By: David R. Lira and Martin N. Buchanan
The Doctrine of Preemption presents a potent defense/obstacle in product liability lawsuits. The Doctrine of Preemption is complicated and misunderstood by many courts as is evident from the patchwork of published cases throughout the country. Historically, a state law claim will be "preempted" if it stands as an obstacle to the objectives of a federal law/regulation. A vast array of consumer products are regulated by federal safety standards such as automobiles, pharmaceutical drugs, medical devices, child safety seats and cribs, to name a few. Hence, a number of federal agencies are implicated, such as the National Highway Traffic Safety Administration, the Food and Drug Administration, the Consumer Product Safety Commission.
Recently, the U.S. Supreme Court issued two blockbuster wins for consumers in the highly publicized decisions in Wyett v. Levine (2009) 129 S.Ct. 1487 and Williamson v. Mazda Motor of America, Inc. (2011) 131 S.Ct. 1131. Despite wins for big business in AT&T Mobility LLC v. Concepcion (2011) 131 S. Ct. 1740, and Wal-Mart Stores, Inc. v. Dukes (2011) 131 S. Ct. 2541 during the 2010 terms, the authors of this article were fortunate enough to achieve a surprisingly unanimous victory for consumers in Williamson. Ruling in a products liability case that was filed by Girardi | Keese in the California courts, the Williamson Court held that a seatbelt defect claim under state common law was not preempted by federal motor vehicle safety standards. This article explores the Williamson decision and its implications for future preemption cases.
In 2002, Delbert Williamson and his wife, Thanh Williamson, were traveling with their daughter Alexa in their 1993 Mazda MPV Minivan. When the vehicle was manufactured, the applicable 1989 version of Federal Motor Vehicle Safety Standard 208 ("FMVSS 208") required installation of lap/shoulder seatbelts in the outboard rear passenger seats, but permitted either lap/shoulder or lap-only belts in rear-center seats and the aisle seats of multi-passenger vehicles. The Williamsons' minivan was equipped with only a lap belt in the aisle seat of the middle row.
Mr. Williamson was driving the van, Mrs. Williamson was seated in the middle row aisle seat, and Alexa was seated immediately to her left. Mr. Williamson and Alexa were both wearing the lap/shoulder seatbelts installed in their seating positions. Mrs. Williamson was wearing the lap-only seatbelt installed in her seating position.
A motor home towing a jeep was traveling in the opposite direction. Suddenly, the jeep became detached from the motor home, crossed into oncoming traffic, and struck the Williamsons' van. Mrs. Williamson was killed when the forces of the collision caused her body to jackknife around her lap-only seatbelt, resulting in severe abdominal injuries and internal bleeding. Her injuries were consistent with something known as "seat belt syndrome," which occurs when a passenger restrained by only a lap belt jackknifes over at the waist due to the force of the collision. Mr. Williamson and Alexa suffered non-fatal injuries.
State Court proceedings
Mrs. Williamson's survivors and her estate filed suit in Orange County Superior Court, asserting state tort claims including strict products liability and negligence. They alleged that Mazda should have equipped Mrs. Williamson's seat with a lap/shoulder belt to restrain the passenger's upper torso in a frontal collision.
In the state court proceedings, Mazda asserted that the Williamsons' common law claims were impliedly preempted by federal law because Mazda had complied with one of the permissible seatbelt options authorized by FMVSS 208 for aisle seating positions. According to Mazda, the Williamsons' seatbelt claims frustrated the purposes and objectives of federal law because they effectively foreclosed a seatbelt option expressly authorized by FMVSS 208. Judge Michael Brenner agreed with Mazda and dismissed the lawsuit.
On appeal, the California Court of Appeal for the Fourth Appellate District, Division Three, affirmed the judgment in favor of Mazda. (Williamson v. Mazda Motor of America, Inc. (2008) 167 Cal.App.4th 905) In a unanimous opinion authored by Justice William F. Rylaarsdam, and joined by Justices David G. Sills and Raymond J. Ikola, the court held that the plaintiffs' claims were impliedly preempted under Geier v. American Honda Motor Company, Inc. (2000) 529 U.S. 861. In Geier, the U.S. Supreme Court had ruled 5-4 that an earlier 1984 version of FMVSS 208 impliedly preempted a state tort suit alleging that Honda should have installed an airbag in the driver's seat of a 1987 Honda. Based on the contemporaneous history of the 1984 regulation, the Geier majority found that the objective of the regulation was to achieve a gradually developing mix of different passive restraint types, in order to prevent a public backlash against airbags and encourage development of a variety of alternative passive restraint systems. Thus, Geier's claim that Honda's entire fleet should have been equipped with airbags was impliedly preempted because it would have frustrated and stood as an obstacle the agency's purposes and objectives.
