____________________________________________________________
IN THE COURT OF APPEALS, STATE OF GEORGIA
No. A01A0050
TAMMY DUREN, INDIVIDUALLY, AS ADMINISTRATRIX
OF THE ESTATE OF PEYTON DUREN, DECEASED, AND AS SURVIVING
SPOUSE OF PEYTON DUREN
Appellants,
v.
PACCAR, INC.
Appellee.
____________________________________________________________
AMICUS CURIAE BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION
____________________________________________________________
The Georgia Trial Lawyers Association (GTLA) respectfully submits
this Amicus Curiae Brief to the Court.
STATEMENT OF INTEREST
The GTLA is a voluntary organization comprised of approximately
2,700 trial lawyers licensed to practice in Georgia whose clients
have an interest in this Court’s rulings on the important issues
presented by this appeal. GTLA’s interest in this case
is the preservation of the jury system for resolving tort disputes
involving defective products, which would be imperilled by expansion
of the doctrine of implied conflict preemption in the cavalier manner
advocated by amicus Product Liability Advisory Council, Inc. (PLAC).
SUMMARY OF POSITION
GTLA submits that state product liability claims should not be impliedly
preempted, as conflicting with a federal objective, unless there is
clear evidence that the federal government or agency deliberately
established such an objective and that allowing the specific tort
theory to be presented to a jury would conflict with that policy.
GTLA submits that a deliberate policy that a State shall not require
safety features such as the antilock braking system (ABS) in this
case is not established by (a) setting a time in the future for the
required installation of such features as a federal minimum standard,[1]
(b) leaving unaffected the behavior of the industry, the market, and
everyone else in the interim, or (c) comments of private third parties
that are simply noted in the Federal Register. PLAC’s effort
to equate such facts with the complex plan of phased-in regulation
of passive restraints in Geier v. American Honda Motor Co., 529 U.S.
861, 120 S.Ct. 1913 (2000), is to stretch the holding in Geier beyond
the breaking point.
ARGUMENT AND CITATION OF AUTHORITY
1.
STATE PRODUCT LIABILITY TORT SUITS ALLEGING AN ABSENCE OF PARTICULAR
SAFETY EQUIPMENT ARE NOT PREEMPTED BY A REGULATION, WITHOUT MORE,
THAT SETS A DEADLINE FOR INSTALLATION OF PARTICULAR SAFETY EQUIPMENT
AFTER THE DATE A PRODUCT IS MANUFACTURED.
PLAC claims that state product liability tort suits complaining of
the failure to install ABS devices on heavy truck are preempted by
a March 10, 1995 regulation that required manufacturers to install
ABS systems on vehicles built on or after March 1, 1997.
The taxonomy of preemption concepts in Freightliner Corp. v. Myrick,
514 U.S. 280, 287 (1995), is helpful in sharpening the issues before
this Court.
PLAC does not assert “express preemption,” that the
statutes or regulations expressly preempt state regulation and tort
suits. The express preemption clause in 15 U.S.C. § 1392(d)
provides for preemption only when a regulation is “in effect,”
which did not occur until March 1, 1997, and the savings clause in
15 U.S.C. §1397(k) states that compliance with existing regulation
does not exempt a manufacturer from common law liability.[2]
Myrick, 514 U.S. at 284. A savings clause recognizes that “there
are some significant number of common-law liability cases to save,”
Geier, 120 S.Ct. at 1918, and that “occasional nonuniformity
[caused by jury verdicts] is a small price to pay for a system in
which juries not only create, but also enforce, safety standards ...
.” Id. at 1920.
Nor does PLAC assert “field preemption,” that Congress,
the DOT, NHTSA, or FHWA so pervasively regulated the industry as to
foreclose state regulation and tort suits. The savings clause
forecloses this type of preemption as well. Moreover, in cases
of field preemption, there needs to be “a specific statement
of pre-emptive intent” by the agency. Id. at 1927.
