Federal Preemption:
Geier and Its Implications (Continued from page 16)
a car without airbags would constitute a forbidden “safety standard applicable to the same aspect of performance ... which [was] not identical to the Federal stan- dard” – and was, therefore, expressly preempted.
All nine members of the Court rejected
Honda’s argument. The court unani- mously concluded that the Safety Act does not expressly preempt any common law claims. The five- member majority relied on the fact that the Safety Act also has an express savings clause, which says: “Com- pliance with any Federal motor vehicle safety standard shall not exempt any per- son from any liability under common law.”6
The Court’s unanimous ruling against
express preemption was a huge victory for three reasons. First, several courts had already held that the Safety Act does ex- pressly preempt common law claims.7 The Geier decision overruled these courts on this point. Second, the auto manu- facturers had spent years seeking an express preemption ruling because of its potential broad-based impact. The Court made clear that the vast majority of auto design defect claims are not, in fact, pre- empted. Third, several other statutes – including the Boat Safety Act, the Con- sumer Product Safety Act, and the National Manufactured Housing Con- struction and Safety Standards Act of
6 7
15 U.S.C. §1397(k) (1988 ed.), recodified at 49 U.S.C. §30103(e) (1994 ed.).
Harris v. Ford Motor Co., 110 F.3d 1410 (9th Cir. 1997) (no airbag); Gracia v. Volvo Europa Truck, 112 F.3d 291 (7th Cir. 1997) (truck windshield retention); Zimmerman v. Volkswagen of America, Inc., 920 P.2d 67 (Id. 1996) (no lap belt)
8
Choate v. Champion Home Buildings, 2000 U.S.App. Lexis 17873 (10th Cir. July 25, 2000).
9
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992).
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18 Trial Reporter
Reaching Implied Preemption While the express preemption ruling was the most encouraging part of Geier, the majority’s willingness to reach the is- sue of implied preemption was the most disturbing. In 1992, in the Cipollone ciga- rette labeling case, seven members of the Court held that, where Congress has ex- pressly stated its intent with respect to preemption and what Congress has ex- pressly said is a “reliable indicium of congressional intent,” that should be the end of the analysis and courts should not even consider whether (much less find that) Congress somehow implicitly in- tended a different result.9 Nevertheless, in Geier, five members of the Court chose to disregard Congress’ unequivocal words tin the Savings Clause and find that compliance with some Fed- eral motor vehicle safety standards does exempt some persons from some liability under common law.
While the major-
ity claimed otherwise, it effectively held that regulatory agencies implicitly have the power to preempt state common law claims, even if Congress explicitly and specifically says it is withholding that power from the agencies.
1974 – contain similar express preemp- tion and savings clauses. Geier makes plain that those statutes don’t expressly preempt any common law claims either, even though many lower courts had al- ready reversed a district court finding common law damages claims expressly (and impliedly) preempted by the last stat- ute mentioned above.8
Similar express
preemption rulings should be expected in the years ahead.
What this part of Geier means is that, at least for now, no matter what Congress has said, courts will be willing to consider arguments that a particular common law claim is impliedly preempted because it arguably conflicts with some federal law or regulation. If a statute has no savings clause like the Safety Act’s, the defendants will try to craft arguments for both ex- press preemption (relying on the wording of the statute) and implied preemption (relying on an alleged conflict between the common law claim and the federal government’s policy goals). In cases un- der the Safety Act and similarly-worded statutes, the express preemption battle has been won, but the war isn’t over. We will now have to fight it out on the implied preemption battleground.
Implied Preemption Geier offers some bad news and good news for the implied preemption battles, both in auto design defect litigation and elsewhere. The bad news, of course, is that the majority found implied preemption because, in its view, the Geiers’ claims conflicted with the policies underlying the portion of Federal Motor Vehicle Safety Standard 208 that applied to driver crash protection in 1987 (when the 1988 Honda Accord was manufactured). Relying heavily on the amicus brief in
support of preemption filed by the United States of America, the majority said that the relevant part of Standard 208 (which, as part of a multi-year regulatory phase-in of passive restraints, required at least 10% of 1988 model year cars to have some form of driver’s side passive restraint) “de- liberately sought variety – a mix of different passive restraint systems.”10
As
the federal government explained it and the majority saw it, the U.S. Department of Transportation wanted variety because “a mix of devices would help develop data on comparable effectiveness, would allow the industry to overcome the safety prob- lems and the high production costs associated with airbags, and would facili- tate the development of alternative, cheaper, and safer passive restraint sys- tems.”11
The majority reasoned that permitting a common law tort claim like the Geiers’ would impermissibly frustrate these regulatory goals by “requir[ing] manufacturers of all similar cars to install airbags rather than other passive restraint systems, such as automatic belts or pas- sive interiors.”12
This conflict, in the
10Geier, 120 S.Ct. at 1924. 11Id.
12Id. at 1925. Winter 2001
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