BEATING BACK THE BEAST: PROTECTING YOUR CLIENTS AND SAVING CASES FROM FEDERAL PREEMPTION
We should all be concerned. Preemption kills. It is a doctrine that extinguishes or ravishes otherwise meritorious cases-through legislative fiat or mere implication-and affects us all whether we handle toxic tort cases, automobile crash litigation or other legal actions. Perhaps, an example taken from automobile crash cases can best illustrate its crippling effect.
Airbags were successfully demonstrated in actual vehicles more than 20 years ago. Despite this existing technology, only recently have vehicle manufacturers elected to supply airbags with their vehicles, and many still refuse to offer them for passengers. During the last two decades, these conscious decisions have resulted in untold deaths and catastrophic injuries on American highways, and the carnage continues. Sometime today, for example, otherwise healthy Americans will be disfigured, paralyzed or killed because their vehicles were not equipped with airbags.
As consumer lawyers, our hands have been tied in filing lawsuits to compensate the victims and promote the increased use and safety of airbags. Until recently, state and federal decisions across the country have held that the "no-airbag" claim was preempted by federal law, and therefore not actionable.
A new dawn approaches, however. Before seeing the light, we need to focus on the background of federal preemption. In keeping with the example above, we do so in the context of California product liability law.
Preemption in Product Cases
In the past, California law has acknowledged that federal statutes can preempt state tort law, including product claims, in one of two ways: (1) by express preemption where Congress explicitly (in the words of a statute) preempts state law that contravenes the provisions of a particular federal statute, and (2) through an implied preemption analysis where courts infer through statutory purpose, history and interpretation that Congress intended to cover a particular area of law in an exclusive fashion, thereby preempting state law.
Implied preemption has fallen into two categories: (1) occupation-of-the-field, and (2) conflict. Occupation-of-the-field preemption has been found where the "scheme of federal preemption [is] so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it."1 In automotive product cases, however, almost no court has gone so far as to say that Congress intended to occupy the entire field of motor vehicle safety.
Courts instead have relied on implied "conflict" preemption to preclude the no-airbag claim. This type of implied preemption has been inferred where state law conflicts or is otherwise impermissibly inconsistent with applicable federal statutes.2 With this doctrine, Congressional intent to preempt state regulation is not needed. The court only has to find that the state law at issue "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."3
In California and elsewhere, based mainly on express or (implied) conflict preemption, product cases have been dismissed on the premise that certain federal laws pertaining to particular products preclude the application and protection of state tort law.4
Of course, the laws of the United States are the supreme law of the land, as declared in the United States Constitution at Article VI, Clause 2. And as such, state law cannot override or interfere with federal laws. This is the core of the express preemption doctrine.
On the other hand, the United States Supreme Court recently emphasized in CSX Transportation Inc. v. Easterwood, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) that "[i]n the interest of avoiding unintended encroachment on the authorities of the States . . . a court interpreting a federal statute pertaining to a subject traditionally covered by State law will be reluctant to find preemption. Thus, preemption will not lie unless it is 'the clear and manifest purpose of Congress.'"5
As such, in most product cases, the best counter to an express preemption defense is a careful study and argument showing that the federal laws involved do not expressly and clearly preempt state tort law as to the product or the circumstances in your case. With express preemption, your success will be tied directly to the explicit wording of the federal statute(s) at issue.
Today, though, the counter to any implied preemption defense is far more reaching and effective as a result of the 1992 United States Supreme Court decision in Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In that case, the Court held that whenever Congress addresses the subject of preemption in a federal law in any manner, and the provision provides a "reliable indicium of Congressional intent with respect to state authority," federal and state courts are not to apply an implied preemption analysis.6
The No-Airbag Claim
Applying these teachings to the automotive products area and our example of the "no-airbag" claim, we start with the fact that the National Traffic and Motor Vehicle Safety Act of 19667 is the operative federal law involved. The Federal Motor Vehicle Safety Standards (FMVSS) are promulgated under the Safety Act, and set minimum rules and test requirements for occupant crash protection. The Safety Act, however, has both a specific preemption clause and a "savings clause."
The express preemption clause is at § 1392(d)8 and explicitly declares that no state shall enact or enforce safety standards for automobiles that differ from the federal standards. In other words, Congress expressly reserved the exclusive right to issue specific safety standards through the FMVSS provisions of the 1966 Motor Vehicle Safety Act.
The Safety Act goes on, however, to include a "savings clause" at § 1392(k)9 that preserves the application of state common law to all other issues; expressly preserving a plaintiff's cause of action for alleged defective design and manufacturing in a crashworthiness case. A reading then of CSX Transportation v. Easterwood, supra,10 and the Safety Act's limited preemption clause at § 1392(d), in light of its savings clause at § 1392(k), should obviate the use of express preemption in the future to preclude a state tort action for the failure to install airbags; otherwise the savings clause itself would be meaningless.11 What remains then is the possible application of (implied) conflict preemption to the no-airbag claim.
