Complex Litigation

Supreme Court Speaks (Again) On Preemption Of Lawsuits

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. Mazda…."

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, reversed.

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.

Significant Objective

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."

Glass Cases

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, round-edged pieces.

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.

Vaccine Suit

Readers also should note the U.S. Supreme Court's decision one day earlier in 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 result.

 

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 successfully.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes

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 tort law.

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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