Escaping implied preemption.

In the 1992 decision Cipollone v. Liggett Group, Inc., the U.S. Supreme Court dramatically scaled back the doctrine of implied preemption.(1) Although the case concerned claims against cigarette producers, the decision should ensure that the courts remain open to consumers injured by dangerously designed vehicles.

Before Cipollone, some courts had held that the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act) implicitly precluded some automotive design defect claims, particularly claims based on the failure to install air bags.(2)

But in Myrick v. Freuhauf Corp.,(3) the first post-Cipollone federal appellate decision addressing the preemptive effect of the Safety Act, the Eleventh Circuit reversed its previous position. The court held that common law crashworthiness claims are not preempted by the Safety Act. The decision bodes well for access to the courts and heralds the decline of the doctrine of implied preemption.(4)

Since the 1960s, society has encouraged auto safety through two complementary systems: federal regulation and common law liability. Indirectly, General Motors is largely responsible for this. The Chevrolet Corvair provided the impetus for both congressional authorization of federal auto safety regulations and judicial acceptance of the crashworthiness doctrine. This doctrine allows tort recovery for people injured when vehicle designs fail to provide reasonable crash protection.

In 1965, Ralph Nader's expose of the Corvair's designed-in dangers, Unsafe at Any Speed, energized the U.S. consumer movement. The book raised public awareness that auto manufacturers should be making cars that not only move people but move them safely.

Congress responded with the Safety Act, which directed the Secretary of Transportation to develop minimum safety requirements for new vehicles. This function was later delegated to the National Highway Traffic Safety Administration (NHTSA). The act sought uniformity of state and federal regulation:

Whenever a Federal motor vehicle safety standard established under this subchapter 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 or equipment which is not identical to the Federal standard.(5)

While Congress was considering the legislation, a civil suit by Erling David Larsen was proceeding through the courts. Larsen had been injured when the Corvair he was driving collided with another car. The impact drove the steering column back into the passenger compartment, where it struck Larsen's head

In 1968, the Eighth Circuit Court of Appeals found that auto accidents are not only foreseeable but inevitable. Therefore, the court ruled, automakers have duty to design reasonable occupant protection into their vehicles.(6) This ruling gave rise to what is now called the "crashworthiness doctrine."

During its consideration of the Safety Act, Congress was aware that crashworthiness issues were pending in the courts. Because the act was intended to add to, and not detract from, consumer protections,(7) Congress expressly preserved private tort remedies: "Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law."(8)

Fight Against Air Bags

For two decades, Congress's intent was respected, and the courts consistently recognized that compliance with safety standards does not immunize a manufacturer from civil liability.(9) That deference to Congress became endangered, however, during the air bag debate of the 1970s and 1980s.

By the early 1970s, automotive safety engineers had designed, tested, and proven air bag technology, which has the potential to save thousands of consumers each year from death or serious injury.(10) General Motors actually installed air bags in about 10,000 cars from 1974 through 1976 but faded to promote them.(11)

Rather than using their resources to bring this lifesaving technology to the consumer, auto manufacturers (including General Motors) used their wealth and political access to delay widespread availability of air bags. This is especially ironic in retrospect, given the current auto industry ads touting the benefits of air bags - now that federal regulations require them.

The ignominious history of air bags has been described in detail elsewhere.(12) Suffice it to say that manufacturers, through their superior access to the legislative and executive branches of the federal government, were able to outgun consumers and effectively delay air bag regulations for two decades. Highlights of the battle included

* industry meetings with government officials at the highest levels (including an Oval Office meeting of President Nixon and his chief advisers with Lee Iacocca and Henry Ford),(13)

* a lawsuit unsuccessfully, challenging NHTSA's authority to adopt passive restraint standards, (14) and

* a later lawsuit successfully challenging NHTSA's action in rescinding passive restraint regulations during the Reagan administration.(15)

The public paid a heavy price for this delay. In one study, the Insurance Institute for Highway Safety found 29 percent fewer driver deaths in frontal crashes in air-bag-equipped cars than in the same number of cars without the devices. The institute estimated that if all passenger cars on the road had been equipped with air bags, about 4,000 lives could have been saved in 1991 alone.(16)

