Cross-posted from ACSblog.
The Supreme Court will hear arguments on November 3 in a potentially important preemption case, Williamson v. Mazda Motor of America. In Williamson, a child was fatally injured in a collision when she was sitting in the center rear seat of a Mazda van, secured by a lap belt. The two other passengers in the vehicle, both wearing lap-shoulder belts, survived with minor injuries. The young Williamson, however, suffered severe abdominal injuries and internal bleeding because her body jackknifed around the lap belt. The Williamsons sued Mazda asserting that the van was defectively designed by providing only a lap belt in the center rear seat. When the van was built, the National Highway Transportation Safety Administration’s Federal Motor Vehicle Standard (FMVSS) 208 only required lap belts in the center seat, even while it required lap-shoulder belts in all other seats. Mazda moved to dismiss the case on the grounds that the common law tort claim was preempted by the federal standard. The California trial court granted the motion and the appellate court affirmed. The Supreme Court granted certiorari to consider that decision.
This is not the first time that the Supreme Court has considered the relation between FMVSS 208 and state tort law. In Geier v. American Honda Motor Co. (2000), the Court held that FMVSS 208 at the time of that case preempted a state tort law claim that the failure to provide for an airbag was a design defect. Since that case, virtually every tort claim based on an alleged design defect regarding seat belts or airbags has been dismissed as preempted in light of the Geier decision. Thus, the outcome in Williamson in the lower courts is not surprising. What is surprising is that the Supreme Court granted certiorari to hear the case.
There are two possible explanations. First, unlike Geier, in which the United States filed an amicus brief in favor of preemption, here the United States filed an amicus brief in favor of granting certiorari, arguing that the lower courts had misread Geier and applied it much more broadly than appropriate. Second, on the merits, the United States is absolutely correct; Geier was a very fact-specific case, which subsequent courts have misread.
In Geier, the plaintiffs were arguing that an auto manufacturer’s failure to provide airbags in 1987 was a design defect. At that time, the 1984 version of the FMVSS 208 was in effect. Not only did it not require airbags to be installed, but the Department of Transportation had considered and rejected requiring airbags, instead opting to allow manufacturers to comply with a variety of passive restraints, and even these were to be phased-in over a period of years. The Department expressed the belief that this gradual approach toward passive restraints would most effectively result in increased penetration in the market of these devices as well increased acceptance and use by the public.
The Supreme Court noted that there is an express preemption clause in the National Highway Safety Act, preempting all state auto safety standards that are not identical to the federal standard, but that there is also an express savings clause, stating that compliance with a federal standard “does not exempt any person from any liability under common law.” The savings clause, however, the Court said, only exempted common law actions from the express preemption provision; it did not eliminate the possibility of implied conflict preemption – that is, there was still the possibility that state common law might frustrate the accomplishment of a federal objective. In Geier, the Court found that the 1984 FMVSS 208 had a particular and peculiar history. While FMVSS 208 did not foreclose manufacturers from installing airbags immediately, the Court held that it reflected a federal determination that motor vehicle safety would be best accomplished by not requiring all cars to be equipped with airbags at once, but that a phased-in approach would best further federal objectives. To allow state common law to find liability for failure to provide airbags when the Williamson’s van was built would frustrate the federal objective, and therefore claims of design defect for failure to provide airbags were impliedly preempted.
Subsequent cases in lower courts, as well as Williamson, tended to read Geier for the proposition that, if the Department of Transportation had considered and rejected a particular requirement, such as a requirement for lap-shoulder belts in center rear seats, on the grounds that the cost outweighed the risks, any state common law claim challenging a manufacturer’s failure to provide the particular safeguard would be preempted as frustrating a federal objective. This reads Geier more broadly than necessary, to say the least, and it has the effect of broadly insulating auto manufacturers from wrongful injury liability simply by complying with minimum federal motor vehicle safety standards. As CPR Scholars have argued previously, this is not only bad law, but bad policy.
For those who believe that Geier was wrongly decided, much less that the lower courts have interpreted it too broadly, this grant of certiorari seems to provide a ray of hope. Nevertheless, they should not get their hopes up too high. Geier itself was a 5-4 decision, but not strictly along “liberal/conservative” lines. Justice Breyer wrote the majority opinion that was joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, and Kennedy. The dissent was written by Justice Stevens, joined by Justices Souter, Ginsburg, and Thomas.
How might the new cast of characters affect the outcome in Williamson? Justice Stevens has been replaced by Justice Kagan, but she has recused herself from Williamson because she was involved in the amicus brief for the United States supporting the grant of certiorari. Justice Thomas, who dissented in Geier and most recently called for elimination of conflict preemption altogether in Wyeth v. Levine (2009), and Justice Ginsburg, who also dissented in Geier, presumably would vote against preemption in Williamson. Chief Justice Roberts and Justices Alito and Scalia, on the other hand, have all tilted in favor of federal preemption of state tort law in recent cases, and so they might be predicted to vote in favor of preemption in Williamson. That leaves Justices Sotomayor, Kennedy, and Breyer. Given Justice Kagan’s recusal, it would take all three aligning with Justices Thomas and Ginsburg to reverse Williamson. While Justice Breyer wrote the majority opinion in Geier, he is known for his deference to expert agencies, and in Williamson, unlike in Geier, the expert agency is taking the position that it has only set a minimum standard, allowing state tort law to find liability for an auto manufacturer’s failure to provide the lap-shoulder belt. Thus, Justice Breyer may well find no preemption in Williamson. Justice Sotomayor has little track record on preemption of state tort law, so she is a wild card, but if the rest of the “liberal” wing inclined to no preemption, this might influence her in that direction. Finally, there is Justice Kennedy. While he was with the majority in Geier in favor of preemption, in Wyeth he cast his vote against preemption. Thus he too is something of a wild card.
Geier will not be overruled. The question is whether the Court will limit Geier to its particular facts or will approve of the broader reading the lower courts have taken. This commentator will hazard a prediction of 5-3 in favor of limiting Geier. Such an outcome would be welcome news for victims of dangerous products. Not only would it re-open the door to tort suits in automobile design cases, but it would also signal that the Court has, at least for the time being, reaffirmed the presumption against preemption in a meaningful way.