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The nation’s businesses likely will find greater success using federal laws to block state tort suits because of a U.S. Supreme Court ruling that rejected an air-bag claim. “Clearly, this whole term, and the air-bag decision in particular, is good news for people who want a reasonably expansive opportunity to use pre-emption to displace state laws of various kinds,” says Charles Rothfeld, of the Washington, D.C., office of Chicago’s Mayer, Brown & Platt, which filed an amicus brief in the air-bag case on behalf of the pro-business Product Liability Advisory Council. The court on May 22 ruled 5-4 that a defective-design suit brought by Alexis Geier and her parents against American Honda Motor Co. could not go forward because it was pre-empted, or blocked, by a federal safety standard. Geier v. American Honda Motor Co., No. 98-1811. Had Geier gone the other way, the auto industry would have faced potential liability in thousands of lawsuits by individuals injured in cars built before air bags became mandatory. Geier was seriously injured in 1992 when her 1987 Honda Accord collided with a tree. She sued American Honda for negligent and defective design of the car because the vehicle lacked an air bag. In sorting through Honda’s pre-emption defense, the high court examined two seemingly inconsistent provisions of the 1966 National Traffic and Motor Vehicle Safety Act, which authorizes the secretary of transportation to prescribe nationwide safety standards for motor vehicles. The standard at issue in Geier was Standard 208, which was amended in 1984 to encourage carmakers to install air bags before September 1997 and to require them thereafter. The 1966 act contains a so-called express pre-emption provision, which, Justice Stephen G. Breyer wrote, reflects Congress’ desire to subject the auto industry to a single, uniform set of safety standards by displacing all state standards. But the act also has a so-called saving clause, which says that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” The court rejected Honda’s express pre-emption argument because of the saving clause. That clause, Breyer wrote, “assumes that there are some significant number of common-law liability cases to save.” PRIVATE ACTIONS? But did that clause “save” Geier’s type of suit? The majority held that it did not because the tort suit conflicted with the purpose of Standard 208, which is meant to encourage auto manufacturers to use a mix of passive-restraint devices, including air bags. When that type of conflict occurs, the court held, the state law or claim is impliedly pre-empted. Breyer suggested that some air-bag suits might survive pre-emption, such as when a particular kind of car design requires air bags as the only possible safety device. And a suit seeking to impose that requirement could escape pre-emption because it would affect so few cars as to create no legal “obstacle” to the objective of Standard 208. Dissenting, Justice John Paul Stevens, joined by justices Clarence Thomas, David Souter and Ruth Bader Ginsburg, said that the majority’s approach had the practical effect of “reading the saving clause out of the statute altogether.” Stevens warned that “a vast, undefined area of state law” is left vulnerable to pre-emption by the combination of the majority’s rejection of the court’s historical presumption against pre-emption and its adoption of an implied pre-emption based on the frustration of a law’s purpose. NARROW IMPACT SEEN But the Geiers’ counsel, Arthur Bryant, the executive director of Trial Lawyers for Public Justice, in Washington, D.C., predicts that the decision will have a narrow impact. “While it is a horrible outcome for the Geiers and tens of thousands of similarly situated crash victims, the truth is it will not harm other cases involving autos and certainly won’t harm cases that don’t involve autos,” he says. Bryant notes Breyer’s suggestion that some air-bag suits will survive pre-emption. “There are cases out there; how many, I can’t tell you,” he says. And he expects the ruling to help plaintiffs in other types of cases, especially those in which a federal agency has taken a consistent and long-standing policy position, as did the Department of Transportation in Geier. “We have boat propeller-guard cases, and the government’s position is the Boat Safety Act doesn’t pre-empt propeller-guard claims,” he says. “I expect this decision to help us there.” More troubling, he claims, is the court’s “free-wheeling” concept of preemption based on frustration of a federal law’s purposes. “Four members of the court didn’t want to do it all, and five did it only in the narrowest way.” Not surprisingly, Honda’s high court counsel, Malcolm E. Wheeler, of Denver’s Wheeler Trigg & Kennedy, sees the decision differently. “I think there now is no room for ‘no air bag’ lawsuits until the years in which they were actually required by federal law — Sept. 1, 1997, for passenger cars,” he says. The decision, he says, gives “tremendous clarity” to the contours of implied preemption, which the plaintiffs’ bar had declared dead prematurely after a major pre-emption ruling involving cigarettes, Cippolone v. Liggett Group, 505 U.S. 504 (1992). Business now knows that it has no special burden of proof in these cases, he says, and an agency’s position, which has been consistent and long-lasting, will receive considerable deference. That deference is important in another way, says pre-emption scholar Betsy J. Grey, of Arizona State University College of Law. “What’s going on in Geier, and what didn’t happen in the court’s last three major pre-emption rulings, is that we are moving far away from congressional intent, which has always been the touchstone in pre-emption,” she says. “Here, we’re talking about implied pre-emption — displacing a state tort remedy, not by Congress, but by a temporary agency regulation,” she says. “The biggest impact, or the scariest thing to me, is giving so much weight to an agency regulation. Even if Congress puts in this kind of saving clause, the agency can sort of undo what Congress probably intended to do.” The narrowness of the ruling, she and other scholars add, also reflects the overlay of federalism in the pre-emption area. There is an obvious disconnect between the court’s recent pre-emption cases — generally displacing state laws — and many of its recent commerce clause and 11th Amendment cases — generally protecting state laws and powers. “You could say it’s just a question of interpreting what Congress did on the one, and on the other, it’s interpreting the Constitution,” suggests Mayer Brown’s Rothfeld. “But clearly, a difference in values is being applied.” In the end, he and others agree, pre-emption remains one of the court’s most contentious areas of the law. “There’s never going to be a definitive rule that answers all pre-emption questions,” says Rothfeld. “There’s always going to be a statute, and the analysis is going to be case-specific.” But the court’s approach is important and will reveal whether a party raising the pre-emption defense is generally more likely to prevail, he adds. Because of Geier, he says, “People arguing for pre-emption today are more likely to win than they were six months ago.”

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