By Michael Hoenig - New York Law Journal -
April 11, 2011
In our March column, "Supreme
Court Speaks (Again) on Preemption of Lawsuits,"1 we
reported on the Supreme Court's decision in
Williamson v. Mazda Motor of America Inc.2 holding that a
California lawsuit attacking the rear aisle seat lap belt as defective
in design was not preempted even though the Federal Motor Vehicle Safety
Standard (FMVSS) allowed manufacturers a choice of installing either a
lap belt or a lap-and-shoulder belt. The Court reasoned that the choice
or option was not a "significant objective" of the federal regulation
dealing with rear seat restraints. On the other hand, in
Geier v. American Honda Motor Co.,3 the Court held that a
"no-air bag" lawsuit attacking the manufacturers' choice of a
lap-and-shoulder belt in the front seat, one of several options
permitted by FMVSS 208, was preempted. Williamson distinguishes
Geier as a case where the restraint options were a "significant
objective" of the regulation.
Federal preemption of certain kinds of automotive products liability
claims continues to be a battleground despite Williamson's narrowing
of the opening. In the March column, referring to several specific cases, we
talked about side window glass litigation where some plaintiffs' experts
have urged that laminated glass should have been used instead of tempered
glass. Just weeks ago, a new post-Williamson preemption ruling emerged, this
time involving air bag warnings, as prescribed by FMVSS 208 which requires
labels that must be permanently affixed to the sun visors for front outboard
These labels are to provide warnings to the driver and front passenger
regarding certain risks of "inflatable restraints," commonly called air
bags. FMVSS 208 sets forth the specific language to appear on the labels.
What if a plaintiff wishes to file a warnings claim alleging that a
different warning should have been given? The new decision, Morris v.
Mitsubishi Motors North America Inc.,4 issued on March 23, comes
from a federal judge in the State of Washington, Rosanna Malouf Peterson,
and holds such a warnings claim to be preempted notwithstanding the Supreme
Court's Williamson decision a month earlier.
The facts are interesting. Plaintiff drove her 1996 Mitsubishi Eclipse
into the rear of a flatbed truck stopping for a bus. The air bag deployed.
She sustained an atlanto-occipital dislocation, in which her spinal cord was
severed, resulting in incomplete quadriplegia and paralysis. The parties
agree that her injuries resulted from the air bag deployment and not from
the impact of the collision. Plaintiff's and defendant's experts were in
accord about the relative speeds of the vehicles but disputed the change in
velocity of plaintiff's vehicle at collision and the change in velocity
thresholds for deployment to the 1996 Eclipse's air bags. The parties also
disputed whether plaintiff applied her brakes immediately prior to the
Considerable attention was focused by defendant's expert on the
plaintiff's seating position. The expert opined that plaintiff was
inattentive and out of her proper seating position. Had she not been bending
down to pick something off the floor, she likely would have been properly
seated and would not have been severely injured. One of plaintiff's doctors
wrote in his medical notes that plaintiff "bent down while driving and ran
into a flatbed truck." The doctor's notes did not state whether plaintiff
reported the bending down to the doctor or whether the doctor inferred that
from the nature of her injuries.
Mitsubishi maintained that the air bag deployment threshold relied
primarily on the measure of the change in velocity experienced by the
vehicle during a crash, the so-called "Delta-V." The deployment threshold
has to be low enough to prevent or minimize injuries in lower speed
collisions as well as high. When the air bag is triggered, it inflates very
fast and comes forward with great force. The occupant should be
lap-and-shoulder belted—the air bag is only deemed a "supplemental restraint
system"—and this proper seating position is important to the overall
envelope of interface between the belted occupant and the deploying air bag.
If the occupant is too close or out of position or bending down to pick up
something, there are risks of injury.
