United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 1998 Decided February 5, 1999
No. 98-7006
Alexis Geier, et al.,
Appellants
v.
American Honda Motor Company, Inc., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00064)
Arthur Bryant argued the cause for appellants. With him
on the briefs were Robert M.N. Palmer, William Petrus and
James W. Taglieri.
Benjamin S. Boyd argued the cause and filed the brief for
appellees. Philip L. Cohan entered an appearance.
Before: Williams, Ginsburg and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: The question on appeal is whether
federal law pre-empts a defective design lawsuit against the
American Honda Motor Company for damages arising from
injuries suffered by Alexis Geier1 when her 1987 Honda
Accord, which did not have an airbag, crashed into a tree.
The district court granted summary judgment for Honda on
the ground that the lawsuit was pre-empted by the National
Traffic and Motor Vehicle Safety Act of 1966, as amended, 15
U.S.C. s 1381 et seq. (Safety Act), and the Federal Motor
Vehicle Safety Standard 208, 49 C.F.R. s 571.208 (1997)
(Standard 208), which govern the passive safety restraints
that automobile manufacturers must install.2 Joining our
sister circuits, we affirm, concluding that Geier's lawsuit is
impliedly pre-empted.
I.
Under the Supremacy Clause of the Constitution, 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. In
applying this Clause, courts have identified three ways in
which a federal statute or regulation can pre-empt state law:
by express pre-emption, by "field" pre-emption (in which
Congress regulates the field "so extensively that [it] clearly
intends the subject area to be controlled only by federal
law"), and by implied or conflict pre-emption, which applies
when a state law conflicts with a federal statute or regulation.
Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir.
1998); see also Cipollone v. Liggett Group, 505 U.S. 504, 516
(1992). The Supreme Court has identified two presumptions
__________
1 Appellants are Alexis Geier, a minor at the time of the
accident, and her parents, William and Claire Geier. For ease of
reference we refer to appellants as "Geier."
2 The Safety Act is now codified at 49 U.S.C. s 30101 et seq.
Geier's complaint was filed after the recodification. The revisions,
however, were made "without substantive change" to the underlying
provisions. See Pub. L. No. 103-272, s 1(a), 108 Stat. 745, 745
(1994). Because the relevant circuit courts of appeal decisions, the
district court, and the parties all use the old designations, we will
use them as well.
that courts must consider when invoking the doctrine of pre-
emption. First, in areas where States have exercised their
historic police powers (such as the health and safety of their
citizens), courts must start with a presumption against pre-
emption, absent a "clear and manifest purpose of Congress."
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
Second, in every pre-emption case, "[t]he purpose of Con-
gress is the ultimate touchstone." Id. (quoting Retail Clerks
v. Schermerhorn, 375 U.S. 96, 103 (1963)).
For cars manufactured between September 1, 1986, and
September 1, 1987, the inclusion of a driver-side airbag was
one of several passive restraint "options" from which car
manufacturers could choose in order to comply with Standard
208.3 See 49 C.F.R. s 571.208, S4.1.3.1.1 (1997). The effect
of Standard 208 on state law is governed by two provisions of
the Safety Act. The first, 15 U.S.C. s 1392(d),4 provides:
[w]henever a Federal motor vehicle safety standard es-
tablished under this subchapter is in effect, no State or
political subdivision of a State shall have any authority
__________
3 The requirements of Standard 208 have become more strin-
gent. After September 1, 1989, car manufacturers had to install
"either an airbag or an automatic seatbelt that would signal the
driver with a warning light if the belt became unhooked." Harris
v. Ford Motor Co., 110 F.3d 1410, 1412 (9th Cir. 1997) (citing 49
C.F.R. s 571.208). Presently, passenger cars manufactured after
September 1, 1997, must have "an inflatable restraint system at the
driver's and right front passenger's position." 49 C.F.R. s 571.208,
S4.1.5.3 (1997). See generally Wood v. General Motors Corp., 865
F.2d 395, 398-99 (1st Cir. 1988).
4 Section 1392(d) is now codified at 49 U.S.C. s 30103(b)(1)
(1994), which uses similar language:
[w]hen a motor vehicle safety standard is in effect under this
chapter, a State or a political subdivision of a State 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 ....
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.
