By Michael Hoenig - New York Law Journal -
March 14, 2011
On Feb. 23, the U.S. Supreme Court issued its decision in
Williamson v. Mazda Motor of America Inc.1 overturning a California
intermediate appellate court ruling that held automotive products
liability claims involving rear compartment lap belt restraints were
preempted by federal law. In rejecting federal preemption of a suit that
claimed a Mazda minivan should have had rear aisle seat lap-and-shoulder
belts instead of lap belts, the Court distinguished its decision 11
years earlier, in
Geier v. American Honda Motor Co.,2 that a "no air bag" products
liability claim attacking the manufacturer's provision of front seat
belts was preempted. Geier remains good law. It forbids courts from
adjudicating certain types of restraint claims. And Williamson now holds
that certain types of automotive restraint claims are permissible. So
how are courts, counsel and litigants to gauge what is allowed and what
is not? The answer is in the details.
Further, how, if at all, does Williamson affect implied preemption of
automotive design claims attacking other crash protection or crash avoidance
features of vehicles that comply with Federal Motor Vehicle Safety Standards
(FMVSS)? For example, days after the Williamson decision, the Supreme Court
issued a so-called "GVR" order in a case called
Priester v. Ford Motor Co.,3 granting a plaintiff's petition for
certiorari, vacating the judgment upheld by South Carolina courts that threw
out plaintiff's claim as preempted and remanding the case to the Supreme
Court of South Carolina "for further consideration in light of Williamson v.
In the Priester case, some young men went to a strip club, got
intoxicated and then rode in a speeding 1997 Ford pickup truck that left the
roadway and rolled over. James Lloyd Priester, sitting in the rear
compartment unbelted, was ejected, suffering fatal injuries.
Plaintiff sued the manufacturer contending that the truck's side window
glass should have been laminated instead of tempered glass. The South
Carolina courts held the claim barred because of preemption by federal law,
namely, FMVSS 205, which governs window glazing. The glass preemption issue
has split lower courts with South Carolina, West Virginia and Tennessee
courts throwing out the glass claims and the U.S. Court of Appeals for the
Fifth Circuit and Texas Supreme Court holding against preemption.4 What the
South Carolina court will do on remand is uncertain. Certainly, the
respective parties' advocates will try to track the Supreme Court's
reasoning in Geier and Williamson. Plaintiff will try to show her claim is
more similar to Williamson's, while Ford Motor Co. would argue that the
situation is closer to Geier's.
Let's hone in on what the Court did in Williamson and why. The 1993 Mazda
minivan was occupied by the Williamson family when it was struck head-on in
2002 by another vehicle. One of them was sitting in a rear inner aisle seat
wearing the lap belt provided for that position. She died. The family sued,
claiming Mazda should have installed lap-and-shoulder belts at that
position. The California courts threw out the claim as preempted under Geier.
The Supreme Court, however, granted certiorari and, distinguishing Geier,
Justice Stephen Breyer's opinion for the Court reasoned as follows. In
Geier, the 1984 version of FMVSS 208 required manufacturers to equip their
cars with passive restraints providing the driver and front passenger with
occupant restraints that did not require buckling up. Manufacturers were
given a choice of how to comply. There were several options: various forms
of "automatic" seat belts and airbags. A phase-in period established what
percentages of a manufacturer's new fleets had to have passive restraints
until a time when 100 percent was mandated. Initially, only 10 percent of
the new cars had to be equipped with passive restraints.
The choice among different kinds of passive restraints was a "significant
objective" of the federal regulation. The Department of Transportation (DOT)
wanted to give manufacturers time to develop "other, better" passive
restraint systems. It rejected an "all-airbag" system because of the
possibility of a public backlash like the one against interlock devices
which froze the ignition until the occupant buckled the belt.
The agency also was concerned about airbag injuries to children and
out-of-position occupants. Thus, DOT built optional choice into the
regulatory scheme. A lawsuit attempting to penalize a manufacturer for
selecting one authorized option among several would, as claimed by the U.S.
Solicitor General in Geier, "stand as an obstacle to the accomplishment and
execution of the federal objectives." Thus, a lawsuit claiming damages for
failing to provide an airbag when another authorized restraint was selected
was held impliedly preempted by federal law.