In 1984, NHTSA revised Federal Motor Vehicle Safety Standard (FMVSS) 208.(17) This regulation required that beginning with the 1990 model year, new passenger cars would have to include "passive restraints" - that is, restraints that do not require action by the occupant. However, the rule did not specifically require air bags.(18)

Many manufacturers comply with the requirements by using "automatic" seat belts. Unfortunately, these belts provide poor occupant protection compared to the combination of an air bag and a three-point manual seat belt. In fact, some passive restraints - such as door-mounted belts and automatic, shoulder restraints paired with manual lap belts - can actually cause injuries under certain circumstances.(19)

Adoption of this regulation was a hollow victory for the traveling public. Consumers were stiff left with only common law tort remedies for failure to include air bags or for use of unsafe passive restraints. These remedies are poor substitutes for effective federal regulation because redress in the courts can be sought only after the dangerous vehicle has been marketed and involved in an accident and has caused needless injury or death.

Worse, the new federal regulatory scheme was misused to block even judicial redress. Automakers faced with claims for failure to equip their vehicles with air bags pointed out that FMVSS 208 lets manufacturers choose between air bags and other forms of passive restraints. Therefore, the companies argued, state civil claims arising from that choice are preempted by federal law.

Many courts refused to find preemption of no-air-bag claims and claims based on the dangers of other passive restraint systems. But other courts, including four federal circuit court panels, initially held that the claims were preempted.(20)

These courts recognized that the Safety Act did not expressly preempt crashworthiness claims after all, it expressly preserved common law liabilities. However, the courts concluded that the act and FMVSS 208 implicitly preempted claims based on a manufacturer's choice of a non-air-bag option. Then came the Cipollone decision.

Cipollone involved the common law claims of Rose Cipollone, a smoker who ultimately died of lung cancer, against the manufacturers of the cigarettes she smoked. Her complaint included five theories of recovery that are commonly alleged in products liability actions: design defect, failure to warn, breach of warranty, fraudulent misrepresentation, and conspiracy to defraud.

The manufacturers asserted that all common law claims were barred by congressional enactments in 1965 and 1969. These required health warnings on cigarette packages and print advertisements and banned cigarette advertising on television and radio.

Justice John Paul Stevens announced the decision of the Court and wrote an opinion that was joined in full by three justices and in part by three others. The four-justice plurality concluded that most of the common law claims could proceed, but that some failure-to-warn claims were expressly precluded by language in federal statutes prohibiting state-law labeling requirements. Three other justices would have allowed all the common law claims to proceed. Only Justices Clarence Thomas and Antonin Scalia would have held all common law claims preempted by the federal statute.

The part of the opinion representing seven justices recognized that although state law conflicting with federal law is preempted,(21) the states' historic police powers (including common law liability) will be considered preempted only when that is the clear purpose of Congress.

The majority acknowledged that congressional intent to preempt may be implied by the structure and purpose of a Federal act, even in the absence of an express preemption provision. But the opinion curtailed the right of the judiciary to find implied preemption where Congress has addressed preemption directly:

When Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to preempt state laws from the substantive provisions" of the legislation. Congress's enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.(22)

As Justice Harry Blackmun wrote in the concurring opinion, "We resort to principles of implied preemption ... only, when Congress has been silent with respect to preemption."(23) Justice Scalia summed up the majority's view even more plainly in the dissent: "Once there is an express preemption provision ... all doctrines of implied preemption are eliminated."(24)

Where Congress has spoken to preemption directly, the courts cannot graft on a preemptive effect that Congress did not expressly provide. Because the Safety Act directly defines its effect on state law, the Cipollone decision set the stage for rejection of all implied preemption analysis under the act.(25)

Before Cipollone, the Eleventh Circuit had rejected the view that the Safety Act expressly preempted crashworthiness claims: Like other federal appeals courts, however, it found "no-air-bag" claims implicitly preempted.(26)

After Cipollone, this view was no longer tenable. In the first, and thus far only, post-Cipollone federal appellate opinion to address Safety Act preemption, the Eleventh Circuit in Myrick v. Freuhauf Corp. held that because Congress addressed preemption directly in the act, no preemptive effect beyond that expressly provided for could be inferred.(27)

Myrick was a consolidated appeal challenging the dismissal of two cases. In each case, a truck without antilock brakes had collided with a car. The results were devastating. Ben Myrick was left paraplegic and brain injured. Grace Lindsey, the victim in the second case, was killed.

