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A federal agency’s proposal to strengthen roof crush resistance standards for certain vehicles would pre-empt state court lawsuits against automakers that comply. Whether automakers should get that protection—recently proposed by the National Highway Traffic Safety Administration (NHTSA)—is the subject of fierce debate among lawyers. But the agency probably has the authority to shield automakers from state tort liability, legal experts say. The lawsuit protection would take effect three years after the final rule is formally adopted by the NHTSA, which is expected in February. “Under most statutes, sure the agency can do it,” said administrative law specialist Richard Pierce, a professor at the George Washington University Law School in Washington. Plaintiffs’ bar protests The controversial proposed standards don’t sit well with the plaintiffs’ bar, which charges that the rules are a give-away to an industry that has consistently fought safety standards. “The concept of the stronger roof standard is a great idea and it’s long overdue, but the standard should not immunize manufacturers from liability,” said plaintiffs’ attorney Jeff Wigington of Corpus Christi, Texas’ Wigington Rumley, who has tried many rollover cases. “The fact that a vehicle merely meets a governmental minimum standard does not mean that it’s safe or nondefective.” Rollover defense specialist Richard Bowman of Minneapolis-based Bowman and Brooke, who has defended General Motors Corp., Toyota Motor Corp., Ford Motor Co., Honda Motor Co. and Nissan Motor Co., said pre-emption “is dynamite stuff, a dramatic new development.” “NHTSA is taking a very aggressive stance,” he said. “I see nothing on the regulatory screen or in the courts that says they’re not going to enforce this.” The Alliance of Automobile Manufactures, an auto industry trade association, declined to comment on the pre-emption aspect of the proposed rules. But the industry has long sought legislation that makes meeting federal standards a complete defense to civil actions. The alliance said in a press release that it is in the process of reviewing the “possible changes” to the roof safety standards. Neither its press release nor NHTSA’s makes mention of state pre-emption. The first mention of it is on page 82 of the 93-page proposed rules, which are open for public comment for 90 days from Aug. 19, when the proposal was issued. “It’s not the first time we’ve included pre-emption in a regulation,” said Rae Tyson, a NHTSA spokesman. The proposed rules, which would replace standards set in 1971 for cars, would apply to large sport utility vehicles and pickup trucks for the first time. The new standards, which the majority of vehicles already meet, do not address the tendency of certain vehicles to roll over more than others-just the amount of force a roof should be able to withstand before a crushed portion comes into contact with the head of a male occupant of average height during a rollover. States would also be pre-empted from enacting standards that differ from those adopted by the NHTSA, an agency of the U.S. Department of Transportation. Bowman said the new roof-reinforcement standards are unnecessary. He claimed that by the time a roof collapses, the injury has already occurred for most of the relatively few seat-belted people who are killed or who break their necks. He said that like pile drivers, their pelvises have already driven their heads into an intact roof. “The problem is headroom, not roof structure,” Bowman said. Wigington strenuously disagrees. “In the case of an accident involving massive roof crush, if the seat belt does its job it holds you in position so that the roof can crush your head,” Wigington said. NHTSA predicts that the new standards, which would apply to vehicles that weigh up to 10,000 pounds-up from 6,000-would save an estimated 13 to 44 lives each year, and prevent 500 to 800 injuries. About 10,000 people are killed in rollovers of light vehicles and 24,000 people are seriously injured in the 273,000 nonconvertible rollovers each year, according to NHTSA data. Of these, the agency says that 596 fatalities and 807 serious injuries occur from roof contact with those wearing seat belts.

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