In Williamson, the federal regulation also gave the manufacturer a choice
regarding what restraints to provide in occupant positions aft of the front
seats. Indeed, the Court conceded that "the history of the regulation before
us resembles the history of airbags to some degree."5 For example, in 1984,
DOT rejected a regulation that would have required use of lap-and-shoulder
belts in rear seats. But by 1989, when DOT promulgated the present
regulation, it concluded that "several factors had changed." DOT then
required manufacturers to install rear seat lap-and-shoulder belts for the
"outer" seats. As to rear "inner" seats, however, the manufacturer's choice
was retained. This included those inner rear seats that were adjacent an
aisle. The agency believed that requiring lap-and-shoulder belts for inner
seats would not be cost-effective.6 The Court discussed additional agency
considerations such as a lap-and-shoulder belts possibly interfering with
access to and from more rearward seating positions.7
The "more important" reason of cost-effectiveness was considered by the
Court as not "by itself show[ing] that DOT sought to forbid common law tort
suits in which a judge or jury might reach a different conclusion."8 To
infer from the mere existence of a cost-effectiveness judgment that the
federal agency intends to bar states from imposing stricter standards "would
treat all such standards as if they were maximum standards…." But perhaps,
in reality, the agency "seeks only to set forth a minimum standard
potentially supplemented through state tort law."9
Finally, the Solicitor General in Williamson argued that DOT's regulation
regarding rear restraints did not preempt this lawsuit. The opposite was
true in the Geier case where the Solicitor General argued in favor of
preemption. The Court observed that "the agency's own views should make a
difference," as they did in Geier. The Court voted 8-0 in Williamson.
Justice Elena Kagan did not participate. Justice Sonia Sotomayor issued a
concurring opinion in which she agreed with the resolution and reasoning of
what she called the "majority" opinion. However, she wrote separately "only
to emphasize the Court's rejection of an overreading of Geier that has
developed since that opinion was issued."10
Justice Clarence Thomas concurred in the judgment but wrote separately to
state that the statutory "saving clause" explicitly preserved state common
law actions. He is opposed to what he labels the majority's "psychoanalysis
of the regulators." He believes that "freeranging speculation about what the
purposes of the regulation must have been is not proper in any case."
In the side window glass controversy presented by the Priester v. Ford
Motor case, which the Court remanded to the South Carolina Supreme Court
"for further consideration in light of Williamson," debate ensues on what
the result of that reconsideration should be. To simplify here, most vehicle
side windows are made of tempered glass which, when broken, shatters into
small, relatively rounded pieces of glass. This avoids the existence of
sharp, pointed, jagged edges of glass which can puncture an eye, cut an
artery or pierce the occupant. Those consequences may be found when
laminated glass, which contains a plastic interlayer between two sheets of
glass, breaks. Thus, for example, in a side impact or angled collision the
occupant's head may be thrust into the glass and get caught by sharp and
pointed glass still remaining in the window frame. Also laminated glass may,
due to its increased resistance to force, present a relatively harder
surface for the head to strike, thereby increasing exposure to concussion,
trauma or brain injuries, depending on the crash circumstances. Tempered
glass often minimizes these dangers because it shatters into small,
However, in passenger ejection cases, where the occupant exits through a
side window, as during multiple rollovers, plaintiffs sometimes argue that,
had the side window been made of laminated glass, the occupant would not
have been ejected. In other words, the laminated glass, argue some
advocates, should act as an anti-ejection device. This argument also is
advanced in cases where the plaintiff is only partially "ejected" as, for
example, where the occupant's head punches outside the frame housing the
glass and then contacts the ground or another vehicle. One problem, of
course, is that other persons will be injured more severely in other
accidents because laminated glass was used.
The design tensions, the trade-offs between the persons to be protected
and/or harmed by one or the other installation, are reflected to some extent
in the regulatory history, in research by the safety agency and in crash
safety literature. The debate is reminiscent of the statement sometimes used
to describe the open-endedness of crashworthiness design litigation:
"specify to me your accident beforehand and I will design you your car."
How should the Supreme Court's "GVR Order" in Priester be interpreted?
Professor Nicholas J. Wittner of Michigan State University's law school, a
legal expert on crashworthiness law, says two interpretations are possible.
One is that the Court "frowned on the [South Carolina] decision" and
believes that court should reverse. Another possibility is that the Court is
telling the South Carolina Supreme Court to look more deeply into the
regulatory history to make sure that its conclusion is consistent with the
reasoning in Williamson. The state court should determine if the lower court
properly assessed the reasons for the choice given to manufacturers.
