’

It

_.. [The express pre-emption clause in § 10
apples to ‘a [state or local] law) or
regulation... .. We think that this language
Is most naturally read as not encompassing
common-law claims for (wo reasons. First,
the article ‘a’ before ‘law or regulation
mmiples a discreteness- whichis embodied im
statutes and regulations that ts not present
in the common law. Second, because ‘a
word is known by the company it keeps’,
the terms ‘law and ‘regulation’ used
together in the pre-emption clause indicate
that Congress pre-empted only positive
enactments. If law were read broadly so as
torclude the common law, tt might also be
interpreted to include regulations, which
would render the express reference to
‘regulation ino the pre-emption clause
superfluous

The Aet's saving clause buttresses this
conclusion... ito states that ‘Lejompliance
with this chapter or standards, regulations,
or orders prescribed under this chapter does
not relieve ao person from trabilitw at
common lLiw or under State law.

Bates!

—. We consider whether petitroners’ claims
are pre-empted by § 186v(b) 0. 0 Such State
shall not impose or continue in effect any
requirements for labeling or packaging in
addition to or different from those required
under this subchapter.

The prohibitions inp §bo6v(b) apply only to
‘requirements. An occurrence that merely
motivates an optional decision does not quality
asa requirement. The Court of Appeals was
therefore quite wrong when it assumed that
any event, such as a jury verdict, that might
induce’ a pesticide manufacturer to change its
labelshould be viewed as a requirement .

That §136v(b) may preempt judge made rules,
as well as statutes and regulations. says
nothing about the scope of that pre-emption

Rates that require manufacturers to design
reasonably safe products, to use due care in
conducting appropriate testing of their
products, to market) products tree of
manufacturing defects, and to honor their
express Warranties or other contractual

= Bates tg th id Agrescte ices ce4: one | l S 131. 4345-44
1225S .Cr. 1788, 161 1. Ed 2d 687 (2005)

Is

commiuments plunly do not) quality as
requirements for labelbng or packaging. None
of these common-law rules requires that
manufacturers labelor package their products
moanv particular wav. Thus. petitioners’
Claums for detecttwe design, defective
manufacture, neghygent testing, and breach of
express Warranty are not pre-empted

Wyeth ti

Employing principles of imphed preemption via the
regulatory scheme of the FDA. the Court observed

Wyeth contends that the FFDCA establishes
both a Moor and a ceiling for drug regulation
Once the FDA has approved a drug's libel, a
state-law verdict may not deem the label
madequate, regardless of Whether there is any
evidence that the FDA has considered the
stronger warning at issue) The most glaring
problem with this argument as that all
evidence of Congress’ purposes is to the
contrary. 2. 0 Congress did not provide a
federal remedy for consumers harmed by
unsafe or ineffective drugs in the [93S statute
or in any subsequent amendment. Evidently.

* Wreth. supra los 29S Ce at 120%

i

(ode termaned= that) wadely available state
hight: ofaetion provided appropriate relief for
injured = ocomsumers It may also have
recognized that) state-law remedies further
Consumer protection by miotivatiny
manufacturers. to produce safe and effective
drags and te pive adequate warnings. . PAL
A. at FT BCU.

loo Conecurmnagy Oponion Mer Justice Phomas

stated

Pohave become inercasunge tly} reluctan|t} te
expand federal statutes beyond thear terms
(hrouweh doctrines of ampled prc-emplion
i295. Ot att

Vhe Court’: decision om Gretrer to upply
oupooos and objectives) pre caption based on
apeney comments, regulatory hustory, and
apfeney litigating posutiens was especially
flawed piven that at conflicted wath the plain
statutory text of the saving clause within the
Safety Act. which expheithy proscrved state
common-law actions by providing — that
J jommphoanee with any Pederal motor vehicle
cafety standard assucd under thas subehapter
does notexcmpt any person from any hability
Hider common law feitations omatted). Tn
addition, the Courts rehanee on ats divined
purpooe of the federal law -to pradually phase

20)

bi at max of passive restramt systema, in order
tounvalidate a State's imposition of a greater
calety standard was contrary to the more
voneral express statutory goal of the Safety
Act to reduce traffic accidents and deaths and
injuries to persons resulting from traffie
acedents This Court has repeatedly
toted that when statutory Language i plan,
Houst be enforced according to ats terms
The textan Gerer directly addressed the precise
question at issue before the Court, so that
should have been ‘the ond of the matter: for
the court, as well as the agveney, must pive
effecttothe unambiyugusly expressed intent of
Congress) feitation oautted|, Wath text that
allowed state acthons ike the one at msue om
Giese, the Court had no authority to comb
through apeney commentanes to find a basis
for an alternative conelusion, 129 US. at

