Minton v. Honda of America Manufacturing, Inc.

Cook, J.,

dissenting. Because I believe that state “no air bag” claims grounded in tort are impliedly preempted by the National Traffic and Motor Vehicle Safety Act, former Section 1381 et seq., Title 15, U.S.Code (“Safety Act”) and Federal Motor Vehicle Safety Standard 208, Section 571.208, Title 49, C.F.R. (“FMVSS 208”), I respectfully dissent.

The majority bases its decision on the implied preemption issue on three factors: (1) appellant’s state law cause of action does not amount to a state performance standard; (2) assuming that state law would penalize Honda for its failure to implement an air bag, it would not be “impossible” for Honda to comply with both state and federal law because the federal standard does not prohibit implementation of air bags; and (3) the primary purpose of the Safety Act is to reduce death and injuries resulting from traffic accidents, while national uniformity in safety standards is a secondary goal. These factors, however, do not compel the majority’s conclusion.

It is important to an express-preemption analysis whether appellant’s state law cause of action amounts to a state performance standard because, if it does not, express preemption cannot be found. That inquiry, however, has little bearing on *82the issue of implied preemption. In Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407, the court stressed that state “ ‘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.’ ” Id. at 521, 112 S.Ct. at 2620, 120 L.Ed.2d at 426, quoting San Diego Bldg. Trades Council v. Garmon (1959), 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775, 784. Accordingly, even if not the definitional equivalent of a safety standard, state actions at common law may generate tensions with federal safety standards so as to create a conflict, warranting preemption.

In delimiting the reach of implied preemption, the United States Supreme Court has stated that “state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, * * * or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” (Emphasis added.) English v. Gen. Elec. Co. (1990), 496 U.S. 72, 79, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65, 74, quoting Hines v. Davidowitz (1941), 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581, 587.

I begin my analysis by noting that the rule set out by the Supreme Court on implied conflict preemption recognizes two disjunctive bases for preemption. The majority rejects preemption on the first basis, impossibility of compliance, determining that, by choosing air bags for all its automobiles, Honda could comply with both state and federal law. The majority rejects the second basis for preemption, that allowance of “no air bag” claims stands as an obstacle to execution of the full purposes of Congress, by stating that Congress’s primary purpose is reduction of traffic accidents, deaths and injuries — a goal that would be furthered by state law penalizing manufacturers for failure to implement air bags.

The flaw in the majority’s analysis rejecting the second, alternative basis for preemption is that the majority itself subverts a goal of Congress in passing the Safety Act — uniformity—in favor of what it labels the “overriding” purpose of the Act. Cipollone, however, establishes that a court is to look to the full purposes and objectives of Congress embodied in an act, not only to that purpose or objective that a court deems overriding.11

*83In making law, a legislative body necessarily strikes balances in formulating a scheme to accomplish its ultimate goal. Compromises are necessary to reconcile legitimate competing interests and to ensure the act’s workability. Piecemeal subversion of an act ultimately weakens it. In Medtronic, Inc. v. Lohr (1996), 518 U.S.-,-, 116 S.Ct. 2240, 2251, 135 L.Ed.2d 700, 716, the United States Supreme Court recognized that preemption analysis requires courts to look at the structure and purpose of the statute as a whole in determining Congress’s purpose in enacting legislation. According to the court, that purpose is revealed “not only in the text, but through the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Id.

Federal circuit courts considering this issue, before and after Cipollone was decided,12 have determined that the Safety Act and regulations promulgated under it preempt state “no air bag” claims. See, e.g., Harris v. Ford Motor Co. *84(CA.9, 1997), 110 F.3d 1410 (express preemption); Montag v. Honda Motor Co., Ltd. (CA.10, 1996), 75 F.3d 1414 (implied preemption); Pokorny v. Ford Motor Co. (CA.3, 1990), 902 F.2d 1116 (implied preemption); Taylor v. Gen. Motors Corp. (C.A11, 1989), 875 F.2d 816 (implied preemption); Wood v. Gen. Motors Corp. (C.A1, 1988), 865 F.2d 395 (implied preemption). While a few state high courts have found against preemption, I believe that those courts, like today’s majority, misunderstand the purpose of the Act’s savings clause and have failed to discern congressional intent from the structure and purpose of the Act as a whole. See Munroe v. Galati (Ariz.1997), 938 P.2d 1114; Wilson v. Pleasant (Ind.1995), 660 N.E.2d 327; Tebbetts v. Ford Motor Co. (1995), 140 N.H. 203, 665 A2d 345.

