Fifth Circuit rejects preemption in auto glass case.

In a long-sought victory for plaintiffs in auto products liability cases, the Fifth Circuit has ruled that a crash victim's state law claims against General Motors (GM) are not preempted by federal law. The unanimous opinion found that federal safety regulations do not bar a plaintiff's claims that a car manufacturer was liable for her injuries because it used tempered glass in its windows instead of a sturdier alternative, such as laminated glass. (O'Hara v. General Motors Corp., 2007 WL 4105758 (5th Cir. Nov. 20, 2007).)

"This ruling verifies everything we've been saying [about preemption in auto cases] for years," said Gerie Voss, AAJ's regulatory counsel.

And Patrick Ardis, a lawyer in Memphis who represented the O'Hara plaintiffs, said, "This is also a victory for a little girl who was horribly maimed and truly innocent."

In 2004, Chad and Michelle O'Hara's daughter, then nine years old, was hurt when she was thrown out of the family's Chevrolet Tahoe during a rollover accident. The Tahoe, which was traveling at roughly three mph, fell on her and severely injured her arm. The O'Haras sued GM, the Tahoe's maker, saying their daughter would not have been ejected if the carmaker had used a newer, more advanced type of glass instead of tempered glass in the car's side windows.

Industry and government tests have found that laminated glass is a reasonable, cost-effective alternative to tempered glass--and far safer, because it does not shatter. (Paul J. Komyatte, Automakers Gloss over Glass Defects, TRIAL 42 (Nov. 2004), www.justice.org/publications/trial/ 0411/komyatte.aspx.)

GM removed the case to federal court and filed a motion to dismiss, saying the O'Haras' claims were preempted by federal law. GM's argument centered on two regulations established by the National Highway Traffic Safety Administration (NHTSA): Federal Motor Vehicle Safety Standard (FMVSS) 205, which concerns car window glass, and FMVSS 208, which governs general passenger safety and attempts to reduce ejection from cars. GM cited the 2000 Supreme Court ruling in Geier v. American Honda Motor Co., which found that FMVSS 208 preempted state common law claims. (529 U.S. 861 (2000).)

The district court granted summary judgment to GM. In their appeal, the O'Haras argued that FMVSS 205 differs markedly from FMVSS 208, because the former establishes only a "minimum safety standard" for auto glass; in fact, in 2002 NHTSA withdrew a requirement that carmakers use laminated glass, except in windshields.

The O'Haras noted that FMVSS 208, by contrast, sets out clear options for manufacturers' compliance rather than a minimum safety requirement. They cited a Supreme Court ruling that found that the U.S. Coast Guard's decision not to require propeller guards in boats did not preempt state law negligence claims. (Sprietsma v. Mercury Marine, 537 U.S. 51 (2002).) The O'Haras argued that FMVSS 205 and the Coast Guard rule were similar.

Writing for the Fifth Circuit, Judge Edith Brown Clement called this line of reasoning "compelling" and said the language of FMVSS 208--the underpinning of Geier--"strongly supports the conclusion that it expresses a federal policy which would be frustrated by lawsuits seeking to establish common law rules to the contrary." And, Clement wrote, "because we find that FMVSS 205 differs significantly from FMVSS 208 and does not establish a federal policy which would be frustrated by a state common law rule requiring advanced glazing in side windows, we hold that the O'Haras' claim is not preempted."

Ardis said the ruling represents a "major legal victory in an arena where I've been battling for 17 years," referring to his work on behalf of plaintiffs in laminated-glass cases. He noted that roughly 40 percent of American cars now use laminated glass in their side windows and said, "My position is simple: Let's just do this right. Let's make these cars as safe as we can."

Voss said the decision "makes it clear that Geier is unique, that defendants cannot use it to substantiate a preemption claim."

She noted that AAJ has filed with NHTSA several safety-related comments to proposed rules and numerous petitions for reconsideration of final rules.

In partially reversing and partially affirming the district court ruling, the Fifth Circuit also allowed the O'Haras' claims of deceptive marketing and failure to warn to proceed, along with their claim that GM failed to comply with FMVSS 205. It affirmed one of the district court's dismissals--of their alternative design claim--because "although it was adequately pled ... the alternative designs proposed by the O'Haras ... are not actually tempered glass designs."

Public Justice, a consumer advocacy group, filed an amicus brief in the case. In a statement, Public Justice lawyer Leslie Bailey called the ruling "an extremely thoughtful and well-reasoned decision that will be a model for other appellate courts facing this issue."

"The ruling could help to reverse the recent trend where defendants argue preemption of every claim based on Geier, because now they may not have a leg to stand on," Voss said. "For consumers seeking justice, this is excellent ammunition."