The air bag regulations permitted manufacturers to choose among different of passive restraints. Similarly the federal safety standards governing truck brakes did not require a specific type of brake. Manufacturers could provide either antilock or air brakes and still be in compliance.

The trial court had granted summary judgment for the defendant truck manufacturers in both cases, finding that the Eleventh Circuit precedent that the Safety Act preempted no-air-bag claims was controlling.

But the Eleventh Circuit reversed; overruling its precedent in the process. Following Cipollone, the court held that its previous implied-preemption analysis could not stand. Congress had addressed the preemptive effect of the Safety Act in two separate provisions, one precluding inconsistent state regulations and one preserving common law liability. Thus, there was no express preemption of common law claims.

Moreover, under Cipollone, since Congress had addressed the preemptive effect of the act directly, the court "need only identify the domain expressly preempted.(28) Any consideration of implied preemption would be improper.

With persuasive analysis, the court rejected each argument for preemption.

The truck makers argued that Cipollone should not be read to mean that implied preemption should not be considered when there is an express preemption provision in a statute. Citing many cases in the circuits applying Cipollone should not be read to mean that implied preemption should not be considered when there is an express preemption provision in a statute. Citing many cases in the circuits applying Cipollone in precisely this way, the court said, "So far as we can ascertain, no circuit has yet had the temerity to tell the Supreme Court that it did not mean what it said in Cipollone, and we decline the manufactures' invitation to be the first one to do so."(29)

The manufacturers also argued that under Cipollone, implied preemption analysis was only precluded where an express preemption provision provides a "reliable indicium of congressional intent."(30) They contended that no such indication was present in the Safety Act.

Again the court referred to other post-Cipollone federal appellate cases, observing that none had found a preemption clause that did not meet this requirement. Based on the Safety Act's legislative history and the two clauses addressing preemption of regulations and preservation of common law liabilities, the Eleventh Circuit concluded that the "reliable indicium" requirement had been met.

The manufacturers next argued that Cipollone should be distinguished from the present case because the Safety Act, unlike the tobacco acts, delegates rule-making authority to a federal agency. The manufacturers argued that Congress would not intend the act's provisions to define the complete scope of preemption since future regulations were then unknown. However, finding " no indication that Congress intended to let the administrative agency decide whether ... safety standards would preempt state law", the court rejected the argument.(31)

Finally, the court declined the invitation to reconsider its precedent and find express preemption. "In the Safety Act ..., Congress did not explicitly say that common law liability was preempted, but it did explicitly say that common law liability was saved."(32) Therefore, given the high standard for finding express preemption of common law claims, the court concluded that the Safety Act could not be construed as unambiguously manifesting an intention to preempt appelants' common law claims.(33)

Beyond the Safety Act

Cipollone and Myrick make it clear that because tort liability has so long been considered in the domain of state law, there is an automatic presumption that it is not preempted by federal enactments. This precept arises from notions of federalism as old as our nation. It also represents other common law virtues pre-dating U.S. independence by centuries. the right of access to justice in the courts and the right to trial by jury.(34)

The dissent in Myrick claims that the Safety Act must be given preemptive effect in deference to Congress and laments that "the Supremacy Clause is no longer fashionable."(35) It is the dissenting judge, however, who fails to respect the expressions of Congress. The dissent argues that since the regulation at issue effectively gives manufacturers a choice of brake systems, Congress could not really have meant it when it said that compliance with standards "does not exempt any person from any liability under common law."(36)

But Congress certainly did mean what it said. In a move wholly consonant with the political climate in which the Safety Act was born, Congress chose to allow common law liability to develop, a judgment understood and respected by the courts for years. The dissent is correct that Congress has the authority to preempt state common law claims. But it is incorrect to the point of irony in refusing to respect Congress's authority to not do so.

