Air Bag Warning Claim Preempted

Two recent cases highlight issues of importance to practitioners. One case dealt with preemption; the other with discovery sanctions.

1. Preemption

In Williamson v. Mazda Motor of America Inc., No. 08-1314 (U.S. Sup. Ct. Feb. 23, 2011), the U.S. Supreme Court held that a California lawsuit attacking the rear aisle seat lap belt as defective in design was not preempted, even though the Federal Motor Vehicle Safety Standard (FMVSS) allowed manufacturers a choice of installing either a lap belt or a lap-and-shoulder belt. The Court reasoned that the choice or option was not a “significant objective” of the federal regulation dealing with rear seat restraints. On the other hand, in Geier v. American Honda Motor Co., 529 U.S. 861 (2000), the Court held that a “no-air-bag” lawsuit attacking the manufacturers' choice of a lap-and-shoulder belt in the front seat, one of several options permitted by FMVSS 208, was preempted. Williamson distinguishes Geier as a case where the restraint options were a “significant objective” of the regulation.

The Automotive Product Liability Battleground

Federal preemption of certain kinds of automotive product liability claims continues to be a battleground despite Williamson's narrowing of the opening. A prior article analyzing the Williamson case discussed side window glass litigation in which some plaintiffs' experts have urged that laminated glass should have been used instead of tempered glass. “Supreme Court Speaks (Again) on Preemption of Lawsuits,” New York Law Journal, March 14, 2011. Recently, a new post-Williamson preemption ruling emerged, this time involving air bag warnings, as prescribed by FMVSS 208, which requires that labels that must be permanently affixed to the sun visors for front outboard seating positions.

These labels are to provide warnings to the driver and front passenger regarding certain risks of “inflatable restraints,” commonly called air bags. FMVSS 208 sets forth the specific language to appear on the labels. What if a plaintiff wishes to file a warnings claim alleging that a different warning should have been given? The new decision, Morris v. Mitsubishi Motors North America Inc., 2011 U.S. Dist. LEXIS 30229 (E.D. Wash. March 23, 2011), comes from a federal judge in the State of Washington, Rosanna Malouf Peterson, and holds such a warnings claim to be preempted, notwithstanding the Supreme Court's Williamson decision a month earlier.

The facts are interesting. The plaintiff drove her 1996 Mitsubishi Eclipse into the rear of a flatbed truck stopping for a bus. The air bag deployed. Peterson sustained an atlanto-occipital dislocation, in which her spinal cord was severed, resulting in incomplete quadriplegia and paralysis. The parties agree that her injuries resulted from the air bag deployment and not from the impact of the collision. The plaintiff's and defendant's experts were in accord about the relative speeds of the vehicles, but disputed the change in velocity of the plaintiff's vehicle at collision and the change in velocity thresholds for deployment to the 1996 Eclipse's air bags. The parties also disputed whether the plaintiff applied her brakes immediately prior to the collision.

Considerable attention was focused by the defendant's expert on the plaintiff's seating position. The expert opined that the plaintiff was inattentive and out of her proper seating position. Had she not been bending down to pick something off the floor, she likely would have been properly seated and would not have been severely injured. One of the plaintiff's doctors wrote in his medical notes that the plaintiff “bent down while driving and ran into a flatbed truck.” The doctor's notes did not state whether the plaintiff reported the bending down to the doctor or whether the doctor inferred that from the nature of her injuries.

Air Bag Risks

Mitsubishi maintained that the air bag deployment threshold relied primarily on the measure of the change in velocity experienced by the vehicle during a crash, the so-called “Delta-V.” The deployment threshold has to be low enough to prevent or minimize injuries in lower-speed collisions as well as high. When the air bag is triggered, it inflates very fast and comes forward with great force. The occupant should be lap-and-shoulder belted ' the air bag is only deemed a “supplemental restraint system” ' and this proper seating position is important to the overall envelope of interface between the belted occupant and the deploying air bag. If the occupant is too close or out of position or bending down to pick up something, there are risks of injury.

The Mitsubishi Owners Manual warned in bold capital print that it was “very important to be properly seated,” that if the driver and passenger “are not properly seated, the air bag may not protect you properly and could cause injury when it inflates.” Drivers were told to “adjust the driver's seat as far back as possible while still maintaining control of the car.” Further, the properly belted driver and front passenger were told to “sit upright with backs against the seat backs.”