The California Court of Appeal ruled that the same reasoning applied to the Williamsons' seatbelt claims. According to the California court, these claims conflicted with federal law because they would bar manufacturers from employing one of the passenger restraint options authorized by FMVSS 208. The California court also found persuasive several other federal and state decisions that had previously reached the same result. (Carden v. General Motors Corp. (5th Cir. 2007) 509 F.3d 227; Roland v. General Motors Corp. (Ind.Ct.App. 2008) 881 N.E.2d 722; Heinricher v. Volvo Car Corp. (Mass.Ct. App. 2004) 809 N.E.2d 1094)
The U.S. Supreme Court grants Certiorari
After the California Supreme Court denied review, a petition for writ of certiorari was filed on behalf of the Williamsons. Although there was no conflict on the seatbelt preemption issue in the lower courts, it was argued that certiorari should be granted because the lower courts had consistently misread Geier by giving it an overly broad interpretation.
Before granting certiorari, the U.S. Supreme Court issued an order soliciting the views of the Solicitor General. In December 2009, presentations were made by the parties to the Solicitor General and representatives of the Department of Justice ("DOJ"), Department of Transportation ("DOT"), and National Highway Traffic Safety Administration ("NHTSA"), seeking to persuade them to support their respective positions. In April 2010, then Solicitor General Elena Kagan, joined by counsel for DOJ, DOT, and NHTSA, filed a brief in support of the Williamsons, arguing that the lower courts had given too broad a reading to Geier. In May 2010, the U.S. Supreme Court granted certiorari. After being appointed to the Supreme Court in August 2010, Justice Kagan recused herself from the case because of her earlier participation as Solicitor General.
The U.S. Supreme Court's decision
Based on the current composition of the Roberts Court, virtually all of the pundits and experienced Supreme Court watchers predicted a 5-3 victory for Mazda or a 4-4 split decision, which would have left the California Court of Appeal's ruling intact. On February 23, 2011, however, the Court defied the experts by ruling 8-0 in favor of the Williamsons. (Williamson v. Mazda Motor of America, Inc. (2011) 131 S. Ct. 1131) The majority opinion was authored by Justice Breyer, who was also the author of Geier. Justices Sotomayor and Thomas each wrote separate concurring opinions.
Justice Breyer's opinion acknowledged that the case was similar to Geier because the seatbelt regulation "leaves the manufacturer with a choice" and "the tort suit here would restrict that choice." (Id. at p. 1137) However, the Court distinguished Geier on the ground that providing manufacturers with a seatbelt choice was "not a significant objective of the federal regulation" (id. at p. 1134), whereas "giving manufacturers a choice among different kind of passive restraint devices was a significant objective of the federal regulation" at issue in Geier. (Id. at p. 1136)
Examining the contemporaneous history of the 1989 seatbelt regulation published in the Federal Register, the Court first noted the agency was concerned that lap/shoulder belts could cause entry and exit problems for occupants of seating positions to the rear by stretching the shoulder belt across the aisleway. However, the agency had specifically encouraged manufacturers to address this problem through innovation, and the Court found "little indication that DOT considered this matter a significant safety concern." (Id. at p. 1138)
The Court next turned to the "more important reason" why the agency did not require lap/shoulder belts for rear center and aisle seats-that the agency believed such a mandate "would not be cost-effective" because it would be "significantly more expensive" to install lap/shoulder belts at those seating positions. (Id. at p. 1139) For several reasons, however, the Court ruled that the agency's "negative judgment about cost effectiveness" was not sufficient to preempt state common law. (Ibid.) First, the agency "did not believe that costs would remain frozen" and had even "pointed out that costs were falling." (Ibid.) Second, "many, perhaps most, federal safety regulations embody some kind of cost-effectiveness judgment." (Ibid.) If that alone were sufficient to preempt state common law, then all federal safety standards would effectively be treated as maximum standards, eliminating the possibility of a minimum standard potentially supplemented through state tort law. (Ibid.) The Court could not reconcile this result with the savings clause of the National Traffic and Motor Vehicle Safety Act, which provides: "Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law." (49 U.S.C. § 30103(e)) According to the Court, the savings clause "foresees the likelihood of a continued meaningful role for state tort law." (Ibid.)
