majority’s view, rendered the Geiers’ claims impliedly preempted by Standard 208.
The majority’s implied preemption
ruling was bad news because the Geiers’ claims did not even arguably conflict with the actual terms of Standard 208 (which, by its terms, actually encouraged manu- facturers to install airbags in all of their cars). Nor, as the dissent demonstrated, did the Geiers’ claims conflict with the real policies underlying Standard 208 (which were to promote auto safety by encouraging, but not requiring, the manu- facturers to install airbags and by relying on a variety of incentives – including the threat of tort liability – to prompt the manufacturers to adopt the safest designs while avoiding a consumer backlash). The dissent observed that the majority’s will- ingness to find preemption in circumstances like these creates a major risk that activist lower court judges will erroneously find common law claims im- pliedly preempted on the basis of any number of policies they think underlie various regulations. The good news is that, in fact, the
majority’s implied conflict holding and rationale were extremely narrow. To begin with, the majority did not find all “no-airbag” claims preempted. It explic- itly left for another day whether there is implied preemption of a claim that a manufacturer would have installed “airbags rather than another type of pas- sive restraint in a certain model of car because of other design features particu- lar to that car.”13
Similarly, while the
majority did not mention it, the portion of Standard 208 it relied upon did not apply to cars manufactured before 1987, to the front passenger and rear seats, or to trucks, tractors, or multi-purpose vehicles like jeeps. Honda had, of course, urged implied preemption on grounds covering those vehicles and seating positions, too. The Court did not adopt them. Honda, of course, advanced much
broader implied preemption arguments in Geier, many of which had been adopted by lower federal courts in other “no-airbag” cases. The USA, however, rejected these arguments in its amicus brief and the Court did not accept them. In- stead, the majority gave the USA’s position “special weight”14
and adopted a ratio-
nale that, if honestly applied, should lead to the implied preemption of virtually no other crash victims’ claims. To achieve
13Id. at 1928. 14Id. at 1928.
Winter 2001 Trial Reporter 19
that result, however, plaintiffs’ lawyers will have to fully research and explain to the courts both the history and goals of the federal laws the defendants claim justify preemption. In addition, they will have to understand – and educate the courts about – the USA’s position.
The USA’s Position The narrow implied preemption ratio-
nale advanced by the majority in Geier was essentially adopted wholesale from the amicus brief filed by the USA. It was spe- cifically crafted by the government so it applied only to certain no-airbag claims. Since the Court’s majority emphasized its reliance on the USA’s long-held position, the USA’s position will be critical in fed- eral preemption cases – both under the Safety Act and in cases involving other products.
This is good news for most crash vic- tims since the USA has consistently taken the position that almost no auto design defect cases are implicitly preempted. Thus, the USA’s brief in Geier said that claims that an airbag improperly deployed or that a car should have included anti-lock brakes (even though the federal standard permits, but does not require, anti-lock brakes) are not preempted.15 The USA’s brief also said that auto design defect claims are not preempted because they require more than a federal safety standard requires or because the federal standard contains options that the manu- facturers can take to comply.16
In other
words, after Geier, as long as the federal government has not expressed an affirma- tive desire, based on safety considerations, for some of the manufacturers to take each of the options, there should be no implied preemption. Admittedly some courts have recently issued decisions saying oth- erwise, but, in fairness, they simply were
15
Brief for the United States as Amicus Curiae Supporting Affirmance, Geier v. American Honda Motor Co., No. 98-1811 (Nov. 1999) at 21 and 26 n.23.
16Id. at 21.
not informed of the USA’s position.17 Because of the importance of the USA’s position, plaintiffs’ lawyers faced with fed- eral preemption arguments under the Safety Act should obtain copies of the USA’s amicus briefs to the Supreme Court in Geier, Freightliner, and Wood v. General Motors Corp. (in which the USA set out its position in a brief in opposition to cer- tiorari). All are available from TLPJ, which also has on file – and will continue to seek - opinion letters from the Depart- ment of Transportation stating the government’s formal position that certain common law claims are not preempted. These materials should be given signifi- cant weight after Geier. The Supreme Court’s reliance on the
USA’s long-held position in Geier should also be a positive development for victims of many other products. In the last sev- eral years, the USA has filed amicus briefs arguing against federal preemption of in- jury victims claims stemming from boat propellers, medical devices, pesticides, and more. TLPJ has copies of these briefs, too. The USA’s position may, of course, change after the next Presidential election, but the Court has repeatedly said that the USA’s long-held position is entitled to def- erence. The Supreme Court itself may, however, change after the next Presiden- tial election as well. Indeed, perhaps the single biggest implication of Geier is how important the Court’s make-up is to in- jury victims’ rights. For Geier shows that the rights of millions of potential injury victims can turn on the vote of one mem- ber of the Supreme Court.
17
See James v. Mazda Motor Corp., 2000 U.S.App. Lexis 20954 (11th Cir. Aug. 18, 2000); Hurley v. Motor Coach Industries In- corporated, 2000 U.S.App. Lexis 17852 (7th Cir. July 25, 2000). In both cases, the courts found implied preemption because a federal standard provided options, but neither court was informed of the USA’s formal position that federal standards do not preempt com- mon law claims just because they provide options.
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