—
244-120.
} ‘2 5 oe dD

The Dhesentiagy Opinion an Wyeth observed that the
federal apeney es view of the scope of ite statutory authority and
ryulatory appbeatvon aoa valuable aidieator of the seope of
biaapedae dq preemption Keflectiny upon the decision wna Geren, the
Wyeth Diet etited

ot woathes teapedany tha etataate savenpy Clause and
pobwothetagmdiag the fact that Conpre: pave thie
feerctary cuthorty te set ouly “manwnum’ safety
tandoad= we held Gaener’s state torts uit pre-empted

[Where bred Pieavaly onthe view of the Seenetanryol

Transportation eapresced an an anaces brick that!
Stomdard 20s embodies the Secretary's poli )
yuo recut Chaat siafety would be 1 bn promoted il

a

oe

Db. lower Court's Have Misapplied The Supreme
Court's Preemption Decisions

The Brief in support of the Petition for
Cortiorari filed by the United States aptly points out
that many courts, dike the one below, have
misappled the Gerer rationale to a host of common
law claames that do not warrant dismissal based on
federal preemption

Manufaeturcrs always have the option’ of
cxeeeding @ minimum safety standard
when NHPSA has decided not to
mandate a more stringent alternative
because of considerations of cost) or
fr asability, as NHPSA did in this case,
and gndeed, offen does in considernny
ropulatory alternatives tut oaf such an
option) alone were enough to tripper
federal preemption under Geter, the
Safety Act's savings clause would be
vresatly undermined Gaever does not
mandate that result, beeause = at
determined that under the Safety Aet,

jpanuboetaurces laStalked allernatioce protection
femsoan thear fleets rather than one parte ular
lonmaunevery car. (quoting Bred for United States
Amicus Carnie, O'V. 1999, No 9s-15T1 po 2)
fi the an tant case, the Secretary of Tran portation has written
thatthe Wiallamson's lawsuit does mot confliet with the relevant

repulation

common law tort actions may proceed
unless they conflict with a FMVSS, and
here there as ono conthet US
Government Amicus Brief, ZO1lO WH,
1655014 *15

i. The Court Should Reconsider lis Conclusion
of The Savings Clause

Before we analyze the appleation of inplied-
confliet preemption, we ask that the Court
reconsider the precise languape Congress uscd when
ioncladed a state/political sub-division s standards
preemption clause” and a state common jaw
“savings clause.” Tt as, we respectfully submit,
unfortunate that the sweepmge approach to
preemption based on perceived congressional
purpose an Geter has ded to an unconstitutional!
invalidation of state common laws. Flaywood ov
Drown, 1295 Ct. 2108, 21385, 175 1. kd 2d 920 (2009)
(Dissent by Thomas, do and jorned by the Chief
Justice and dustices Alito and Sealy)

In Geer, [629 U.S. at 871, 1208. Ct. at 1920],
the Majority explamed why at studied implied
preemption, stating:

the saving clause reflects a
congressional determination that
occasional nonuniformaty is a small price
to pay for a system in which puries not
only \ereate, but also enforce, safety
standards, whale samultanmeously
proveeding Necessary COoblpensation to
victims ‘That poley by itself disfavor:

°
.~
—

preemption at least some of the time
Mat we can fiad nothing many natural
reading of the two provisions that would
favor one set of poles over the other
where a jurvamposed safety standard
actually conflicts with a federal safety
ctandard,

We do not claim that Congress lacks
the constitutional power tovortte a statute
that mandates such a complex type of
state/federal relationship Cl. post, at
1935, mo WG. Pat there ts no reason to
belive Congress has done so here.

[ianpahsis added

The predicate emploved by the Geter Court to
reyect the conclusion that Congress intended to
preserve adf common law actions, even af seme might
conflict with a NEPSA repulation, was capsalized by
this query. “[wihy, an any event, would Congress not
have wanted ordinary pre-emption principles to apply
where an aetual conflict with a federal objective is at
stake?” dd But, wath all due respeet, that query
should not have been raised piven Congress’ clear
statements. And even more perplexing was the fact
that after raring this inquiry, the Court did not read
the Congressional Reeord for an aaswer, but instead at
discerned the answer based upon general principles of
federalism. Why make that inquiry when Congress
made a clear distinction between state and political
standards atone endofthe spectrum and common law
Claams at (he other? The language chosen by Congres:

2A

in the Safety Aet was very sumolar to the statutory
scheme studied in Spreetsma, supra, 537 US. at 62-64

The saviany clause as also relevant for an
mdependent reason The contrast
between its woneral refercace to lability
ateommon law and the more speciic and
detatled deseription oof what as
preempted by & 10) including the
exeeption for state regulations
addressing Cumiquely hazardous
conditions’, andicates that §& TO) was
dratted to preempt performance
standards and equipment requirements
Imposed by statute or regulation.

