In fact, Judge Lassara’s recent decision in Martinez v. Ford Motor Co., Fed.Supp.2d , 2007 WL 1599013 (M.D. Fla. 4-26-07) in which the plaintiffs’ window glazing claims were found to have been preempted, is a reminder of the harsh realities associated with prosecuting products cases in this age of numerous pro-preemption judges. The fact is, federal preemption is a concept lawyers handling products cases must keep in mind when not only initially evaluating potential claims, but also when drafting complaints and developing a litigation strategy.

When federal preemption is employed as a sword to bar a particular consumer’s claims, the consequences are oftentimes devastating. Imagine this scenario: plaintiff asserts negligence and strict liability claims against an auto manufacturer for failing to equip a vehicle with laminated glass. The auto manufacturer responds by asserting compliance with a federal safety standard as an affirmative defense. Thereafter, the court enters a scheduling order that places the expert disclosure deadline before the deadline to file dispositive motions. Accordingly, counsel for plaintiff spends a substantial amount of money to conduct litigation testing and otherwise support his selected expert’s opinions. After all the money is spent to substantiate plaintiff’s laminated glass theory of liability, defendant files its motion for summary judgment based on preemption and wins. As a result, plaintiff’s counsel is not only out thousands and thousands of dollars, but more importantly, the injured consumer is robbed of her opportunity to present her case to a jury.

In addition to the impact federal preemption may have on litigants, it also stifles innovation and threatens the health and safety of all consumers. Specifically, when designers and manufacturers believe compliance with minimal governmental standards shields them from civil liability there is no incentive for them to meet a higher standard by designing and selling a safer and innovative product.

With these realities in mind, it is important to first define the three different types of preemption. For ease of understanding, we will refer to the three different types of preemption as (1) express preemption, (2) conflict preemption, and (3) field preemption. Express preemption occurs when Congress explicitly, in the language of the statute itself, conveys its objective to preempt state law. Conflict preemption is when preemption is implied because there is an actual conflict between federal and state law or where the application of state law would frustrate the federal purpose or objective. Field preemption exists when preemption is implied because the federal regulations are so comprehensive that they leave no room for states to supplement.

Preemption is typically raised as a defense in litigation involving the following types of consumer products: (1) cigarettes; (2) FDA approved medical devices; (3) motor boat propellers; (4) pesticides; and (5) motor vehicles. Because our firm typically deals with preemption arguments made in the area of motor vehicle products litigation, this article focuses on that area of the law.

When evaluating the preemption defense in a case involving a motor vehicle, the starting point must be the National Traffic and Motor Vehicle Safety Act of 1966 found in 49 U.S.C. §§30101-30105 et. seq. The stated purpose of this Act is to reduce traffic accidents and the injuries and deaths that result therefrom. In order to accomplish this purpose Congress found it necessary: “(1) to prescribe motor vehicle safety standards for motor vehicles and motor vehicle equipment in interstate commerce; and (2) to carry out needed safety research and development.” 49 U.S.C. §30101. The express preemption provision of the act provides that “[w]hen a motor vehicle safety standard is in effect under this chapter, a State or political subdivision may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter….” 49 U.S.C. §30103(b). The Act goes on to include a savings clause, however, which specifically states that “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. §30103(e).

In Geier v. American Honda Motor Co., 529 U.S. 861, 867-68 (2000), the Supreme Court analyzed both the express preemption provision and savings clause of the Act to determine whether the Act preempts state common law tort claims. After evaluating these provisions, the Court held that the Act cannot be read to expressly preempt common law tort claims. Id. at 868. The bad news, however, is that the Court went on to find that “the savings clause (like the express pre-emption provision) does not bar the ordinary workings of conflict pre-emption principles.” Id. at 869. As a result, the Court, after fully evaluating the specific Federal Motor Vehicle Safety Standard at issue, ultimately held that plaintiff’s state common law tort claims were barred by conflict preemption. Id. at 886.