Once again applying the Safety Act's limited preemption clause and its savings clause to the holding in Cipollone, however, we see that because Congress specifically addressed the subject of preemption in the applicable federal law and expressly provided through the savings clause that there should be no preemption of state common law, courts in the future should not apply an implied preemption analysis to no-airbag claims.12 Clearly, the savings clause of the Safety Act provides the needed "reliable indicium of Congressional intent with respect to state authority."13
The Effect on Current and Future Law
Essentially, then, Cipollone strips away one of the biggest hammers that defendants have used in the past to chisel at the application of state tort law in the no-airbag and other product cases. For example, using the 1966 Motor Vehicle Safety Act and implied preemption, auto manufacturers argued successfully in Nissan Motor Corporation in U.S.A. v. Superior Court (1989) 212 Cal.App.3d 980, 261 Cal.Rptr. 80 that there should be no tort liability for their failure to incorporate airbags in cars.14
This decision in favor of preemption by Division 1 of the Second District in Nissan was reached despite the earlier decision in Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 132 Cal.Rptr. 605 by Division 3 of the Second District finding no implied preemption under the Motor Vehicle Safety Act. As the Nissan court stated, however:
This court is not bound by the decision of other California courts of appeal. This court also is not bound by the interpretation of federal law by federal courts lower than the United States Supreme Court.15
However, now the United States Supreme Court has spoken-in Cipollone and Easterwood-sounding the death knell for the Nissan decision and its underpinnings. As a result, the holdings of Buccery should become the operative law in California with respect to automotive product safety. Under Cipollone, Easterwood and Buccery, defect claims regarding the absence of safety items such as airbags or anti-lock brakes, or even the use of defective components such as certain passive seatbelt systems should not be dismissed on the grounds of implied preemption in future California cases.
Already the Court of Appeals for the Ninth Circuit has followed Cipollone and held that neither the Federal Locomotive Boiler Inspection Act, the Noise Control Act, the Federal Railroad Safety Act, nor the Emergency Medical Treatment and Active Labor Act impliedly preempt state tort law.16 In addition, the Court of Appeals for the Eleventh Circuit in Myrick v. Freuhauf Corporation, 13 F.3d 1516 (11th Cir. 1994) recently reversed its earlier decisions17 and found no implied preemption in automobile product cases related to the National Traffic and Motor Vehicle Safety Act.18
And, within the last few weeks, the United States Supreme Court granted certiorari in Myrick and a Georgia case involving the absence of anti-lock brakes. The reason is thought to be to eliminate the remaining ambiguity throughout the federal circuits in the area of automotive products liability and preemption. Unless they turn their backs on the sound reasoning of their recent decisions in Cipollone and Easterwood, the United States Supreme Court should use these cases to expressly reject the use of implied preemption in automotive product cases. A result that would be eminently fair, logical, and a shining light on consumer safety.
|| Pacific Gas and Electric Company v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 203-04 (1983). |
|| See, e.g., Laurence H. Tribe, American Constitutional Law, § 6-25 (2d Ed. 1988). |
|| Michigan Canners and Freezers Association v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 469 (1983) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). |
|| See, e.g., Nissan Motor Corporation in U.S.A. v. Superior Court (1989) 212 Cal.App.3d 980, 982, 261 Cal.Rptr. 80, 81. |
|| CSX Transportation v. Easterwood, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993) (citations omitted). See also Jones v. Rath Packing Company, 430 U.S. 519, 525-26, 97 S.Ct. 1305, 1309-10, 51 L.Ed.2d 609 (1977); and Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). |
|| Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992). |
|| 15 U.S.C. §§ 1381-1431 (1988 and Supp. III 1991). |
|| 15 U.S.C. § 1392(d) states:
Whenever a federal motor vehicle safety standard established under this title is in effect, no state or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. (Emphasis added.)
|| The Act's savings clause states:
Compliance with any federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law. (Emphasis added.)
|| See note 5 supra. |
|| See, e.g., Garrett v. Ford Motor Co., 684 F.Supp.407 (D.Md. 1987); and Baird v. General Motors Corp., 654 F.Supp. 28 (N.D. Ohio 1986). |
|| Id. |
|| Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608, 2618, 120 L.Ed.2d 407 (1992). |
|| Nissan Motor Corporation in U.S.A. v. Superior Court (1989) 212 Cal.App.3d 980, 982, 261 Cal.Rptr. 80, 81 (holding that no-airbag claims are impliedly preempted by federal law). |
|| Nissan Motor Corporation in U.S.A. v. Superior Court, supra at 982, 261 Cal.Rptr. at 81 (citations omitted). |
|| See Southern Pacific Transportation Company v. Public Utility Commission, 9 F.3d 807, 810-13 (9th Cir. 1993); and Draper v. Chiapuzio, 9 F.3d 1391, 1393-94 (9th Cir. 1993). |
|| For example, Taylor v. General Motors Corporation, 875 F.2d 816, 825 (11th Cir. 1989), cert. denied, 494 U.S. 1065 (1990). |
|| Myrick v. Freuhauf Corporation, 13 F.3d 1516, 1521-22 (11th Cir. 1994).|