The second provision, 15 U.S.C. s 1397(k),5 a so-called sav-
ings clause, provides 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." Without stating whether it was adopting a theory of
express or implied pre-emption, the district court reasoned
that s 1392(d) pre-empted Geier's claim because recovery
under her common law tort theory might establish a safety
standard that was not identical to Standard 208. Adopting an
approach articulated by the First Circuit in Wood v. General
Motors Corp., 865 F.2d 395, 408 (1st Cir. 1988), and developed
by the Ninth Circuit in Harris v. Ford Motor Co., 110 F.3d
1410, 1415 (9th Cir. 1997), the district court ruled that al-
though ss 1397(k) and 1392(d) might appear to be in "direct
conflict[,] ... it is clear that both sections can be given effect
if the court finds that 'compliance with Federal standards
does not exempt anyone from any liability that the States
have authority to impose.' " Geier v. American Honda Motor
Co., CA. No. 95-64, at 3 (D.D.C. Dec. 10, 1997) (quoting
Harris, 110 F.3d at 1415). In the district court's view, a
State lacks authority to require airbags because s 1392(d)
and Standard 208 pre-empt such a requirement, and there-
fore no common law design defect claim remained for
s 1397(k) to preserve.
On appeal, Geier contends that the district court erred in
granting summary judgment because s 1392(d) expressly
preserved all common law claims against pre-emption and the
term "standards" in s 1392(d) applies only to state legislation
or regulations. Honda maintains that summary judgment
__________
5 Section 1397(k) is now codified, with some changes, at 49
U.S.C. s 30103(e) (1994): "Compliance with a motor vehicle safety
standard prescribed under this chapter does not exempt a person
from liability at common law."
was appropriate because the Safety Act either expressly pre-
empts Geier's lawsuit, or impliedly pre-empts it because a
verdict in her favor would conflict with Standard 208.6
II.
The Supreme Court has considered pre-emption under
s 1392(d), although it did not directly address the issues
presented in the instant appeal. Freightliner Corp. v.
Myrick, 514 U.S. 280 (1995), involved Standard 121, which
was promulgated by the National Highway Traffic Safety
Administration acting pursuant to the Safety Act, and re-
quired that tractor trailers stop within a certain distance.
For all practical purposes, Standard 121 required the installa-
tion of antilock braking systems ("ABS"). Following the
decision of the Ninth Circuit that Standard 121 was unsup-
ported by substantial evidence, see id. at 285 (citing Paccar,
Inc. v. NHTSA, 573 F.2d 632 (9th Cir. 1978)), a driver
seriously injured in a collision with an 18-wheel tractor-trailer
sued a truck manufacturer under a common-law state tort
theory, alleging that the absence of ABS on the truck was a
design defect that caused it to jackknife when the truck
driver attempted to make a sudden stop. See id. at 282-83.
In response, the manufacturer asserted that s 1392(d) ex-
pressly pre-empted such claims. The Supreme Court reject-
ed this argument, observing that in view of the Ninth Cir-
cuit's suspension of Standard 121,7 "[t]here is no express
federal standard addressing stopping distances or vehicle
stability for trucks and trailers" and that "States remain free
to 'establish, or to continue in effect,' their own safety stan-
dards concerning those 'aspect[s] of performance.' " Id. at
286 (quoting s 1392(d)) (alteration in original). The Court
__________
6 Honda does not maintain that field pre-emption applies.
7 The Ninth Circuit, in rejecting Standard 121, recognized that
further refinement of the ABS system might lead to greater public
safety. It thus held that the agency could enforce an ABS require-
ment if it could produce "more probative and convincing data
evidencing the reliability and safety" of vehicles with ABS. Paccar,
573 F.2d at 643.
further concluded that the claims were not impliedly pre-
empted because the absence of any federal regulation govern-
ing ABS meant that private parties would not face a conflict
between complying "with both federal and state law." Id. at
289. The Court also concluded that a finding of liability
against tractor-trailer manufacturers "would undermine no
federal objectives or purposes with respect to ABS devices."
Id. at 289-90. The Court explicitly left open the question
whether "the term 'standard' in 15 U.S.C. s 1392(d) pre-
empts only state statutes and regulations, but not common
law." Id. at 287 n.3. Although it referred to s 1397(k), see
id. at 284, the Court did not consider the relationship between
the pre-emption and savings clauses.