Although the Safety Act has been reinterpreted since Cipollone to allow no air bag claims, claims that were previously held preempted under other statutes unfortunately have not fared as well.(37) For example, many opinions interpreting the Medical Devices Amendments of 1976 have continued to find preemption of claims regarding certain medical devices that had received Food and Drug Administration premarket approval.(38) And courts have split on the issue of whether the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempts common law claims for failure to provide adequate warnings on products regulated under the act.(39)

Part of this problem arises from a different holding in Cipollone - the plurality's view (with which three members of the seven-justice majority disagreed) that a provision preempting state law " requirements" or "prohibitions" call extend to common law tort claims.(40)

The better view was expressed by Justice Blackmun in his concurrence. He concluded that the phrase "no requirement or prohibition" in the 1969 cigarette labeling act was intended to preempt only positive state regulatory enactments and not common law damage claims.(41) Congress certainly knows the language of the law and can easily preempt common law claims expressly and directly where that is its intent. The courts should not stretch preemption clause language like "requirement," "prohibition", or "regulation" to encompass tort liability.

Judicial Support

The reasons for judicial support for preemption of common law claims in some areas are unclear. While preemption directly lightens the load of the judiciary, one would hope and expect that this would not be a motivating factor for judges.

Though the reasons are unclear, the effect is not. Law regarding individual and public safety, once thought to be clearly within the province of state governance, is becoming increasingly federalized. Power over safety in products and behavior is being transferred from judges and juries to bureaucrats. This is very troubling, given the relative influence of money and power over regulatory (as compared with judicial) decision making. The history of air bag regulation shows what can happen.

Congress may need to revisit some statutes and make its intention regarding tort liability clear. The courts need be true to the intent of Congress and reject preemption, express or implied, of common law claims unless Congress has unambiguously so provided.

Courts must take seriously the deference to common law that Congress showed in enacting legislation like the Safety Act. It is essential that courts uphold "the principles of federalism and respect for state sovereignty that underlie the [Supreme] Court's reluctance to find preemption" where Congress has not done so directly.(42)