Here there is none.
Nor does PLAC assert “impossibility preemption,” that it
would be impossible for a manufacturer to comply with federal and
state regulation. PACCAR could have easily done so by installing
ABS devices.
The sole basis for PLAC’s claim of preemption is “conflict/obstacle
preemption,” which preempts state law regulation (including tort
claims) if the regulation would conflict with, or at least be an obstacle
to, the accomplishment of an established federal policy or objective.
PLAC has a particularly heavy burden because the U.S. Supreme Court
had already considered the absence of a regulatory requirement for ABS
in Myrick, supra, rejected the manufacturer’s claim “that
the absence of regulation itself constitutes regulation,” id.,
514 U.S. at 286, and held that tort claims were not preempted under
this approach because “there is no evidence that NHTSA decided
that trucks and trailers should be free from all state regulation of
stopping distances and vehicle stability,” id., that there was
no “affirmative decision of agency officials to refrain from regulating
air brakes,” id., that “there is simply no federal standard
for a private party to comply with,” id. 289, that the absence
of federal regulations left manufacturers “free to obey state standards
concerning stopping distances and vehicle safety,” id., and that
because “Standard 121 currently has nothing to say concerning ABS
devices one way or the other, [a tort suit would undermine] no federal
objectives or purpose with respect to ABS devices, since none exist.”
Id., 289-90.
PLAC claims that the March 10, 1995 regulation, located at 49 C.F.R.
§ 571.121 (“Standard 121") and issued a few days before
the decision in Myrick, created a new federal objective where, as held
by Myrick, there had not been onebefore.[3] Moreover, this objective
would do more than give lead time for manufacturers to comply with the
federal standard, as PLAC concedes it must in order to have preemptive
effect (PLAC Br., 20), for in the interim manufacturers are “free
to obey state standards.” Myrick, 514 U.S. at 289.
When the “new federal objective” is finally identified, however,
it turns out to be nothing more than an alleged goal to “facilitate
consumer acceptance” of ABS devices. PLAC Br., 20.
It is important to see what is, and what is not, the basis for
PLAC’s conclusion. Georgia is deprived of sovereignty over
the safety of its roads, according to PLAC, simply because a few pages
from the Federal Register contain comments of trucking companies and
make references to “consumer acceptance,” references that
are taken out of context.[4][5] PLAC’s conclusion is not
based on any NHTSA regulation controlling the behavior of manufacturers
or anyone else, because NHTSA did not mandate the slightest change of
behavior in the interim. It was not based on a finding that state
regulation would interfere with its policy, since it had no policy.
On the contrary, NHTSA’s regulation was completely consistent with
maintaining the status quo ante until March of 1997.
GTLA submits that state sovereignty is too important in our federal
system to make it depend solely on comments of partisans or remarks
out-of-context in the Federal Register when the agency makes no change
in the status quo. Municipal Electric Auth. of Georgia v. Georgia
Public Service Comm., 241 Ga. App. 237 (3) (1999).
PLAC’s argument rests on too slender a reed. On this
point, the Justices in Geier were unanimous: “we certainly accept
the dissent’s basic position that a court should not find preemption
too readily in the absence of clear evidence of a conflict.”
Geier, 120 S.Ct. at 1927. The majority of five Justices found
“clear evidence of a conflict” in Geier only because the agency
“deliberately provided the manufacturer with a range of choices
among different passive restraint devices,” id., 1922 (emphasis
added), and tort suits “would have stood as an obstacle to the
gradual passive restraint phase-in that the federal regulation deliberately
imposed.” Id., 1925 (emphasis added). This policy was
manifest in the passive restraint regulation at issue (49 C.F.R. §571.208,
Standard 208), as explained at 1924-25, which (a) required a variety
of passive restraint devices, not just air bags, (b) increased the percentage
of vehicles that had to have some passive restraint device from 10%
at first to 100% over a three year period, and (c) would withdraw the
requirement for passive restraints if two-thirds of the states enacted
mandatory seat belt laws.[6] The Supreme Court resorted to the
Federal Register simply to explain the elaborate objectives deliberately
set forth in the Standard. Id., 1922-25.