Thus far, five circuit courts of appeal have analyzed the
issue of pre-emption under the Safety Act when plaintiffs
have brought design defect claims based on the absence of
airbags. In each case, Section 208 did not require airbags for
the model-year cars in question, but presented them as one of
several options from which manufacturers could choose.
Four of the five circuit courts of appeal held that such claims
were impliedly pre-empted, while the Ninth Circuit held that
the claims were expressly pre-empted. See, e.g., Harris, 110
F.3d at 1416 (9th Cir.); Montag v. Honda Motor Co., 75 F.3d
1414, 1417 (10th Cir. 1996); Pokorny v. Ford Motor Co., 902
F.2d 1116, 1126 (3d Cir. 1990); Taylor v. General Motors
Corp., 875 F.2d 816, 827 (11th Cir. 1989);8 Wood, 865 F.2d at
412 (1st Cir.). Contemporaneously, however, a number of
state supreme courts have reached the opposite conclusion,
holding that the Safety Act does not preclude these types of
claims, relying heavily on the broad sweep of the savings
clause. See, e.g., Drattel v. Toyota Motor Corp., 699 N.E.2d
376, 382, 383-86 (N.Y. 1998); Munroe v. Galati, 938 P.2d
__________
8 The Eleventh Circuit recently reaffirmed Taylor. In Irving,
the court noted that although its decision in Myrick v. Fruehauf
Corp. stated that Taylor had been abrogated in part, see 136 F.3d
at 767 n.1 (citing Myrick, 13 F.3d 1516, 1521-22 (11th Cir. 1994)),
subsequent Supreme Court precedent made clear that "Taylor is
correct and can be used for evaluating preemption of state law."
Id.
1114, 1119-20 (Ariz. 1997); Tebbetts v. Ford Motor Co., 665
A.2d 345, 347-48 (N.H. 1995).
As noted, Geier contends that s 1392(k) expressly pre-
served "all common law claims" against pre-emption and that
the term "standards" in s 1392(d) applies only to state legis-
lation or regulations. This contention obviously cannot be
rejected out of hand, yet nor can Honda's contention that
"s 1392(d) expressly preempts state safety standards not
'identical' to applicable federal standards." In Honda's view,
because Standard 208 allowed car manufacturers the option
of choosing an airbag, a jury verdict in favor of Geier on her
design defect claim would require car manufactures to comply
with a different standard.9
The language of s 1392(d) is fairly sweeping, providing that
when a federal motor vehicle safety standard is in effect, "no
State or political subdivision of a State shall have any author-
ity 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. s 1392(d) (emphasis add-
ed). At a minimum, this language restricts a State's authori-
ty to enact legislation or regulations that affirmatively require
car manufacturers to adopt standards not identical to Stan-
dard 208. See Wood, 865 F.2d at 408. In other words, a
State could not require, by statute or regulation, that a car
manufacturer install airbags in models for which Standard
208 makes them only an option.
On its face, moreover, the term "standard" in s 1392(d)
could apply to the requirements imposed by common law tort
__________
9 However, Geier's contention that the term "safety standard"
in s 1392(d) applies to aspects of performance, while her lawsuit
involves a design defect, gets her nowhere for reasons noted by the
First Circuit in Wood, 865 F.2d at 416-17, including that although
design and performance standards are "analytically distinct, in
practice the line is not so clear," as here where "[b]y requiring seat
belts or passive restraints, [Standard] 208 has elements of a design
standard."
verdicts. As the Supreme Court has observed, state "regula-
tion can be as effectively exerted through an award of dam-
ages as through some form of preventive relief. The obli-
gation 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 (plurality opinion) (quoting San
Diego Building Trades Council v. Garmon, 359 U.S. 236, 247
(1959)); see also Harris, 110 F.3d at 1414; Wood, 865 F.2d at
410. So understood, the term "standard" in s 1392(d) is
broad enough to include duties established by state tort law.
See Wood, 865 F.2d at 410. As the Supreme Court's decision
in Medtronic, 518 U.S. 470, analyzing the Medical Device
Amendments of 1976 suggests, the use of the term "standard"
in the Safety Act and "requirements" in the Medical Device
Amendments appear to be for the same purpose, namely, to
establish that a State cannot impose a duty on manufacturers
that differs from those imposed by the federal government.10
Common law liability in this specific context, therefore, can
reasonably be viewed as constituting a "standard" that might
conflict with Standard 208.