The Mitsubishi Owners Manual warned in bold capital print that it was
"very important to be properly seated," that if the driver and passenger
"are not properly seated, the air bag may not protect you properly and could
cause injury when it inflates." Drivers were told to "adjust the driver's
seat as far back as possible while still maintaining control of the car."
Further, the properly belted driver and front passenger were told to "sit
upright with backs against the seat backs."
The sun visor bore a label warning that "you must always wear your safety
belt"; not to install "rearward-facing child seats in any front passenger
seat position"; not to "sit or lean unnecessarily close to the air bag,"
among other cautions. The specific language and placement of the sun visor
warning label was mandated by FMVSS 208. The regulation said, "this label
shall read:" and then set forth the text that was placed on the Mitsubishi
visor involved in the case. Defendant moved for partial summary judgment on
the manufacturing and design defect claims, but this motion was denied
because factual issues were presented.
Defendant also moved for partial summary judgment on the warning claim
because it was preempted. Plaintiff argued that even if the label's verbiage
were fixed by the regulation, that did not prevent manufacturers from
including other warnings in their owner's manuals or elsewhere in the
vehicle other than the sun visor. Judge Peterson, however, looked to a post-Geier
Sixth Circuit decision called
Fisher v. Ford Motor Co.,5 which held preempted a
failure-to-warn claim proposing that additional and different warning labels
should have been given, including a warning about increased risk from air
bags to drivers of short stature.
The Sixth Circuit ruled that the safety agency (National Highway Traffic
Safety Administration) "thought of its warning language as not simply the
minimum, but as the sole language it wanted on the subject." The safety
agency "feared 'information overload,' i.e., that additional warnings would
distract from the warnings it had determined were critical, leading
consumers not to focus properly on the latter."6 The court in Fisher
declined to reach the question whether additional identical labels placed
elsewhere than the visor would also be preempted.
The safety agency said that the goal of the label's text was to ensure
achieving "the optimal balance between the need to inform the public about
the types of occupant behavior and uses that may reduce the effectiveness of
air bags and the equally important need of avoiding a label with added
language that would potentially create an information overload."7
Accordingly, following the logic set out in Fisher, Judge Peterson was
persuaded that NHTSA was concerned about "information overload," and that
plaintiff's warning claim was preempted. As for warnings that may not
conflict with FMVSS 208, plaintiff did not offer a "developed theory or
evidence" supporting the failure to warn claim. For example, no scenario was
offered "in which a different warning than those included on the visor or in
the owners manual would have prevented her injuries." Likewise, there was no
evidence presented that "the absence of any particular information
proximately caused her injuries in the collision."8
Did T. John Ward, U.S. District Judge for the Eastern District of Texas,
take a cue from Nathaniel Hawthorne's classic, "The Scarlet Letter," when he
fashioned a discovery sanctions order which he issued on March 1 in a case
Green v. Blitz U.S.A. Inc.?9 Blitz manufactures gas cans.
Plaintiff Rene Green filed a products liability lawsuit, one of several
similar cases, claiming that a gas can caused the death of Brody Green
because it lacked a flame arrester. Blitz defended that a flame arrester was
not included because they are ineffective. At trial, before the jury
returned a verdict, the parties entered into a high-low settlement
agreement. The jury returned a unanimous defense verdict triggering the
"low" settlement figure.
Plaintiff's counsel in this case also represented another plaintiff in a
different Texas district court. There, a year after the trial in Green,
he learned of defense documents that were not produced in Green.
Plaintiff moved for sanctions and to reopen the case. A Magistrate Judge
issued a recommendation not to reopen the case because of the one-year
statute of limitations in FRCP 60(b)(1)-(3). The district judge adopted this
conclusion. The court, however, focused on the motion for discovery abuse.
Apparently, the defendant had been accused of discovery abuse in other cases
involving flame arrester claims and had been sanctioned.
Plaintiff contended that Blitz failed to produce certain documents and
failed to preserve documents. The majority of these related to the flame
arrester or to the company's interest in potentially using one in its gas
cans. The court described defendant's approach to responding to discovery.