Under the second possibility, says Professor Wittner, the U.S. Supreme
Court "has not decided the merits." On the other hand, Matthew Wessler of
Public Justice PC, an attorney for the Priesters, said that the FMVSS 205 at
issue in that case "is, for purposes of preemption, virtually identical to
the standard at issue in Williamson" (which involved FMVSS 208). He sees the
Court's GVR ruling as a rejection of preemption in his case.11
Williamson certainly stirred the preemption pot. In general, it is likely
that plaintiffs' attorneys will be emboldened to file more automotive
products claims despite compliance of the vehicle with FMVSS. The Geier and
Williamson templates are well defined. Glazing cases are in some ferment.
But what about other vehicle design features? At issue in existing and
emerging FMVSS are other complex regulations that offer manufacturers
choices of how to comply. For example, side head impact protection
requirements provide various technical ways for manufacturers to proceed.
Will the manufacturer's selection of a DOT-authorized approach be
second-guessed by lawsuits in which a single litigation expert's preference
is to the contrary? It looks like it. The key will be analysis of the choice
or option involved, the regulatory objective and whether choice was part of
the objective or at least intimately connected with it. Such assessments
will entail diligent research of the regulatory history, administrative
record and safety literature.
Readers also should note the U.S. Supreme Court's decision one day
Bruesewitz v. Wyeth LLC,12 holding by a vote of 6-2 that the National
Childhood Vaccine Injury Act of 1986 preempted a parent's claim that their
daughter's seizure disorder and developmental problems were caused by a
defectively designed, whole-cell pertussis vaccine administered when she was
six months old. An acellular vaccine is used nowadays but had not been
approved for infants then. The Vaccine Act was enacted when litigation
caused manufacturers to abandon that market and caused a vaccine shortage.
The act had an express preemption clause that precluded civil liability for
an injury or death associated with a vaccine administered after Oct. 1,
1988, "if the injury or death resulted from side effects that were
unavoidable even though the vaccine was properly prepared and was
accompanied by proper directions and warnings."
Justice Antonin Scalia's majority opinion viewed the express preemption
provision as foreclosing all design defect claims. If a manufacturer could
be held liable because a different design allegedly should have been used,
then "the word 'unavoidable' would do no work." The design of the vaccine is
a given, not subject to question in a tort action. Justice Breyer joined the
majority but filed a separate concurring opinion. Acknowledging that the
textual question, considered alone, was "close," he found support for the
Court's conclusion in the legislative history, the views of the agency and
expert medical opinion. Justices Sotomayor and Ruth Bader Ginsburg
dissented, arguing that there was no evidence from the statutory text,
structure or legislative history that Congress intended such a preemptive
The Williamson and Bruesewitz decisions show, in effect, that each
preemption case "sits on its own bottom," so to speak. The vaccine case
involved an entirely different statute and an express preemption provision.
The Williamson case involved implied conflict preemption. In the former, the
preemptive effect is set forth in the statute and its reach to the case has
to be ascertained. In the automobile restraint case, the Court had to
determine whether a conflict with federal law and the regulatory scheme
yielded implied preemption, arguably a more difficult hurdle. In recent
years, the implied preemption hurdle has become higher. Preemption of tort
suits is still a "player," but the party asserting the defense needs to do
its homework, limber up and stretch well in order to jump that hurdle
Michael Hoenig is a
member of Herzfeld & Rubin.
1. No. 08-1314 (U.S. Sup. Ct. Feb. 23, 2011) (Slip Opinion).
2. 529 U.S. 861 (2000).
3. No. 10-688 (U.S. Sup. Ct. Feb. 28, 2011) ("GVR" order).
4. See M.S. Barash, "South Carolina High Court Told to Reexamine Ruling
on Preemption of Auto Glass Claims," 39 BNA Product Safety & Liab. Rptr.,
No. 10, at pp. 238-239 (March 7, 2011).
5. Williamson, supra n. 1, Slip Op. at 8.
6. Id., Slip Op. at p. 10.
7. Id., Slip Op. at 9-11.
8. Id., Slip Op. at p. 10.
9. Id., Slip Op. at 11. The Court noted that the Safety Act's "savings
clause" foresees the likelihood of a continued meaningful role for state
10. Citing as examples preemption decisions in
Carden v. General Motors Corp., 509 F.3d 227, 230-232 (5th Cir. 2007);
Griffith v. General Motors Corp., 303 F.3d 1276, 1282 (11th Cir. 2002);
Heinricher v. Volvo Car Corp., 61 Mass. App. 313, 318-319, 809 N.E. 2d
1094, 1098 (2004).
11. See discussion of the respective views in the BNA article by M.S.
Barash, supra n. 4.
12. No. 09-152 (U.S. Sup. Ct. Feb. 22, 2011).
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