Finally, the Court relied on the Solicitor General's view that the Williamsons' claims were not preempted. The Court noted that the Solicitor General's position was consistent with the position taken by the government in prior cases-that "a standard giving 'multiple options for the design of' a device would not pre-empt a suit claiming that a manufacturer should have chosen one particular option, where 'the Secretary did not determine that the availability of options was necessary to promote safety.'" (Ibid.)
Justice Sotomayor wrote a separate concurring opinion "only to emphasize the Court's rejection of an overreading of Geier that has developed since that opinion was issued"-the view adopted by many lower courts "that any time an agency gives manufacturers a choice between two or more options, a tort suit that imposes liability on the basis of one of the options is an obstacle to the achievement of a federal regulatory objective and may be pre-empted." (Id. at p. 1140) Justice Sotomayor stated: "[C]ourts should only find pre-emption where evidence exists that an agency has a regulatory objective-e.g., obtaining a mix of passive restraint mechanisms, as in Geier-whose achievement depends on manufacturers having a choice between options." (Ibid.)
Justice Thomas authored another concurring opinion stating that the issue should have been resolved simply by applying the savings clause. He expressed his longstanding opposition to the whole "frustration of purposes" theory of implied conflict preemption. (Id. at pp. 1141-1143)
Notably, Williamson was the only unanimous preemption case of the entire Term. In all four of the other preemption cases decided in the 2010 Term, the conservative wing of the Court prevailed over dissenting opinions by more liberal Justices.
The lessons of Williamson
There are several important lessons of the Williamson decision. First, as Justice Sotomayor articulated most clearly, the Court rejected a widespread misreading of Geier that had taken hold in the lower courts-that a state common law claim is impliedly preempted whenever it would impose liability against a manufacturer for choosing one of several alternative equipment options permitted by a federal safety regulation. Under Williamson, such a claim is preempted only if the contemporaneous history of the regulation affirmatively establishes that the agency "sought to maintain manufacturer choice in order to further significant regulatory objectives." (Id. at p. 1139)
Second, although the Court did not define what it meant by "significant regulatory objectives," the opinion makes clear that an agency's decision not to mandate a particular safety requirement solely for cost-benefit reasons ordinarily will not have preemptive force. Although the Court did acknowledge that "an agency could base a decision to pre-empt on its cost-effectiveness judgment," it strongly suggested that the agency would have to make a clear record of the fact that it "sought to forbid common-law suits in which a judge or jury might reach a different conclusion." (Id. at p. 1139)
Third, Williamson preserved the basic analytical approach of the Geier decision for adjudicating these types of issues. Although some amici argued that Geier should be overruled or narrowed, only Justice Thomas expressed any sympathy for this view. Thus, in determining whether a state common law claim is impliedly preempted on the ground that it frustrates the purposes or objectives of a federal regulation, the courts will continue to examine "the regulation's history, the agency's contemporaneous explanation, and its consistently held interpretative views." (Id. at p. 1139)
Finally, Williamson underscores the importance of focusing on the regulatory history actually at issue in the case, rather than drawing overly broad conclusions from prior cases addressing different regulatory histories. For example, following the Geier decision, many lower courts erroneously attributed the objectives of the 1984 airbag regulation to the 1989 seatbelt regulation, sometimes without even referring to the 1989 regulatory history. As Williamson concluded, however, the 1984 regulatory history "differed considerably" from the 1989 regulatory history. (Id. at p. 1137) Thus, in litigating these issues, lawyers must identify the specific version of the regulation in effect when the product was manufactured and carefully analyze the corresponding regulatory history in the Federal Register.
The ramifications of Williamson
The 1989 regulation at issue in Williamson is no longer in effect. As of 2007, all passenger vehicles must now have lap/shoulder belts in all rear seating positions. However, there are still many passenger vehicles manufactured prior to 2007 that have only lap belts in the center and aisle seating positions. In 2008, NHTSA estimated that there were over 1 million vehicles in the United States equipped with only a lap belt in some seating position. Thus, the Williamson decision could apply to many vehicles still on the road.
