O'Hara v. General Motors Corp.

• Decision Date: 20 November 2007
• Docket Number: No. 06-10498.,06-10498.
• Citation: 508 F.3d 753
• Parties: Chad O'HARA, Individually and as Next Friend of H.O., a Minor; Michelle O'Hara, Individually and as Next Friend of H.O., a Minor, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

508 F.3d 753

Chad O'HARA, Individually and as Next Friend of H.O., a Minor; Michelle O'Hara, Individually and as Next Friend of H.O., a Minor, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.

No. 06-10498.

United States Court of Appeals, Fifth Circuit.

November 20, 2007.

Phillip A. Wittmann (argued), Stone, Pigman, Walther & Wittmann, New Orleans, LA, Leon René Russell, Dallas, TX, Mary Lee Wolff, Patrick M. Ardis, William Edward Brown, Wolff Ardis, Memphis, TN, for Plaintiffs-Appellants.

Brendan K. McBride (argued), Karl Thomas Rivas, David McDonald Prichard, Prichard, Hawkins, McFarland & Young, San Antonio, TX, for Defendant-Appellee.

Leslie A. Brueckner, Public Justice, PC, Washington, DC, for Trial Lawyers for Public Justice, Amicus Curiae.

H. Christopher Bartolomucci, Hogan & Hartson, Washington, DC, for Alliance of Auto. Mfrs. and Ass'n of Intern. Auto. Mfrs, Inc., Amici Curiae.

Kenneth Steven Geller, David Morris Gossett, Erika Ziebarth Jones, Mayer Brown, LLP, Washington, DC, for Product Liability Advisory Council, Inc., Amicus Curiae.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, CLEMENT and OWEN, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Chad and Michelle O'Hara ("the O'Haras") bring suit against General Motors Corporation ("GM") for injuries sustained by their daughter, H.O., when she was partially ejected from a 2004 Chevrolet Tahoe during a rollover accident. The district court granted summary judgment in favor of GM on the ground that the suit is preempted by Federal Motor Vehicle Safety Standard ("FMVSS") 205. 49 C.F.R. § 571.205. The O'Haras appeal. For the reasons stated below, we reverse in part, affirm in part and remand to the district court.

I. FACTS AND PROCEEDINGS

H.O., a minor, seriously injured her arm when she was partially ejected from the passenger side window of a Tahoe during a low-speed quarter-rollover accident. The O'Haras sued GM in Texas state court, alleging common law theories of strict liability and negligence for the defective design, manufacture, and marketing of the Tahoe's side windows. The O'Haras claimed that GM's use of tempered glass in the side windows was unreasonably dangerous and that the use of advanced glazing would have decreased the likelihood of passenger ejection.¹ The O'Haras also brought marketing and failure-to-warn claims.

GM removed this action to federal district court based on diversity jurisdiction. GM moved for summary judgment on the ground that FMVSS 205, the federal safety standard for glass used in motor vehicle windows, preempted the O'Haras' claim. In their reply to GM's motion, the O'Haras argued that FMVSS 205 did not preempt their advanced glazing claim. They also claimed that the Tahoe's side windows did not comply with FMVSS 205 as designed and that the tempered glass in the window was defectively installed and implemented. The district court granted GM's motion for summary judgment on the basis of preemption and dismissed the O'Haras' noncompliance and defective design claims sua sponte. O'Hara v. Gen. Motors Corp., No. 3:05-CV-1134, 2006 WL 1094427, at *5-7 (N.D.Tex. Apr.25, 2006).

A. FMVSS 205

The glazing standards in FMVSS 205 were promulgated by the National Highway Traffic Safety Administration ("NHTSA") under the Federal Safety Act ("FSA"), 49 U.S.C. § 30101 et seq. The FSA preempts state regulations, 49 U.S.C. § 30103(b), but compliance with a motor safety standard prescribed under the Act does not preempt common law suits, 49 U.S.C. § 30103(e). FMVSS 205 "specifies performance requirements for the types of glazing that may be installed in motor vehicles" and "specifies the vehicle locations in which the various types of glazing may be installed." NHTSA, Glazing Materials, Final Rule, 68 Fed.Reg. 43,964, 43,965 (July 25, 2003) (codified at 49 C.F.R. § 571.205) [hereinafter Glazing Materials Final Rule]. "The purpose of [FMVSS 205] is to reduce injuries resulting from impact to glazing surfaces, to ensure a necessary degree of transparency in motor vehicle windows for driver visibility, and to minimize the possibility of occupants being thrown through the vehicle windows in collisions." 49 C.F.R. § 571.205, S2.