The Geier decision has since been used by courts to both support and defeat preemption arguments made by defendants defending motor vehicle negligence and strict liability claims. In Chevere v. Hyundai Motor Co., 774 N.Y.S.2d 6, 7 (N.Y. App. Div. 2004) the court stated that “Geier precludes actions alleging a general failure to equip a vehicle properly, but does not preclude common-law claims against a manufacturer who has unreasonably opted to meet only minimal performance requirements.” Similarly, in Kent v. DaimlerChrysler Corp., 200 F.Supp.2d 1208, 1215-16 (N.D. Cal. 2002), the court held that merely because the defendant complied with the specific safety standard at issue does lead to the conclusion that plaintiffs’ claims are preempted by Geier.

In Martinez, however, the court used Geier to support its decision to grant defendant’s motion for partial summary judgment on preemption. Specifically, the court stated that “Plaintiff’s claim that Ford should have designed the vehicle with laminated glass is federally preempted because the option for utilizing tempered glass is specifically preserved under the regulatory scheme of FMVSS 205.” Martinez, 2007 WL 1599013 at *3.

In addition to the efforts by manufacturers to have courts dismiss state law claims based on preemption, there has also been increasing pressure on both the regulatory and congressional fronts to preempt state laws.

One example in the motor vehicle arena involves a recent NHTSA proposed revision to Federal Motor Vehicle Safety Standard 216. In 2005, Congress tasked NHTSA with reviewing all Federal Motor Vehicle Safety Standards (FMVSS). Consumer advocates were optimistic about this directive, in the hopes that some of the more irrelevant standards – such as FMVSS 216 which regulates roof strength – would be beefed up to provide meaningful consumer safety improvements in vehicle design.

Shockingly, NHTSA’s proposed revision to 216 contained a “civil justice” section which expressly states that the new rule would preempt state law. Ironically, in its federalism impact statement, NHTSA erroneously concluded that “no consultation with states was necessary because there is no significant federalism impact.” This conclusion is a direct violation of Executive Order 13132 on Federalism. Order 13132 – The Federalism Executive Order – requires the agency to determine if the proposed rule would preempt state laws, and if so, to consult with state and local government groups to eliminate or minimize the preemption. This was obviously never done by NHTSA.

If this proposed 216 is approved, it would establish a complete defense for all vehicles which comply with the new federal standard – which as it turns out – is not much better than the existing 216 standard for roof strength. Fortunately there has been substantial political opposition to the proposed rule, both in terms of its substance and in terms of its preemption provisions. This issue will likely not be decided until fall of 2007. If the new rule is approved, there will also likely be legal challenges before it goes into effect.

There have been several other recent attempts to create federal preemption in other areas of state law through the enactment of federal regulation. Recent proposed regulations in the banking, telecommunications and drug industries would all preempt state laws that give state court remedies for consumers against industry. Because industry groups recognize the power of preemption to strip away traditional consumer protections, attempts to expand preemption through the courts, regulation and federal legislation will likely continue.

Consumer attorneys must be aware of these efforts and take claims of preemption seriously when raised in litigation by a defendant. One bad decision in favor of preemption will have long term consequences in terms of the precedent it will create for other cases.

The legal research and preparation to adequately address a preemption claim can be daunting. The good news is that there are consumer groups available to help. First, the Trial Lawyers for Public Justice (TLPJ) has created the Federal Preemption Project, which is tasked with assisting consumer attorneys fight preemption in consumer litigation. Through the Federal Preemption Project, TLPJ attorneys assist with legal research and briefing whenever preemption is raised by a defendant against a consumer. For more information see TLPJ’s website at www.TLPJ.org. TLPJ’s great work in this area cannot be understated; they have truly carried the torch for consumers against preemption and have won several great victories against special interests who seek to strip away state law protections.

Another great resource is the Florida Justice Association’s Appellate Committee. Like the TLPJ, the FJA offers assistance in certain cases where a bad decision on preemption might create bad precedent. For more information call the FJA at (850) 224-9403.

The bottom line is this: preemption is a very dangerous issue that consumer attorneys must take very seriously. A single bad opinion – even at the trial court level — will have serious long term effects on other cases. To wade into a preemption fight without adequate research and briefing is a potential disaster for both the instant case and for the greater consumer good. Consumer attorneys must know that they have allies through the TLPJ and the FJA who are willing to step into the breach to help in a preemption fight.

So, if you see this issue in your case, please pick up the phone and ask for help. Your client, and other consumers in future cases, will be very grateful.