On the heels of the Supreme Court’s deeply divided decision in Wyeth v Levine, 129 S. Ct. 1187 (2009), a collection of cases that will further reshape the contours of the federal preemption of state law is before the Supreme Court this term.
Williamson v. Mazda Motor of America, Inc., No. 08-1314
In the Levine case the Supreme Court allowed a state tort law verdict against a drug-maker to stand, despite the FDA’s approval of the medication label at issue. Justice Stevens, writing for the Court, explained that state tort law remedies complemented rather than contradicted the federal warnings process, which set forth only a minimum standard. In so holding, the Court retreated from the fairly broad interpretations lower courts had given to the Supreme Court’s landmark preemption decision in Geier v. American Honda Motor Co., 529 U.S. 861 (2000). Geier was a lawsuit arising from injuries allegedly resulting from the lack of a passenger-side air bag as original equipment in a vehicle. The plaintiff contended that, under state tort law, the vehicle was defective and unreasonably dangerous for not including the passenger-side air bag. Honda, with the US Solicitor General’s support, argued that it had complied with a National Highway Traffic Safety Administration (NHTSA) safety standard that explicitly allowed automobile manufacturers to make a choice between occupant restraints employing only seat belts or seat belts and air bags. Therefore, Honda argued, the plaintiff’s state tort law claims were preempted by federal law. Notwithstanding the inclusion of a savings clause in the statute authorizing the safety standard at issue, the majority in Geier agreed with Honda, holding that the state tort claim had been impliedly preempted because it conflicted with the purposes and objectives of federal safety standards in this area.
Williamson presents the Supreme Court with the opportunity to reexamine Geier in light of its recent decision in Levine. Specifically, the Court will decide whether compliance with a federal safety regulation exempts a vehicle manufacturer from liability under state tort law. In Williamson the California Court of Appeals relied heavily on Geier in holding that the applicable Federal Motor Vehicle Safety Standards (FMVSS) preempted a seat belt design defect claim because the applicable federal standard presented options for compliance (manufacturers may install either lap only or lap/shoulder seatbelts in certain seating positions), despite evidence that the applicable regulation set only a minimum safety standard. This holding appears to conflict with the Supreme Court’s explanation of Geier in Levine and will test the Court’s willingness to extend its rationale in Levine both to other areas of the law and to other contexts where the courts have previously spoken.
Chamber of Commerce of the United States v. Whiting, No. 09-115
In Whiting the Ninth Circuit held that an Arizona law mandating that employers participate in the federal E-Verify immigration status verification program was not preempted by federal law. The federal statute at issue required participation in a federal program that created a mix of options from which employers could choose. For this reason the plaintiff argued that Geier controlled such that the statute was preempted. The Ninth Circuit distinguished Geier, finding that the state tort claims in that case had disrupted the objectives of a purposefully balanced standard, whereas the Arizona immigration law furthered the purposes of the federal regulatory scheme. Therefore, federal law did not preempt the Arizona law at issue.
Bruesewitz v. Wyeth, Inc., No. 09-152
In Bruesewitz the Third Circuit held that state-law design defect claims raised under the savings clause of the National Childhood Vaccine Injury Act of 1986 are contrary to the overall purpose of the statute and, therefore, expressly preempted by the federal statute. This holding is at odds with the Georgia Supreme Court’s decision in American Home Products v. Ferrari, 668 S.E.2d 236 (Ga. 2008), finding that only claims based on “unavoidable” side effects were preempted by the statute because the savings clause specifically stated “except as provided . . . State law shall apply to a civil action brought for damages for a vaccine-related injury.”
Each of these three preemption cases to be decided by the Supreme Court in the coming months relates to broader questions of federal preemption that have divided the courts in recent years and created uncertainty and variability in litigation. If the Supreme Court narrows Geier, as many predict, then the trend under Levine against finding preemption of state tort law claims will likely persist. In particular, lower courts will become less likely to find federal preemption of state law claims brought against automotive and pharmaceutical manufacturers that have chosen between optional federal minimum standards. In addition, it may call into question the ability to successfully raise preemption defenses even if the manufacturer can establish compliance with federal standards because they may not expressly preclude liability in the clearest of terms. In the coming months and years, how the Supreme Court resolves these cases will affect virtually all state law claims affected by federal regulation.