Harris By and Through Harris v. Ford Motor Co., 94-56527

• Citation: 110 F.3d 1410
• Decision Date: 08 April 1997
• Docket Number: No. 94-56527,94-56527
• Parties: , Prod.Liab.Rep. (CCH) P 14,906, 97 Cal. Daily Op. Serv. 2577, 97 Daily Journal D.A.R. 4573 Jennifer R. HARRIS, by and through her guardian ad litem, Lucian J. HARRIS, III, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1410

110 F.3d 1410

65 USLW 2675, Prod.Liab.Rep. (CCH) P 14,906,

97 Cal. Daily Op. Serv. 2577,

97 Daily Journal D.A.R. 4573

Jennifer R. HARRIS, by and through her guardian ad litem Lucian J. HARRIS, III, Plaintiff-Appellee, v. FORD MOTOR COMPANY, Defendant-Appellant.

No. 94-56527.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 9, 1996.

Submission Withdrawn Aug. 30, 1996.

Resubmitted Oct. 1, 1996.

Decided April 8, 1997.

Malcolm E. Wheeler, Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, Colorado, for defendant-appellant.

Stuart B. Esner, Esner, Zakheim & Higa, Santa Monica, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CV 93-5428 DT.

Before: O'SCANNLAIN and TROTT, Circuit Judges, VAN SICKLE, ^* District Judge.

O'SCANNLAIN, Circuit Judge:

We must decide whether federal law pre-empts a state law product liability claim against an automobile manufacturer for failure to install a driver side airbag.

I

On August 10, 1992, while driving a rented 1992 Mercury Topaz in New York, Jennifer Harris, a sixteen year old California citizen, lost control of the vehicle, smashed into a tree, and was seriously injured.

Harris filed a complaint against Ford Motor Company ("Ford") in California state court alleging, among other things, that the vehicle was defectively designed and that Ford was negligent because it failed "to provide a driver side airbag." The case was removed to the Central District of California where Ford moved for partial summary judgment on the ground that Harris' tort claims under state law were pre-empted by the National Traffic and Motor Vehicle Safety Act of 1966 ("Safety Act"), 15 U.S.C. § 1381 et seq. (1988), ¹ and the regulations promulgated thereunder-specifically, by Motor Vehicle Safety Standard 208 ("Standard 208"), 49 C.F.R. § 571.208. The district court entered an order denying Ford's motion and certified its order for appeal under 28 U.S.C. § 1292(b). Ford petitioned this court for leave to file an interlocutory appeal on the pre-emption issue, which we granted.

II

The history of the Safety Act, and of Standard 208, is extensive, and has been ably discussed by several other courts. See Pokorny v. Ford Motor Co., 902 F.2d 1116, 1123-24 (3rd Cir.1990); Taylor v. General Motors Corp., 875 F.2d 816, 822-23 (11th Cir.1989); Wood v. General Motors Corp., 865 F.2d 395, 397-99 (1st Cir.1988). Of particular relevance to this appeal, however, is that the Act aimed "to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents," 15 U.S.C. § 1381, by enabling federal regulators to promulgate uniform national motor vehicle safety standards.

Congress provided for such uniformity by expressly pre-empting State law in § 1392(d) of the Act:

Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.

15 U.S.C. § 1392(d).

Standard 208, first promulgated in 1967 pursuant to the Safety Act, governs the passive safety restraints automobile manufacturers must install. For cars manufactured after September 1, 1989, Standard 208 gives automobile manufacturers the option of installing either an airbag or an automatic seatbelt that would signal the driver with a warning light if the belt became unhooked. 49 C.F.R. § 571.208.

In light of the history of this safety standard, it is indisputable that flexibility and choice are essential elements of the regulatory framework established in Standard 208. ² Pokorny, 902 F.2d at 1124. Not only did the Secretary of Transportation carefully consider and deliberately choose to provide such flexibility, see id. (citing 49 Fed.Reg. 28962, 28997 (1984); 46 Fed.Reg. 53419 (1981)); Taylor, 875 F.2d at 823, Congress specifically prohibited the Department of Transportation from requiring airbags without congressional review, 15 U.S.C. § 1410b (1988). ³ Harris does not dispute that the car she was driving complied with Standard 208. Nonetheless, she claims that, under California law, she is entitled to recover against Ford for its failure to provide an airbag notwithstanding compliance with Standard 208.