Section 1392(d), however, cannot be viewed in isolation, see
American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490,
513 (1981), but must be interpreted in light of the savings
clause in s 1397(k), which provides that "[c]ompliance with
any Federal motor vehicle safety standard issued under this
subchapter does not exempt any person from any liability
__________
10 In Medtronic, five justices agreed that "state common-law
damages actions do impose 'requirements' and are therefore pre-
empted where such requirements would differ from those imposed"
by the statute. 518 U.S. at 509 (O'Connor, J., concurring in part
and dissenting in part); id. at 504 (Breyer, J., concurring in
judgment). The Medtronic plurality, in contrast, concluded the
term "requirements" was "linked with language suggesting that its
focus is device-specific enactments of positive law by legislative or
administrative bodies, not the application of general rules of com-
mon law by judges and juries," id. at 489, although it recognized
that the Court "on prior occasions concluded that a statute pre-
empting certain state 'requirements' could also pre-empt common-
law damages claims." Id. at 487-88.
under common law." Honda interprets this language as
preventing car manufacturers from using compliance with
federal safety standards as a defense to common law liability,
in cases where the State retains authority to impose such
liability, and there is legislative history to support this view.11
For example, Honda maintains that even with s 1392(d),
plaintiffs could still pursue design defect claims when federal
standards do not address the component at issue. The Ninth
Circuit in Harris reached a similar conclusion, noting that
"s 1392(d) removes the States' authority to subject anyone to
liability for the breach of non-identical safety standards. The
most reasonable and plausible reading of s 1397(k), therefore,
is that compliance with Federal standards does not exempt
anyone from any liability that the States have authority to
impose." 110 F.3d at 1415 (emphasis added). Cf. Wood, 865
F.2d at 412.
The conclusion that Geier's lawsuit is expressly pre-empted
by the Safety Act is problematic, however, for two reasons.
First, the interpretation of the two provisions adopted by
Harris is not the only one available. For example, the broad
language of the savings clause raises doubts that Congress
intended to preserve State authority to impose standards only
to the extent that the pre-emption clause did not take that
power away. As the Court of Appeals of New York observed,
"[i]t strains reason and common sense to suggest that Con-
gress used sweeping language to create a constricted uni-
verse." Drattel, 699 N.E.2d at 382. The inclusion of a
broadly worded savings clause such as s 1397(k) indicates
that Congress did not wish to deprive plaintiffs of all their
remedies at common law. To read s 1397(k) too narrowly
__________
11 H.R. Rep. No. 1776, at 24 (1966) ("It is intended, and this
subsection [s 1397(k)] specifically establishes, that compliance with
safety standards is not to be a defense or otherwise to affect the
rights of parties under common law...."); S. Rep. No. 1301, at 12
(1966) (noting that "the Federal minimum safety standards need not
be interpreted as restricting State common law standards of care.
Compliance with such standards would thus not necessarily shield
any person from product liability at common law").
would undermine the section's express language preserving
common law liability. Pokorny, 902 F.2d at 1121.
Second, the presumption against pre-emption counsels
against finding express pre-emption when the purpose of
Congress is not clear from the statute's language. In light of
the apparent tension between ss 1392(d) and 1397(k), it
would be difficult to discern from the Act a "clear and
manifest purpose of Congress" to pre-empt a design defect
claim based on the absence of an airbag. See Medtronic, 518
U.S. at 485. Four other circuits agree. See Pokorny, 902
F.2d at 1121 (3d Cir.); Taylor, 875 F.2d at 823-25 (11th
Cir. ); Kitts v. General Motors Corp., 875 F.2d 787, 789 (10th
Cir. 1989); Wood, 865 F.2d at 401 (1st Cir.).12
Ultimately, we need not resolve whether Geier's claim is
expressly pre-empted, however, because we conclude that a
verdict in her favor would stand as an obstacle to the federal
government's chosen method of achieving the Act's safety
objectives, and consequently, the Act impliedly pre-empts her
lawsuit. The conclusion arises largely from the position
__________
12 Although these circuits reject express pre-emption of no-
airbag claims, their analysis differs. The First Circuit, for example,
suggested that Congress in 1966 did not contemplate the develop-
ment within state tort law of design defect claims that might
conflict with federal safety standards. Wood, 865 F.2d at 403-04.