Notes

(1) 112 S. Ct. 2608 (1992). See also CSX Transp., Inc. v. Easterwood, 113 S. Ct. 1732 (1993) (finding partial preemption of common law claims under the Federal Railroad Safety Act of 1970). (2) 15 U.S.C. [subsections] 1381-1431 (1988 & Supp. III 1991). (3) 13 F.3d 1516 (11th Cir. 1994), petition for cert. filed 22 Prod. Safety & Liab. Rep. (BNA) 939 (Sept. 9, 1994) (U.S. Aug. 15, 1994) (No. 94-286). Author James Gilbert represented the Attorneys Information Exchange Group as amicus in Myrick before the Eleventh Circuit. (4) The authors thank Arthur Bryant and Trial Lawyers for Public Justice (TLPJ) for providing information used in this article and for their ongoing efforts to protect consumers against the unwarranted expansion of the preemption doctrine. TLPJ has represented several individuals and amici in appeals that have raised preemption issues. (5) 15 U.S.C. [sections] 1392(d). (6) Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968) (7) See Kurt B. Chadwell, Comment, Automotive Passive Restraint Claims Post-Cipollone: An End to the Federal Preemption Defense, 46 BAYLOR L. REV. 141, 179-80 (1994) (discussing legislative history of Safety Act). (8) 15 U.S.C. [sections] 1397 (k) (1988) (formerly [sections] 1397 (c)). (9) See, e.g., Shipp v. General Motors Corp., 750 F.2d 418, 421 (5th Cir. 1985); Sours v. General Motors Corp., 717 F.2d 1511, 1517 (6th Cir. 1983); Schwartz v. American Honda Motor Co., 710 F.2d 378, 383 (7th Cir. 1983); Fox v. Ford Motor Co., 575 F.2d 774, 784 (10th Cir. 1978); General Motors Corp. v. Edwards, 482 So.2d 1176, 1198 (Ala. 1985); Buccery v. General Motors Corp., 132 Cal. Rptr. 605, 609 (Ct. App. 1976); Roberts v. May, 583 P.2d 305, 308 (Colo. Ct. App. 1978); McMullen v. Volkswagen of America, 545 P.2d 117, 120 (Or. 1976); Larsen, 391 F.2d 495. (10) See, e.g., Stephen Teret & Edward Downey, Air Bag Litigation: Promoting Passenger Safety, TRIAL, July 1982, at 93. (11) See Albert L. Karr, Saga of the Air Bag, or the Slow Deflation of a Car-Safety Idea, WALL ST. J., Nov. 11, 1976, at 1. (12) See, e.g., Chadwell, supra note 7, at 143-50. (13) See Richard M. Nixon, Oval Office, Apr. 27, 1971, White House Conversations During the Nixon administration, Records of the White House Office, National Archives and Records Administration, Washington, D.C. See also Chadwell, supra note 7, at 145-46, n.30. (14) Chrysler Corp. v. Department of Transp., 472 F.2d 659 (6th Cir. 1972). (15) Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 34 (1983). (16) Driver Deaths Down Substantially in Cars Equipped with Airbags, INS. INST. HIGHWAY SAFETY STATUS REP., Oct. 3, 1992, at 1,3. (17) 49 Fed. Reg. 28,962 (1984) (codified at 49 C.F.R [sections] 571.208) (1992). (18) Manufacturers were required to phase in passive restraints beginning with the 1987 model year. 1993 revisions to FMVSS 208 finally require air bags - 95 percent of 1997 cars and all 1998 cars must have air bags for the driver and right front passenger. (19) See James L. Gilbert, Donald H. Slavik, & Larry E. Coben, Seat Belt Litigation, TRIAL, Feb. 1993, at 19. The authors are not suggesting that it is safer to drive unbelted than to use these systems - only that they are greatly inferior to the air bag/manual three-point belt combination. People should wear their seat belts, whatever the design. (20) See Chadwell, supra note 7, at 155-56. The federal circuit court opinions finding preemption are Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir.), cert. denied, 498 U.S. 853 (1990); Taylor v. General Motors Corp.,, 875 F.2d 816 (11th Cir. 1989), cert. denied, 494 U.S. 1065 (1990), overruled in relevant part in Myrick, 13 F.3d 1516; Kitts v. General Motors Corp., 875 F.2d 787 (10th Cir. 1989), cert. denied, 494 U.S. 1065 (1990); Wood v. General Motors Corp., 865 F.2d 395 (1st Cir. 1988) (Wood II), cert. denied, 494 U.S. 1065 (1990). (21) See U.S. CONST., art. VI, [sections] 2 (Supremacy Clause). (22) 112 S. Ct. 2608, 2618 (citations omitted). (23) Id. at 2625 (citation omitted). (24) Id. at 2633. (25) See Larry E. Coben, The Tide Has Turned: Federal Preemption Cannot Defeat Motor Vehicle Design Claims, TRIAL, Jan. 1993, at 75. (26) Taylor, 875 F.2d 816. (27) 13 F.3d 1516. See also Morris v. Ford Motor Co., No. CV 93-524805 (C.D. Cal. Aug. 22, 1994). Some lower courts have disagreed, finding Safety Act preemption even after Cipollone. See, e.g., Gills v. Ford Motor Co., 829 F. Supp. 894, 897 (W.D. Ky. 1993). (28) Myrick, 13 F.3d 1516, 1521 , quoting Cipollone, 112 S. Ct. 2608, 2618. (29) 13 F.3d 1516, 1522. (30) Id. at 1525. See Cipollone, 112 S. Ct. 2608, 2618. (31) 13 F.3d 1516, 1526. (32) Id. at 1527-28. (33) Id. at 1528, quoting Taylor, 875 F.2d 816, 825. (34) See J. KENDALL PREW, IN DEFENSE OF TRIAL BY JURY (1993). (35) Myrick, 13 F.3d 1516, 1521, 1528 (Hill, Sr. Cir. J., dissenting). (36) Id. (emphasis added). (37) See generally Richard C. Ausness, Federal Preemption of State Products Liability Doctrines, 44 S.C.L. REV. 187 (1993). (38) See generally Jonathan S. Massey, Federal Preemption of Medical Device Tort Claims: Not What Congress (or the Doctor) Ordered, TRIAL, June 1994, at 58. (39) See R. David Allnut, FIFRA Preemption of State Common Law Claims After Cipollone v. Liggett Group, Inc., 68 WASH. L. REV. 859 (1993). (40) 112 S. Ct. 2608, 2619-20. (41) Id. at 2626-31 (Blackmun, J., concurring). (42) Id. at 2626.

James L. Gilbert and Stuart A. Ollanik practice law in Arvada, Colorado. They are co-authors, with Francis Hare, Jr., of Full Disclosure: Combating Stone-walling and Other Discovery Abuses (ATLAS Press 1994).