It had a single employee, who was computer illiterate, responsible for
searching for and collecting documents relevant to ongoing litigation. He
would meet with the local defense attorney, try to understand what was
relevant for production and then talk with the company's areas that the
documents would most likely be in. Thereafter, a national coordinating
counsel was brought in, and this employee would get his understanding as to
what was needed from him. He testified that he was a "face-to-face guy" and
would talk with the pertinent people regarding the documents sought. He did
not institute a litigation hold, did not do any electronic word searches for
e-mails or talk with the IT department regarding how to search for
Next the court considered some of the documents not produced. One of
these came to be known as the "Wish List," a letter from defendant's former
CEO to the employee with the subject label, "My Wish List." The top line of
the letter reads, "Expectations for Gas Cans (to be completed in next 2
yrs.)." The second point stated: "Develop and introduce device to eliminate
flashback from a flame source. Once this is developed we should advocate the
device be standardized under ASTM req's [sic] or laws." Another document
acknowledged that the marine industry uses flame arresters "in all the boat
tanks, so the technology and testing has to be in place today."
Based on the failure to disclose these and other documents, the court
found a willful violation of the court's discovery order. Further, in the
proposed pretrial order submitted by the parties, counsel had certified that
"full and complete disclosure has been made in accordance with the Federal
Rules of Civil Procedure and the Court's orders." The failure to issue a
litigation hold and to search electronically meant that there was not a
reasonable search made for responsive documents and, further, that documents
were not preserved. During this time documents were routinely deleted.
Further, due to rotation of defendant's backup tapes every two weeks, the
deleted employee e-mails were permanently lost.
As a result, the court awarded sanctions for discovery abuse. First, the
court ordered defendant to pay $250,000 in civil contempt sanctions to
plaintiff, intended to "compensate the plaintiff for losses sustained due
to…multiple discovery violations." The court found "the settlement would
have been not less than $250,000" but higher if plaintiff would have had the
documents.10 The court clarified that the sanctions were directed at Blitz
and not its attorneys.
Next, the court additionally ordered a "purging sanction" of $500,000.
This would be tolled for 30 days from the date of the court's memorandum and
order. At the end of 30 days, if Blitz certified to the court that it has
provided a copy of the court's memorandum and order to "every plaintiff in
every lawsuit it has had proceeding against it, or is currently proceeding
against it, for the past two years," then the $500,000 civil sanction would
be extinguished. The "purging sanction" was deemed allowable under Fifth
Circuit law. Its purpose is to "coerce the defendant into compliance with
the court's order."
Finally, the court issued a sanction to "encourage future compliance." For
the next five years from the date of the memorandum order, Blitz is ordered
that in every new lawsuit it participates in as a party, whether plaintiff,
defendant, or in another official capacity, it "must file a copy of this
Memorandum Opinion and Order with its first pleading or filing in that
particular court." This is intended to "ensure that Blitz complies with
future discovery obligations." Maybe "The Scarlet Letter" will become
required reading for compliance with discovery obligations.
Michael Hoenig is a
member of Herzfeld & Rubin.
1. New York Law Journal, March 14, 2011, p. 3.
2. No. 08-1314 (U.S. Sup. Ct. Feb. 23, 2011).
3. 529 U.S. 861 (2000).
4. 2011 U.S. Dist. LEXIS 30229 (E.D. Wash. March 23, 2011).
5. 224 F.3d 570 (6th Cir. 2000).
6. Quoting from Fisher, 224 F.3d at 574.
7. Morris, 2011 U.S. Dist. LEXIS 30229, at *26-*27 (quoting from
58 Fed. Reg. 46551).
8. Morris, 2011 U.S. Dist. LEXIS at *27-*28.
9. 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. March 1, 2011).
10. Green, 2011 U.S. Dist. LEXIS 20353, at *32-*33.
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