Gur interpretation of the statute's
language does not produce anomalous
results. Tt would have been pertectly
rational for Congress mot to pre-empe
common-law clams, Which anhke most
administrative and levoslative
revulations-necessarily perform an
nniportant remedial role an compensating
acerdent | victims — Dicheed,
compensation os the manifest object: of
thi: SAV DEAS! clause, which foo tuses hot on
state authority to regulate, but) on
preserving ‘hability of common law or
under State law) Tn context, this phrase
surely orefers to private damages

remedies

>,

oo

’

These observations in Sprietsma harken back to
the view expressed in the Dissenting Opinion in Gerer:

lhoas perfectly clear, however, that the
term ‘safety standard’ as used in these
two sections refers to an objective rile
preseribed by il legnslature or an
administrative ageney and does not
encompass case specific decisions by
judges and jurtes that resolve
common-law elas When the
preemption provision refers to a safety
standard estabhshed by a ‘State or
political subdivision ofa State, therefore,
ios most naturally read to convey a
Stlar meaning. Pn addition, when the
Iwo sections are read together, they
provide compelling evidence ofan mtent
to distinguish between legislative and
adpiunistrative rulemaking, on the one
hand, and common-law lability, on the
other. ‘Chis distinction was certamly a
rationalone for Congress to draw in the
Safety Act piven that) common-law
habilitveuntikhe most lepushative or
administrative rulemaking necessarily
performs an important remedial role in
compensating accident vietims (/
Silkiwwood vo Kerr MeGee Corp... 2 O29
US. at 896

See also Wyeth vo. Levin, supra, 129 St. at W214
(Concurmnag Opmon of Mr. dustice Thomas)

‘3(,

What Did Congress Say in The Satety Act?
The statutory provision labeled “Preemption”
states: (MYLES. § SOLO8C |:

Whenevera Federal motor vehicle satety
standard established under this
subchapter is ain effeet, no State or
pohtticalsubdierston ofa State shallhave
vny authority either to establish, or to
continue im effect, with respect to any
motor vehicle or item of motor vehicle
equipment{,} any safety standard
appheable to the same aspect of
performance of such velnele or item of
equipment whieh as not identieal to the
Federal standard. (Previously found at b5
USC. § bead).

The statutory provision reparding “Warrants
Obligations and additional legal rights and remedtes |
states [HOTELS IO. § SOOKE]

Sections SOLE Ab) | Proeemption}, GOELS
BOPP T, SOT6GOD and 80167 (a) and (bd of
this tithe do aot establish or affect a
warranty obligation ander a law of the
Lmted States ora State. A remedy under
those Sectious . of thas: tithe as an
addition te other rights and remedies
under other lLiws of a State
{Manphasis added |

Minally. Congress provided in Seetron GUT LT e) that

zi
Common law lability. Compliance with
uw omotor vehicle safety standard
presembed under this chapter does not
cvemptaperson from lability at common
law. [Eimphasis added |

Read together, these statutes prove that the
preemption section was rot camed at alterme any
aspect of the American consumers states rights
because (Da manufacturer remains hable for breach
of warranties and (2) comphance wath theses
standards. issued by NIPPSA, does not exempt a
manufacturer from lability at common law

In Geer, the Court posited that while Congress
Can ereate a statutory scheme that eliminates the
appheoation of ordinary preempton principles, why
would they do so? ‘The answer ts found here

We necd a trative satety agency and we
need to research our problem fromrend to
end, but ive don ‘t need {wo relieve the
manufacturer of his natural
responsibility for Che performance of his
product.

