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.
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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.