By contrast, Standard 121 in this case has no similar objectives.
It does not call for alternative devices; it mandates only the ABS.
It does not phase-in ABS devices so that whether to install them on
a particular truck tractor in the interim was optional; it sets a specific
date for their installation on all truck tractors. Nor did it
make the ABS requirement subject to states’ finding alternative
solutions to the safety problems. Most importantly, Standard 121
simply makes no reference to any policy objectives that should occur
before the full implementation of the Standard in 1997. There
is nothing in the official text about pre-1997 cases to be explained
by resort to the Federal Register.
PLAC’s misuse of the Federal Register should be noted. The
section dealing with NHTSA’s choice of March 1997 appears at 60
Fed. Reg. 13251-52. If the text were as represented by PLAC, it
would speak of the interim before 1997 as a time to build consumer acceptance
of ABS devices and not to upset consumers by installing ABS in “a
greater proportion [of trucks] than the market demanded until March
1, 1997.” PLAC Br., 21. It would note that foisting
ABS devices on unwilling consumers would lead them to take unsafe measures
to disable the devices, and that manufacturers should accommodate the
segment of the market that did not want ABS devices until 1997 (PLAC
Br., 21-23), when presumably all consumers would have been educated
to want ABS devices.
The Federal Register supports none of this nonsense. The
two-year interim “would provide the industry, ABS manufacturers,
and maintenance personnel sufficient leadtime [sic] to prepare for the
changes that would be required to accommodate the new technology.”
60 Fed. Reg. 13251. The schedule “would facilitate a more
orderly implementation process, avoid the need for manufacturers to
redesign the brakes on individual vehicles twice, and reduce the development
and compliance costs that manufacturers would face as a result of these
regulations.” Id., 13252. These are typical concerns
that occur every time an agency prospectively regulates a manufacturer,
not the special concerns of an agency that finds it essential to grant
manufacturers the option not to install a safety device.
Nothing in this text supports PLAC’s argument that NHTSA was trying
to increase consumer support for ABS devices gradually. On the
contrary, NHTSA specifically rejected ATA’s proposal to “increas[e]
public acceptance of the ABS mandate” by phasing in ABS devices
(from 25% of vehicles to 100% over a four year period). Id.
Finally, the text quoted by PLAC that the implementation schedule
“should facilitate consumer acceptance” related only to scheduling
the rule to apply first to truck tractors, “the vehicle type with
the largest potential safety benefit from ABS” and “the most
standardized type of heavy vehicle,” and only later to less standardized
vehicles that would involve more significant design and implementation
problems. Id. This text had absolutely nothing whatever
to do with a policy to grant manufacturers a protected option not to
install ABS devices. “It simply left the industry where it
was before – free to make voluntary decisions whether to add [safety]
devices (presumably influenced in part by the risk of common law liability).”
Harris v. Great Dane Trailers, Inc., No. 99-3815 (8th Cir., Dec. 11,
2000) (addressing a similar issue regarding Standard 108).
In short, Standard 121 does not support the preemption argument here.
There is no federal objective that would be thwarted by allowing a Georgia
product liability lawsuit to proceed. In all cases in which preemption
is claimed, the manufacturer should be required to point to a real federal
policy, and not simply to cobble together such a policy from comments
of third parties and casual statements taken out context in the Federal
Register.
2.
STATE PRODUCT LIABILITY TORT SUITS ALLEGING AN ABSENCE OF PARTICULAR
SAFETY EQUIPMENT ON A VEHICLE ARE NOT PREEMPTED BY A REGULATION, ISSUED
AFTER MANUFACTURE, THAT REFUSES TO REQUIRE USERS TO RETROFIT THE EQUIPMENT
ON THE VEHICLE.