You may think that the manufacturer is
afraid of Government regulations buat the
ery you are hearing may be “Briar box,
plense don't throw mean the brica patel
Itoothe opowernment assumes the
responsibility of safety design in our
velneles. the manufacturers wall youn
flopether for another GO-vear snoos

_

238
under the verl of Government sanction
and in thousands of courtrooms across
the Nation wronged individuals wall
encounter the stone wallbot Our product
meets the Government standards’, and
an already compounded problem will be
recompounded ""

The decision in Gerer to not follow the hteral words
of the Safetw Act has led hundreds of courts to simply
ignore what Congress imtended We, therefore,
respectfully submiut, that its tume to address this issue
and rule that Congress expressly saved all common
law claims despite the promulgation and compliance
with any federal motor vebicle satety standard

Gi. NHTSA’s Regulatory Approach Lo Rear Seat
Belts and Executive Order 12612

The 1968 Rule FMVSS 20S first took ettect im
Koos) ‘Then, and through boo this regulation
provided for compliince by the installation of lap belts
or lap/shoulder belts at desipmated seating position
bevond the first row 32 Fed. Reg. 2415. This
regulation contamed no explanation or statement ot
poltey with respeet to the decision to list lap andor kup
shoulder belts as the restraimt systems of chotee in
rear seating positions = fd

an an brig: Bbetore the Committee on [naterstate and
bore rt ON merce oh Clve tla t* uit hoprescnt fives CSatlets Vel

Hearing’), Sth Cong 2adsS Part 2. 249 (190)

eS |

i. The 1982 Petitton

In Os’. NIPPSA was petitioned to chiinge PMVSS
20S Co require only lap/shoulder belts mn the rear secats
of passenger cars. After the NHTSA studied this
petition, itt decided Chat because most Americans were
not buckhng up, there was no ‘cost-benetie’
necessitating a change to FMVSS 20S

2, 1981 Amendments to PMVSS 208

In LOS4, NEPESA amended FMVSS 2US to require
that manufacturers advise consumers in the Owners
Manual that > rear seat) bap/shoulder belts were
avatiable for retrofitting. and to specify: how these
additions could be made.”

3. 1986 NTSB Rear Seat Lap Belt Study

In 1986, the National Transportation Satety Boord
(he "NTSB") published a study describing the havards
assoctated wath wearmg a lap belt only ino frontal

collisions. {Safety Study Performance ef
Lap/Shoulder Belts in 1607 Motor Vehtele Crashes,
N'TUSBISS-SS/02 | Based upon this detailed
Investigation, the NTSB otssued Suatety

Recommendations. which, stated that

By LYSh some Furepesan car manufecturers Mad

iweady mmstalled bap'shoulder belts im the rear scats of thea

Bu)

lxjiven the Known deficiencies of Lip-only
belt systems and the superior crash
protection offered by belt systems they
Incorporate an upper Corso restramel, th

Satety Board beheves that government
and industry should take a number ot
steps to reduce reliance on hip belts sid
increase the availablity of hep shoulder
belt systems

With respect to new cars, the N USB recommended that
all designated positions im the rear seat should be
equipped with Lip shoulder belts

4. 1986 Petition To Amend EMVSS 208

In August 1986. NEEPSA was again petitioned to
require Che imstallationot rear lap shoulder belts in all
new passenger cars See OL Ped. Reg 2YS1TS-19 Chine
16,7987) The Agency granted the petition and began
recxamiming Whether to change FMVSS YOS and
require the installation of reat seat lap shoulder belts
In 19S7, NHPSA issued an Advance Notice of Proposed
Rulemaking requesting comments on a proposal to
amend FMVSS 20S to require lap shoulder belts un
rears cats ofpassenger cars 52 Pod Reg VLSIS (dune
lo. PYs7) In this publication, the NHVSA estimated
Chat replacing lap belts with lap/shoulder belts would
ruse effecteveness un reducing fatalities Co O38 percent
and reduce serious uyjurtes to 50 percent. dd) at 22820
The NHTSA estimated that mstalling a lap’shoulder
belt at the rear-center seat pesition would cost omy

|

S20 per velnele. dd at 2Z28ho. In lose the Agenes
published its final rule requiring lap shoulder belts in
allrear- outboard seating positions 54 Ped Rep 2205
(June 14, 19s

The NHTSA) concluded that the greater
effectiveness of rear seat lap/shoulder belts had
become asigniticant factor because of Che increased
use of seat belts dad at Zo276 This requirement
was not extended to the center rear seat position
nor to outboard seats in multipurpose passenger
vehicles. Jd. at 25278. See also, 54 Fed Reg. at
40258. NHTSA did, however, comment that if
manufacturers were able to design and install
lap/shoulder belts in these positions, it “ts
encouraged to doso”™. Ot course. NILESA did no:
state any objection to mstalling a lap/shoulder belt
rnstead of a lap belt in these other seat position

Finally, am assuming this amended Rule.