THE SAVINGS CLAUSE

Former Section 1397(k) of the Act provided that “[c]ompliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under , common law.” Looking to the structure of the Act, it is noteworthy that the savings clause did not form a part of the clause devoted to preemption. Instead, the savings clause was remotely located, with four intervening sections separating it from the preemption clause. Additionally, the former preemption clause itself contained the exceptions to its reach. It permitted states to enforce safety standards identical to the federal standard and to require higher standards for motor vehicle equipment procured for its own use. Former Section 1397(d).

What, then, was the purpose of former Section 1397(k)? I believe that the language used in that clause and its placement in the Act best support a conclusion that it was intended to eliminate compliance with federal regulations as a defense to unpreempted common-law actions. As noted by the Ninth Circuit Court of Appeals in Harris, “In the absence of former § 1397(k), manufacturers might claim that compliance with all Federal standards satisfies their common law tort duties as a matter of law, and that they should not be liable for a design or manufacturing defect even when no Federal standard exists.” Id., 110 F.3d at 1415-1416.

“Exemption” from liability presumes that liability attaches in the first instance. Preemption does not provide an “exemption.” Instead, it blocks application of laws so that liability cannot attach under the preempted law. See Harris, 110 F.3d at 1415. Had Congress intended to address preemption in the savings clause, it easily could have spoken in terms of preemption rather than exemption, as it did in former Section 1392(d). Moreover, had Congress intended former Section 1397(k) to limit the preemptive reach of the Act, it could have placed the limiting language more appropriately in former Section 1392(d), alongside the *85preemption clause’s express limitations. Compare CSX Transp., Inc. v. Easterwood (1993), 507 U.S. 658, 665, 113 S.Ct. 1732, 1738, 123 L.Ed.2d 387, 397 (noting that the structure of the Act under consideration “displays considerable solicitude for state law in that its express pre-emption clause is both prefaced and succeeded by express saving clauses.”).

Courts have consistently rejected the notion that savings clauses like former Section 1397(k) preserve “common law actions that would subvert a federal statutory or regulatory scheme.” Pokorny, 902 F.2d at 1125, citing Intematl. Paper Co. v. Ouellette (1987), 479 U.S. 481, 492-494, 107 S.Ct. 805, 811-813, 93 L.Ed.2d 883, 897-898; see, also, Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co. (1981), 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258; Pennsylvania RR. Co. v. Puritan Coal Mining Co. (1915), 237 U.S. 121, 129-130, 35 S.Ct. 484, 487, 59 L.Ed. 867, 872; Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co. (1907), 204 U.S. 426, 446, 27 S.Ct. 350, 357-358, 51 L.Ed. 553, 561. On the other hand, if we interpret the savings clause as eliminating a defense to common-law actions outside the Act’s preemptive reach, we preserve the overall consistency of the Act. Under former Section 1397(k), liability may still exist under common law for claims not in conflict with the Act’s structure and purpose. For instance, in Freightliner Corp. v. Myrick (1995), 514 U.S. 280, 115 S.Ct. 1483, 131 L.Ed.2d 385, the court allowed a state common-law action in tort premised on a “no antilock brake” claim because there was no conflicting federal safety standard in effect at the time. Additionally, former Section 1397(k) evinces a congressional intent to allow claims, such as the one tried below, alleging a manufacturing or design defect in a safety device sanctioned by the federal regulations. See Perry v. Mercedes Benz of N. Am., Inc. (C.A5, 1992), 957 F.2d 1257, 1265-1266 (state common-law action allowed for injury incurred when air bag failed to deploy).

NATIONAL UNIFORMITY IS A GOAL OF THE ACT REQUIRING IMPLIED PREEMPTION OF STATE NO AIR BAG CLAIMS

The majority concedes, as it must, that national uniformity of safety standards was a congressional goal in enacting the Safety Act. Nonetheless, the majority dismisses this goal as “ancillary” to Congress’s “primary” and “overriding” goal of improved vehicle safety.

There is no question that Congress enacted the Safety Act to improve vehicle safety. Both the language of the Act and the legislative history, however, demonstrate that Congress considered uniformity of safety standards an essential means to that end.

As stated by the First Circuit Court of Appeals in Wood, 865 F.2d at 412, “[The] division of authority between state and federal government was part of Congress’s chosen method for implementing the Safety Act. Congress believed *86that for the federal standards to be effective, they had to be uniform throughout the country. See 15 U.S.C. § 1392(d); Senate Report, 1966 U.S.Code Cong. & Admin.News at 2720 (‘The centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but that they be uniform throughout the country.’).” The text of the Act itself establishes this point, mandating that “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.” Former Section 1392(d).