PLAC’s second argument for preemption is even weaker. In
short, PLAC argues that FHWA’s 1998 decision not to require users
(not manufacturers) to retrofit them with ABS devices had some preemptive
claim on tort claims against manufacturers for damages alleging that
vehicles manufactured in 1996. If this were true, every agency
decision not to require users to retrofit a manufactured product with
a newly required safety device would preempt any tort claims against
the manufacturer for failure to install the safety device in the first
place, a result that is completely unprecedented in American law.
Whatever the preemptive effect that this FHWA action might have on a
theoretical action by Georgia to require the recall and/or retrofitting
of ABS devices on all heavy vehicles manufactured before 1997, a tort
suit is not such a case. Plaintiffs in cases such as the present
one seek damages for the manufacturer’s failure to install needed
safety equipment at the time of manufacture. Thus, pursuit of
claims such as this do not invoke the concerns that FHWA mentioned in
deciding not to require retrofitting: the inordinate teamwork required
between ABS suppliers, truck manufacturers, wheel and hub suppliers,
and wiring harness suppliers to accomplish the retrofit; the experience
that retrofitting could not ensure that ABS devices functioned properly
because of conflicts between the original design of the vehicle and
the new equipment; the inability of users to retrofit their vehicles
without substantial technical assistance from the manufacturers; the
inability of manufacturers to assist with retrofitting while at the
same time installing volumes of ABS devices on new vehicles; the higher
cost of retrofitting than installation in the new vehicle; and the down
time of the vehicles during retrofitting. 63 Fed. Reg. 24456-58.
Indeed, the point cited by PLAC that manufacturers’ resources were
limited and that it would be “unrealistic to expect manufacturers
to be able to help ... complete the retrofitting of several million
vehicles while working on the design and installation of ABSs on newly
manufactured vehicles” (PLAC Br. 27, quoting 63 Fed. Reg. 24457)
shows that FHWA intended for manufacturers to use their resources to
install ABS devices on new vehicles. This suit, claiming that
the manufacturer was at fault for failing to use its resources to install
ABS devices on a new vehicle, obviously does not conflict with this
policy.
CONCLUSION
For the foregoing reasons, GTLA respectfully submits that the Court
“should not find preemption too readily in the absence of clear
evidence of a conflict.” Geier, 120 S.Ct. at 1927.
PLAC has presented no evidence of a conflict because it has presented
no evidence of a federal policy applicable to this case. Therefore,
the assertion of preemption in this case should be rejected.
Respectfully submitted,
/s/ CHARLES M. CORK, III
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[1] PLAC concedes this point. PLAC Br., 16, 20.
[2][2] Georgia product liability law also provides that compliance
with federal regulations is not a complete defense. Doyle v. Volkswagenwerk
A.G., 267 Ga. 574 (1997).
[3] PLAC’s argument, if valid, would create the anomaly that vehicles
manufactured before March 10, 1995 were not immunized from tort litigation
by the preemption doctrine as held in Myrick, supra, and vehicles manufactured
after March 1, 1997, were not immunized because Standard 121 mandated
ABS, but vehicles manufactured between those dates would be immunized
without an official word intending that effect.
[4] The words appear at 60 Fed. Reg. 13252 in the context of justifying
the staggered imposition of ABS on truck tractors in 1997 and on other
vehicles in later years. The context is not about letting the
marketplace decide before 1997.
[5]
[6] In Gentry v. Volkswagen of America, Inc., 238 Ga. App. 785 (1999),
this Court presaged the U.S. Supreme Court’s analysis and ultimate
holding that tort claims alleging the failure to add a particular passive
restraint system would be preempted, but that other claims, i.e., defects
in the passive restraint system chosen or the inadequacy of the overall
passive restraint system were not preempted. Geier, 125 S.Ct.
at 1927-28.
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