As a result, the Wood court found no congressional intent either to
pre-empt this type of action under section 1392(d) or to preserve it
under the savings clause. Id. at 407. Cf. Kitts, 875 F.2d at 789
(adopting Wood's implied pre-emption analysis without discussing in
detail the express pre-emption issue). The Third and Eleventh
Circuits have criticized the Wood court's express pre-emption analy-
sis, concluding that the savings clause covers design defect claims.
Pokorny, 902 F.2d at 1121 n.6; Taylor, 875 F.2d at 825. The
Eleventh Circuit agreed with the First Circuit, however, that
express pre-emption did not apply in view of the conflict between
the pre-emption and savings clauses and "the failure of Congress
explicitly to include reference to state common law in the Act's
preemption clause." Id. The Third Circuit also noted that Con-
gress in other statutes had explicitly referred to common law
actions when it sought to pre-empt them. 902 F.2d at 1121.
advanced by Honda, in the alternative, that state jury ver-
dicts that hold manufacturers liable for not installing airbags
will create a conflict with Standard 208.
As a threshold matter, we are unpersuaded by Geier's
contention, relying on Cipollone, that the court cannot reach
the implied pre-emption argument because congressional in-
tent is expressly stated in s 1397(k), which saves all common
law claims from pre-emption, and therefore only express pre-
emption analysis is applicable. It is true that the Supreme
Court in Cipollone observed that when Congress has included
a provision explicitly addressing the issue of pre-emption, and
when that provision provides a reliable indicium of con-
gressional intent with respect to state authority, there is
no need to infer congressional intent to pre-empt state
laws from substantive provisions of the legislation....
Congress' enactment of a provision defining the pre-
emptive reach of a statute implies that matters beyond
that reach are not pre-empted.
505 U.S. at 517 (citations and internal quotation marks omit-
ted). But the Supreme Court has also rejected Geier's
interpretation. In Myrick, the Court noted that some circuit
courts of appeal had read Cipollone to mean that "implied
pre-emption cannot exist when Congress has chosen to in-
clude an express pre-emption clause in a statute. This argu-
ment is without merit." Myrick, 514 U.S. at 287. The Court
instructed that the presence of "an express definition of the
pre-emptive reach of a statute" only creates a reasonable
inference "that Congress did not intend to pre-empt other
matters." Id. at 288. Such a clause does not "entirely
foreclose[ ] any possibility of implied pre-emption." Id.
The tension between ss 1392(d) and 1397(k) prevents the
identification of any "express definition" of the reach of pre-
emption in the Safety Act. Furthermore, in Myrick the
Supreme Court engaged in implied pre-emption analysis of
the Safety Act after concluding that s 1392(d) did not "ex-
pressly extinguish state tort law" for no-ABS claims. Id. at
287; see also Montag, 75 F.3d at 1417. Rejecting the argu-
ment that Cipollone barred consideration of implied pre-
emption in all cases involving express pre-emption language,
the Supreme Court concluded that no implied pre-emption
existed on the facts before it because "there is simply no
federal standard for a private party to comply with."
Myrick, 514 U.S. at 289. Therefore, Cipollone does not bar
this court from considering Honda's implied pre-emption
argument.
Implied conflict pre-emption occurs "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." Id. at 287 (internal quotation marks
omitted). Federal regulations, as well as federal statutes, can
pre-empt conflicting state law. Pokorny, 902 F.2d at 1122;
see also Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458
U.S. 141, 153 (1982). Unlike Myrick, in which the Supreme
Court found no implied pre-emption, see 514 U.S. at 288, the
instant case involves a federal safety standard that governs
the use of airbags in 1987 model-year cars. Although the
standard does not mandate or forbid the use of airbags, it
presents them as one of several options from which manufac-
turers may choose. While Geier maintains not unpersuasive-
ly that a design defect lawsuit based on the absence of an
airbag does not conflict with Standard 208 because Honda can
be held accountable under state law for failing to do more
than the minimum required by the option it chose (i.e.
installing a manual seat belt with a warning light), her
argument fails to surmount the obstacle that a favorable
verdict would present to achieving congressional objectives in
the chosen manner. As the First Circuit observed in Wood,
allowing liability for the absence of airbags would "interfere[ ]
with the method by which Congress intended to meet" its
goal of increasing automobile safety. Wood, 865 F.2d at 408.