Additionally, limited flexibility in choosing safety devices was a major objective of the Department of Transportation in promulgating FMVSS 208.13 This is best demonstrated by simply noting that the version of FMVSS 208 under consideration permits implementation of two alternative passenger restraint mechanisms. 49 Fed.Reg. 28962, 29009-29010 (July 17, 1984). Providing such flexibility to manufacturers is consistent with the Safety Act, which delegates to the Secretary of Transportation the authority to establish federal motor vehicle safety standards that “shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms.” (Emphasis added.) Former Section 1392(a), Title 15, U.S.Code; see, also, Pokorny, 902 F.2d at 1125.

Because uniformity and flexibility are necessary components to the continuing vitality of the Act, I would adopt the approach taken by the First Circuit in Wood, 865 F.2d at 402, and applied by the majority of federal circuit courts — that the Act and FMVSS 208 impliedly preempt state “no air bag” claims. The ultimate reason for arriving at this conclusion was best stated by the Wood court in the following passage: “[W]e are convinced that Congress’s purposes, as revealed in the Safety Act and in the legislative history, plainly imply a preemptive intent. The instant product liability claim alleging that the absence of an air bag rendered the vehicle’s design faulty would, if upheld, clearly ‘stand as an obstacle’ to the regulatory scheme of the Safety Act. A state common law action sustaining the theory that a vehicle was defective because it lacked an air bag would, in effect, create a state safety standard related to the same aspect of performance of FMVSS 208 but not identical to FMVSS 208. Such an action is, in our view, impliedly preempted because it would effectively circumvent section 1392(d)’s prohibition of nonidentical state standards covering the same aspect of performance as a federal safety standard. Allowing a common law action holding *87manufacturers liable for failing to install air bags in motor vehicles would be tantamount to establishing a conflicting safety standard that necessarily encroaches upon the goal of uniformity specifically set forth by Congress in this area.”

EXCLUSION OF EVIDENCE REGARDING SEAT BELT DESIGN CHANGE IN 1992 ACCORD

Initially, it is unimportant to the analysis that the trial court orally granted Honda’s motion in limine to exclude evidence of implementation of air bags and subsequent design changes in the belt restraint system from model year 1990 Honda Accords to model year 1992 Accords and that there is no record to document the basis for that ruling. Reviewing courts must affirm the trial court’s judgment if, upon review, any valid grounds are found to support that judgment. See Joyce v. Gen. Motors Corp. (1990), 49 Ohio St.3d 93, 96, 551 N.E.2d 172, 174. “[A] reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof.” Id.; State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 222, 631 N.E.2d 150, 154.

Aside from the rule on subsequent remedial measures (Evid.R. 407), the court was required to determine whether the evidence was relevant to the issues being tried (Evid.R. 402) and, if relevant, whether that evidence nonetheless should be excluded on grounds of prejudice, confusion, or waste of time (Evid.R. 403). Evid.R. 104(A) establishes that admissibility questions such as Evid.R. 402 and 403 are for the court to decide. I believe that the trial court could have excluded the evidence solely on the basis of Evid.R. 403.

Having properly determined that a claim premised on the absence of an air bag was preempted by federal law, the court was left to determine the relevance of a change in seat belt design that was inextricably tied to Honda’s change of passive restraint mechanisms from automatic seat belts to air bags. Because of the Safety Act’s preemptive effect, the only theory remaining for Minton was that the automatic shoulder belt used in 1990 Accords was defectively designed. Excluding “no air bag” claims, it was irrelevant that air bags were available as an alternative.

At trial, Minton introduced expert testimony that, had the 1990 Accord shoulder belt attachment been moved backwards by approximately seven inches, Minton’s injuries could have been minimized. Minton later unsuccessfully attempted to introduce evidence that Honda designed its 1992 Accord shoulder belt attachment seven inches to the rear of its position in the 1990 Accord. As noted by the appellate court, the seat belt restraints of the 1990 and 1992 Accord were not truly comparable. The 1990 version was an automatic passive restraint *88mechanism, while the 1992 version was a manual belt, with an air bag acting as the passive restraint. Nevertheless, evidence of Honda’s placement of the shoulder belt attachment in 1992 Accords is arguably relevant to demonstrate Honda’s design change in the shoulder belt attachment geometry. Moreover, under the authority of McFarland v. Bruno Mach. Corp. (1994), 68 Ohio St.3d 305, 626 N.E.2d 659, Evid.R. 407 does not prohibit introduction of evidence of the later change.