The Williamson decision also applies to other types of federal safety regulations that give manufacturers different options for compliance. For example, prior to Williamson, there was a conflict in the lower courts over whether FMVSS 205 preempted claims against vehicle manufacturers for installing tempered rather than laminated glass windows. Some courts concluded that such lawsuits were preempted simply because they foreclosed one of the options permitted by FMVSS 205. (See, e.g., Morgan v. Ford Motor Co. (W. Va. 2009) 680 S.E.2d 77, 94-95 ["We ... find that because the NHTSA gave manufacturers the option to choose to install either tempered glass or laminated glass in side windows of vehicles in FMVSS 205, permitting the plaintiff to proceed with a state tort action would foreclose that choice and would interfere with federal policy"]; accord Lake v. Memphis Landsmen, L.L.C. (Ct. App. Tenn. March 5, 2010) 2010 WL 891867, *7)
Other courts found these types of window glazing claims not to be preempted. (See, e.g., O'Hara v. General Motors Corp. (5th Cir. 2007) 508 F.3d 753, 759-763; MCI Sales and Service, Inc. v. Hinton (Tex. 2010) 329 S.W.2d 475, 495-499 (Hinton); Raley v. Hyundai Motor Co. (W.D. Okla. Jan. 14, 2010) 2010 WL 199971, *4; Spruell v. Ford Motor Co. (W.D. Ark. Apr. 1, 2008) 2008 WL 906648, *2; Burns v. Ford Motor Co. (W.D. Ark. 2008) 2008 WL 222711, *2-3)
In light of Williamson, it is clear that such claims are preempted only if providing manufacturers with a choice between tempered and laminated glass was "a significant objective of the regulation." (Williamson, supra, 131 S. Ct. at p. 1134) Shortly after deciding Williamson, the U.S. Supreme Court vacated a judgment of the South Carolina Supreme Court that had found such a claim to be preempted and remanded the case for further consideration in light of Williamson. (Priester v. Ford Motor Co. (2011) 131 S. Ct. 1570) In the wake of Williamson, at least one court has found that these types of window glazing claims are not preempted by FMVSS 205. (Bernal v. Daewoo Motor America, Inc. (D. Ariz. June 2, 2011) 2011 WL 2174890, *11-14)
The Williamson decision will likely reverberate in other areas of the law as well. In particular, the Court's clarification that a federal agency's cost-benefit calculus is usually insufficient to preempt state tort law is a significant holding that fortifies the Court's similar ruling in Sprietsma v. Mercury Marine (2002) 537 U.S. 51. In Sprietsma, the plaintiff sued a boat manufacturer for failure to install a propeller guard. Before the boat was manufactured, however, the Coast Guard had made a carefully considered decision not to mandate boat propeller guards based on studies and "available data" regarding the costs, technical feasibility, and relative safety benefits. (Id. at pp. 61-62, 66-67) Because the Coast Guard's cost-benefit analysis did "not convey an 'authoritative message' of a federal policy against propeller guards" (ibid.), the Supreme Court found that the plaintiff's tort claim was not preempted. In Williamson, Mazda argued that Sprietsma was inapplicable because it involved an agency's decision not to adopt any safety regulation in the area, whereas Williamson involved an agency decision to adopt a safety regulation on rear seatbelts, but not to mandate lap/shoulder belts for some seating positions. Although the Williamson opinion curiously did not mention Sprietsma, it nevertheless confirms that cost-benefit decisions usually do not have preemptive effect even if the agency has regulated in the area.
Taken together, Williamson and Sprietsma should make it difficult for manufacturers to argue implied obstacle preemption based on a federal agency's decision not to mandate a safety device solely for cost-benefit reasons. The mere fact that a federal agency has made its own cost-benefit judgment does not necessarily establish that it "sought to forbid common-law tort suits in which a judge or jury might reach a different conclusion." (Williamson, supra, 131 S. Ct. at 1139) This principle could become important in a wide variety of other types of products liability cases involving federally regulated products.
Practical considerations for the trial lawyers
It is prudent to "preempt" the manufacturers' defense of "compliance" with the Federal regulation at issue, such as the FMVSS, by filing a motion in limine excluding such a defense. It can be argued that such a defense is preempted by State common law. The success of such a motion has been mixed, but should be considered given the potency of a "compliance" defense.
David R. Lira is a trial lawyer at Girardi & Keese, Los Angeles, specializing in product liability lawsuits. He is a Fellow in the International Academy of Trial Lawyers and a member of ABOTA.
Martin N. Buchanan is an appellate specialist in San Diego who briefed and argued the Williamson case in the United States Supreme Court. You can find more information about Martin on his website at www.martinbuchanan.com.