III

Article VI of the Constitution provides that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Since M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819), "it has been settled that state law that conflicts with federal law is 'without effect.' " Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981)). Pre-emption may be "either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992).

We begin our pre-emption analysis by examining whether the Safety Act expressly pre-empts Harris' claims. ⁴

A

Section 1392(d) prohibits States from establishing or continuing in effect "any safety standard" not identical to the Federal standard. Harris contends that the safety standards contemplated by § 1392(d) are created by legislatures and regulators, not judges and juries. Recovery on her tort claims, she argues, would not be pursuant to a "safety standard."

Two recent Supreme Court decisions support a contrary conclusion. In Cipollone v. Liggett Group, Inc., a majority of the Court rejected a similar argument regarding the Public Health Cigarette Smoking Act of 1969, concluding that judgments in state common law damage actions imposed "requirement[s] or prohibition[s]" and hence were pre-empted by that Act. ⁵ "[S]tate regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." Cipollone, 505 U.S. at 521, 112 S.Ct. at 2620 (plurality opinion) (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959)); id., 505 U.S. at 548, 112 S.Ct. at 2634 (Scalia, J., concurring in judgment in part and dissenting in part).

More recently, the Court decided Medtronic, Inc. v. Lohr, --- U.S. ----, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), which construed the pre-emption provisions of the Medical Device Amendments ("MDA"). ⁶ The majority opinion expressed two presumptions about the nature of pre-emption: that Congress does not cavalierly pre-empt state law causes of action, and that the intent of Congress is the ultimate touchstone in every pre-emption case. Id. at ----, 116 S.Ct. at 2250. It concluded that the particular common law claims brought by the Lohrs were not pre-empted by the MDA.

Nonetheless, a majority of the Court supported the view that common law claims can impose requirements equivalent to those written by a state legislature or regulatory agency and consequently can be pre-empted when Congress speaks only about "requirements." Id. at ---- - ----, 116 S.Ct. at 2262-63 (O'Connor, J., dissenting in part) (joined by Rehnquist, C.J., Scalia and Thomas, JJ.) (citing Cipollone, 505 U.S. at 521, 112 S.Ct. at 2620); id., --- U.S. at ----, 116 S.Ct. at 2259 (Breyer, J., concurring) (citing Cipollone, 505 U.S. at 521, 112 S.Ct. at 2620). See Papike v. Tambrands Inc., 107 F.3d 737, 740-42 (9th Cir.1997). As Justice Breyer observed, "[o]ne can reasonably read the word 'requirement' as including the legal requirements that grow out of the application, in particular circumstances, of a State's tort law." Id., --- U.S. at ----, 116 S.Ct. at 2259 (Breyer, J., concurring). ⁷ Cipollone 's reasoning about common law damage actions thus retains its vitality after Medtronic.

Like the phrase "requirement or prohibition" in Cipollone, "any safety standard" sweeps broadly and suggests no distinction between positive enactments and common law. Unlike the narrow FDA pre-emption regulation in Medtronic, § 1392(d) does not limit pre-emption to "particular state requirement[§ which threaten] to interfere with a specific federal interest," Medtronic, --- U.S. at ----, 116 S.Ct. at 2257. Instead, § 1392(d) speaks expansively about "any safety standard applicable to the same ... item of equipment which is not identical to the Federal standard."

Moreover, Medtronic 's generality/specificity analysis, see id. at ---- - ----, 116 S.Ct. at 2257-58; Comm. of Dental Amalgam Mfrs. & Distribs. v. Stratton, 92 F.3d 807, 813 (9th Cir.1996), informs our analysis here. Indeed, Standard 208 seems to be precisely the type of specific federal requirement the Supreme Court noted was missing in Medtronic:

The generality of these [Federal medical device] requirements make this quite unlike a case in which the Federal Government has weighed the competing interests relevant to the particular requirement in question, reached an unambiguous conclusion about how those competing considerations should be resolved in a particular case or set of cases, and implemented that conclusion via a specific mandate on manufacturers or producers.

Id., --- U.S. at ----, 116 S.Ct. at 2258. Furthermore, Standard 208 (which gives Ford a choice to install either automatic seatbelts or airbags) operates on the same level of specificity as Harris' state law claim (which would have required Ford to install...