As a second step in determining whether the evidence should be admitted, however, the court was required to apply Evid.R. 403(A):

“Exclusion mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

Having noted the limited relevance of the design change, I believe that the appellate court noted proper reasons why Evid.R. 403 mandated exclusion of the change in the 1992 Accord’s shoulder belt attachment:

“In our opinion, * * * the difference in the two systems [automatic shoulder belt versus manual belt with air bag] would necessarily precipitate the introduction of evidence regarding the change from a passive shoulder belt to a manually operated shoulder belt, and thus would require the introduction of evidence regarding the reason for the design change (i.e., the conversion to airbag technology, which was a federally mandated option). * * * [W]e find that evidence of the subsequent remedial change in the shoulder belt restraint system is inadmissible because it would inevitably lead to the jury’s becoming aware of the fact that Honda switched to an airbag passive restraint system, thereby injecting an issue — the failure to have used the airbag system in the 1990 model Accord — that was preempted by federal law.

“We note that Minton was permitted to introduce expert testimony regarding the alleged design defect in the 1990 seat belt system, including, specifically, evidence regarding typical shoulder belt attachments in comparable systems of other automobile manufacturers. Therefore, we conclude that the trial court reasonably exercised the discretion inherent in its power to rule upon the admissibility of evidence to prevent the interjection of the omitted airbag theory of design defect, while not unduly restricting Minton’s ability to show, through her use of evidence of comparable shoulder belt passive restraint systems in cars manufactured by Honda’s competitors, that it was feasible to have designed the system with an attachment point closer to the driver’s shoulder.”

In addition to the opportunity to demonstrate feasible alternative designs of comparable passive shoulder belt attachments, Minton also was permitted to introduce expert testimony that the upper attachment point of the manual belt on *89an earlier model Honda Civic provided a safer design than the attachment point for the automatic shoulder belt on the 1990 Accord.

Accordingly, whatever slight probative value may attach to the difference in shoulder belt attachment points between the 1990 and 1992 model Honda Accords was substantially outweighed by that evidence’s danger of unfair prejudice, confusion of issues, and misleading of the jury. Exclusion, therefore, was proper.

CONCLUSION

In light of the foregoing analysis, I would affirm the judgment of the court of appeals.

Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion.

. Although the court in Cipollone primarily made its determinations of congressional intent for purposes of an express-preemption analysis, the court has noted the importance of congressional intent in any preemption analysis. In English v. Gen. Elec. Co. (1990), 496 U.S. 72, 79-80, 110 S.Ct. 2270, 2275, 110 L.Ed.2d 65, 75, fn. 5, the court noted: “By referring to these three categories [express preemption, implied field preemption, implied conflict preemption], we should not be taken *83to mean that they are rigidly distinct. Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.”

. The majority states its belief that given the express language of the savings and preemption clauses, an implied preemption analysis is not required in this case. Nevertheless, the majority states that it addresses the implied preemption issue out of caution. I believe that it is the clear import of United States Supreme Court law on supremacy of federal legislation, not mere caution, that mandates an implied-preemption analysis.

In Cipollone, the court determined that the preemptive scope of the legislation under consideration was governed entirely by the express language of the relevant preemption clauses. 505 U.S. at 517, 112 S.Ct. at 2618, 120 L.Ed.2d at 423. It is noteworthy, however, that the Cipollone court first determined that the other provisions of the relevant legislation offered no cause to look beyond the preemption clauses. Id. In fact, the court went on to analyze why implied conflict preemption did not apply, finding “no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common-law damages actions.” 505 U.S. at 518, 112 S.Ct. at 2618, 120 L.Ed.2d at 424.

In Freightliner the court went to great lengths to dismiss as meritless the proposition that Cipollone obviates the need for implied conflict preemption analysis where an act includes an express preemption clause, stating that “[a]t best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule.” 514 U.S. at 289, 115 S.Ct. at 1488, 131 L.Ed.2d at 393.

Finally, in Medtronic, Inc. v. Lohr (1996), 518 U.S.-, 116 S.Ct. 2240, 135 L.Ed.2d 700, Justice Stevens, writing for a majority of the court, refused to go beyond the facts of that case and state that the express preemption clause under consideration foreclosed the possibility that any common-law actions would ever be preempted. In so doing, Justice Stevens noted that even upon consideration of future cases properly raising specific express preemption issues, “the issue may not need to be resolved if the claim would also be preempted under conflict preemption analysis.” Id., 518 U.S. at-, 116 S.Ct. at 2259, 135 L.Ed.2d at 726.

The Supreme Court cases are not ambiguous. The existence of an express preemption clause does not excuse a court from determining whether implied preemption applies. While an express preemption clause may support an inference foreclosing implied preemption, it never forecloses an implied-preemption analysis.

. The Secretary has exercised his authority to promulgate safety standards by delegating that authority to the National Highway Traffic Safety Administration. Sections 1.50 and 501.2, Title 49, C.F.R.