In 2003, following a four-year review process, NHTSA updated FMVSS 205 to incorporate the most recent standards from the American National Standards Institute ("ANSI"), the American National Standard for Safety Glazing Materials Z26.1 [hereinafter ANSI/SAE Z26.1-1996]. Glazing Materials Final Rule, 68 Fed.Reg. at 43,964-65. Under both the old and revised versions of FMVSS 205, tempered glass and laminated glass are approved glazing materials. See ANSI/SAE Z26.1-1996 §§ 3.2 (tempered glass), 3.3 (laminated glass), 3.4 (glass-plastic glazing), incorporated by reference in 49 C.F.R. § 571.205, S3.2(a). Laminated glass is approved for use throughout a vehicle, while tempered glass can be used anywhere other than in the windshield. See ANSI/SAE Z26.1-1996, T. 1 (Items 1 & 2). The ANSI standards also state that "[o]ne safety glazing material may be superior for protection against one type of hazard, whereas another may be superior against another type . . . . [N]o one type of safety glazing material can be shown to possess the maximum degree of safety under all conditions." Id. at § 2.2.

B. NHTSA's Rollover Accident Research

FMVSS 205 became the focus of NHTSA's rollover protection policy in the early 1990s after Congress mandated that NHTSA initiate rulemaking on rollover protection. NHTSA, Withdrawal of Advance Notices of Proposed Rulemaking, 67 Fed.Reg. 41,365, 41,366 (June 18, 2002) [hereinafter Notice of Withdrawal]. In 1992, NHTSA issued a notice of proposed rulemaking on rollover protection which solicited comments on both rollover prevention measures (such as vehicle stability controls) and occupant ejection prevention strategies (such as advanced glazing). NHTSA, Rollover Prevention, Advance Notice of Proposed Rulemaking, 57 Fed. Reg. 242 (Jan. 3, 1992). Following the 1992 notice of proposed rulemaking, NHTSA chose to focus its rollover protection policy on advanced glazing and issued status reports on its advanced glazing research in 1995 and 1999. Notice of Withdrawal, 67 Fed.Reg. at 41,366.

In 2001, Congress passed the Department of Transportation and Related Agencies Appropriation Act of 2001, which noted that the "NHTSA had been considering the utility of advanced side glazing since 1991" and "directed NHTSA to complete and issue a final report on advanced side glazing." Id. at 41,367 (citing the House of Representatives Conference Report on H.R. 4475). In response, NHTSA withdrew its notice of proposed rulemaking on advanced glazing. Id. NHTSA stated in its Notice of Withdrawal that it declined to require advanced glazing based on "safety and cost concerns." Id. The safety concerns included NHTSA's desire to establish standards for promising new technologies like side air curtains. Id. NHTSA also noted that the well-established safety benefits of advanced glazing in side windows were not without drawbacks, including a slightly increased risk of minor neck injuries. Id. at 41,366-67. With regard to cost, NHTSA noted that manufacturers disputed its estimate that it would cost between $48 and $79 to modify the front side windows. Id. at 41,367. NHTSA stated that it would "not continue to examine a potential requirement for advanced side glazing." Id. NHTSA decided that it was "more appropriate to devote its research and rulemaking efforts . . . to projects other than ejection mitigation through advanced glazing" and that in the future it would focus its efforts on developing "more comprehensive, performance-based test procedures" to evaluate potential new technologies. Id.

In 2005, however, Congress passed a law requiring NHTSA to initiate rulemaking in two areas: rollover prevention (including "stability enhancing technologies" which prevent vehicles from rolling over) and "[o]ccupant ejection prevention." Id. § 30128(b), (c).² As part of this comprehensive response to rollover accidents, NHTSA has continued to research the ways that advanced glazing can reduce occupant ejection. See, e.g., Stephen Summers et al., Nat'l Highway Traffic Safety Admin., NHTSA's Crashworthiness Rollover Research Program, Paper No. 05-2079, at 4 (2005) (reporting on crashworthiness tests employing "advanced side glazings developed under previous NHTSA research").

II. STANDARD OF REVIEW

We review the district court's grant of summary judgment on preemption grounds de novo. Wright v. Allstate Ins. Co., 415 F.3d 384, 389 (5th Cir.2005). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Brewer v. Wilkinson, 3 F.3d 816, 819 (5th Cir.1993).

III. DISCUSSION

This appeal is about whether FMVSS 205, which governs motor vehicle glazing safety, preempts a common law suit alleging that GM's use of a permitted glazing technology was unsafe. We are the first appellate court to rule on this question.³ NHTSA studied the question of whether to require advanced glazing in side windows for over a decade and decided in 2002 to leave the existing glazing standards in place and pursue a "comprehensive, performance-based" approach to ejection mitigation instead. Notice of Withdrawal, 67 Fed.Reg. at 41,365. GM argues that this decision embodies a federal policy regarding motor vehicle glazing which would be frustrated by a Texas common-law rule requiring advanced glazing in side windows. GM contends that this conclusion is compelled by Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), which found that FMVSS 208 (the NHTSA safety standard for occupant crash protection), preempted state common law claims. See 49 C.F.R. § 571.208. The O'Haras argue that FMVSS 205 differs significantly from FMVSS 208 and that NHTSA's decision...