A successful no-airbag claim would mean that an automobile
without an airbag was defectively designed. Congress, how-
ever, delegated authority to prescribe specific motor vehicle
safety standards to the Secretary of Transportation, see 49
U.S.C. s 30111(a) (1994), who in turn explicitly rejected re-
quiring airbags in all cars on the ground that a more flexible
approach would better serve public safety. 49 Fed. Reg.
28,962, 29,000-02 (1984).
The tortured history of Section 208 demonstrates that
federal regulators have vacillated on the relative merits of
requiring or including airbags in passenger vehicles. See
Wood, 865 F.2d at 398-99. It also reveals how far public
acceptance of air bags has come and, concomitantly, the
success of the Secretary's decision on how to implement the
Act. When the Secretary promulgated the regulations at
issue in this case, she rejected an all-airbag rule out of
concern that notwithstanding the safety benefits of airbags,
the public might respond negatively to the unfamiliar technol-
ogy if it was required in all cars. 49 Fed. Reg. at 28,989. In
the Secretary's view, gradually phasing in airbags could po-
tentially address "unfounded" fears among members of the
public that airbags were unsafe because affording consumers
a choice among passive restraint systems would expose them
to the benefits of the airbag technology. Id. at 28,988, 29,001.
Cf. State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474,
488-89 (D.C. Cir. 1986). At the same time, the Secretary was
concerned that not affording manufacturers discretion to
install an automatic occupant restraint system ran the risk of
impeding the development of more effective protective sys-
tems. 49 Fed. Reg. at 29,001. Thus, a performance standard
making airbags one of several options car manufacturers
could choose to comply with the passive restraint require-
ments of Standard 208, rather than mandating specific use of
one safety device, would advance public safety in two re-
spects, by allowing consumers to adjust to the new technology
and by permitting experimentation with designs for even
safer systems. 49 Fed. Reg. at 28,988, 28,997.
With this history in mind, and consistent with the policy
decision made by the Secretary, we conclude that allowing
design defect claims based on the absence of an airbag for the
model-year car at issue would frustrate the Department's
policy of encouraging both public acceptance of the airbag
technology and experimentation with better passive restraint
systems. Even if the Secretary's gradual adoption of an
airbag requirement has increased public acceptance of the
technology over time, concerns about public reaction still
existed when Geier's 1987 Honda was manufactured. Fur-
thermore, regardless of possible fluctuations in public accep-
tance of airbags at that time, the concern about fostering the
most effective passive restraint systems through experimen-
tation remained. Therefore, "[b]ecause potential common law
liability interferes with the regulatory methods chosen by the
federal government to achieve the Safety Act's stated goals,"
Pokorny, 902 F.2d at 1123, Geier's lawsuit claiming that the
car she was driving was defectively designed because it
lacked airbags is implicitly pre-empted.13 Accordingly, we
affirm the grant of summary judgment to Honda.
__________
13 Contrary to Geier's contention, our conclusion is not at odds
with the position taken by the United States in prior Safety Act
cases. The United States has previously contended that s 1392(d)
"does not expressly or impliedly preempt design defect tort actions
based on the claim that a vehicle was defective simply because it did
not contain an airbag." Brief of the United States as Amicus
Curiae, on Petition for a Writ of Certiorari at 7, Wood v. General
Motors Corp., 494 U.S. 1065 (1990) (No. 89-46). But, the United
States ultimately concluded that a no-airbag claim was pre-empted
in Wood because the Department of Transportation specifically
determined that "an all airbag rule would disserve the safety
purposes of the Act" and that this policy "would be disrupted by
tort liability, which therefore would be preempted." Id. at 15
(emphasis in original). "If manufacturers are held liable for not
installing airbags, ... [a sizeable damage award against them] is
likely to lead auto makers to install airbags in all cars. That
outcome would obviously eliminate the diversity that the Secretary
[of Transportation] found necessary to promote motor vehicle safe-
ty." Id. at 13-14; see also Brief of the United States as Amicus
Curiae, on Petition for a Writ of Certiorari at 28, Freightliner Corp.
v. Myrick, 514 U.S. 280 (1995) (No. 94-286).