NHTSA stated that wt had analvzed these
amendments in accordance with Executive Order
1Ol2 and determined that this Amendment did not
warrant thes preparation of a Pederalism
Assessment because at did mot have anv derisive
affect on state law. Ju

5b. The Sune 1999 Study

While the reclevanev of the remulatorv event
Cragspiting after th of the le an gi
tr i } t ‘ head a | " We fit 1 .

a

In dune 19% NHTSA published a study on the
relative satety advantages of hup belts and iap shoulder
belts in the rear seats of cars (DOT SUS 45
"Effectiveness of (Lap/Shoulder- Belts im the Back
Outboard Seating Positions) NEHPSA’s pronoipal
conclusion was that "[t}he change from lap. te
lap shoulder belts has siguifieanth enhanced oceupiant
protection, especrally mm frontalerashes” fd

ln frontal crashes. lap/shoulder belts are
YS percent more effective than lap belts
alone...) Lap’shoulder belts reduce the
risk of both head and abdominal inmurics
In potentially fatal tromt crashes relative
to lap belts onlw: head injuries by 4;

percent and abdominal myeries by
percent lid

6. Lhe 2003 Proposed Amendment

In December 2002, President Bush signed Anton s
Law" which provided tor improvements in child satets
devices. See tS Ped Reg. 40540 (Docember 4. 2000)
One provision of Anton's Law required that NEPSA
amend FMVSS 20S to require the installation of
lap/shoulder belts im rear-center seating positions by

no later than December 2004 ln August 20dS
pursuant tothis statutory directive, NH ESA published

a proposal toe require lap’shoulder belts ima
rear-center seats OS Fed Reg. deodoe (August 6
ZOOS). NHPSA stated that Anton's Law as’ fal.s
consistent with the agenevs precAisting plan to
initiate rulemaking’ to require Lip shoulder belts om
rear-center seats Jd at 40547. In its Notice of

proposed rulemaking, the Agency emphasized that
requiring lap/shoulder belts in rear-center seats would
not just benefit children, [but] "ijt would also benefit
older occupants.” fd. On this point, the Agency cited
the conclusions of its 1999 study, which found that
requiring lap/shoulder belts im all rear seats would
provide significant safety benefits for both adults and

Children. lad

Ss The 2004 Final Rule Requiring
Lap/Shoulder Belts In Rear Center Seats

ln 2004, NH'PSA published a final rule requiring
the installation of lap/shoulder belts in all rear seats.
In (his announcement, NHTSA speciheally stated that
“lthhe final rule is not intended to preempt state tort
croactions.” 69 Fed. Reg. 70904, 70912 (December &,
200A)

CONCLUSION

The core teaching of Geter is that regulatory
options, standing alone, do not possess any preemptive
force. Ifthe mere existence of regulatory options were
sufficient to preempt tort claims, then the Majority in
Geer would not have needed to address the complex
policy reasons underlying the air bag phase-in of
EMVSS 208; it would have been sufficient to point out
that the car maker had chosen to install one of several
permitted regulatory options. Geter, however, never
purported to rely on such an observation. To the
contrary, the Court's decision included and is based on
a detailed and exhaustive examination of the highly
unusual history and framework of the air bag standard

of FMVSS 208. Gerer thus makes clear that regulatory
options do not exert any preemption force under the
Safety Act unless they are based on special safety
concerns that would be directly undermined by a
common-law chum. As we now explaim, no such
concerns exist in this case.

lor over thirty years, NHTSA has remained a
major proponent of lap and shoulder belts. The
regulatory history of FMVSS 208 shows at least two
things: (1) a lap and = shoulder belt) system = 1s
significantly superior to a lap belt only, and (2) the
government continuously expressed its hopes and
voals to have lap and shoulder belts in every seated
position in every motor vehicle as early as possible.
And, conversely, NHTSA has never rejected as a safety
imperative the inclusion of lap and shoulder belts at
each seating designation.

The government's decision to defer making lap and
shoulder belts a requirement was certainly not the
, or tantamount to, a policy statement
encouraging the continuing installation of lap belts
only. ‘The regulatory history in this instance is very
much the same as what the Court considered in both
Myrick and Spriestma. And, therefore, at the very
least the same decision rejecting implied preemption
should be found.

same as

Respectfully submitted, this 20 day of duly, 2010

Larry lk. Coben
COBEN & ASSOCIATES
S710. Vista Bonita Drive
Scottsdale, AZ 85255

(480) 515-4745
LCoben@ecobenlaw.com
Counsel for Amicus Curtae
The Attorneys Information
xchange Group

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0472%3A14. Public record. Not legal advice.