The sun visor bore a label warning that “you must always wear your safety belt”; not to install “rearward-facing child seats in any front passenger seat position”; not to “sit or lean unnecessarily close to the air bag,” among other cautions. The specific language and placement of the sun visor warning label was mandated by FMVSS 208. The regulation said, “this label shall read:” and then set forth the text that was placed on the Mitsubishi visor involved in the case. The defendant moved for partial summary judgment on the manufacturing and design defect claims, but this motion was denied because factual issues were presented.

The defendant also moved for partial summary judgment on the warning claim because it was preempted. The plaintiff argued that even if the label's verbiage were fixed by the regulation, that did not prevent manufacturers from including other warnings in their owner's manuals or elsewhere in the vehicle other than the sun visor. Judge Peterson, however, looked to a post-Geier Sixth Circuit decision called Fisher v. Ford Motor Co., 224 F.3d 570 (6th Cir. 2000), which held preempted a failure-to-warn claim proposing that additional and different warning labels should have been given, including a warning about increased risk from air bags to drivers of short stature.

The Sixth Circuit ruled that the safety agency (National Highway Traffic Safety Administration) “thought of its warning language as not simply the minimum, but as the sole language it wanted on the subject.” The safety agency “feared 'information overload,' i.e., that additional warnings would distract from the warnings it had determined were critical, leading consumers not to focus properly on the latter.” The court in Fisher declined to reach the question of whether additional identical labels placed elsewhere than the visor would also be preempted.

The safety agency said that the goal of the label's text was to ensure achieving “the optimal balance between the need to inform the public about the types of occupant behavior and uses that may reduce the effectiveness of air bags and the equally important need of avoiding a label with added language that would potentially create an information overload.” Morris, 2011 U.S. Dist. LEXIS 30229, at *26-*27 (quoting from 58 Fed. Reg. 46551) Accordingly, following the logic set out in Fisher, Judge Peterson was persuaded that NHTSA was concerned about “information overload,” and that the plaintiff's warning claim was preempted. As for warnings that may not conflict with FMVSS 208, the plaintiff did not offer a “developed theory or evidence” supporting the failure-to-warn claim. For example, no scenario was offered “in which a different warning than those included on the visor or in the owners manual would have prevented her injuries.” Likewise, there was no evidence presented that “the absence of any particular information proximately caused her injuries in the collision.”

2. Discovery Failures

Did T. John Ward, U.S. District Judge for the Eastern District of Texas, take a cue from Nathaniel Hawthorne's classic, “The Scarlet Letter,” when he fashioned a discovery sanctions order issued on March 1 in Green v. Blitz U.S.A. Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. March 1, 2011)?

Blitz manufactures gas cans. Plaintiff Rene Green filed a product liability lawsuit, one of several similar cases, claiming that a gas can caused the death of Brody Green because it lacked a flame arrester. Blitz defended, arguing that a flame arrester was not included because such devices are ineffective. At trial, before the jury returned a verdict, the parties entered into a high-low settlement agreement. The jury returned a unanimous defense verdict triggering the “low” settlement figure.

The plaintiff's counsel in this case also represented another plaintiff in a different Texas district court. There, a year after the trial in Green, he learned of defense documents that were not produced in Green. The plaintiff moved for sanctions and to reopen the case. A magistrate judge issued a recommendation not to reopen the case because of the one-year statute of limitations in FRCP 60(b)(1)-(3). The district judge adopted this conclusion. The court, however, focused on the motion for discovery abuse. Apparently, the defendant had been accused of discovery abuse in other cases involving flame arrester claims and had been sanctioned.

The plaintiff contended that Blitz failed to produce certain documents and failed to preserve other documents. The majority of these related to the flame arrester or to the company's interest in potentially using one in its gas cans. The court described the defendant's approach to responding to discovery. It had a single employee, who was computer illiterate, responsible for searching for and collecting documents relevant to ongoing litigation. He would meet with the local defense attorney, try to understand what was relevant for production, and then talk with employees from the areas in the company in which the documents would most likely be located. Thereafter, a national coordinating counsel was brought in, and this employee would get his understanding as to what was needed from him. He testified that he was a “face-to-face guy” and would talk with the pertinent people regarding the documents sought. He did not institute a litigation hold, did not do any electronic word searches for e-mails and did not talk with the IT department regarding how to search for electronic documents.

Next, the court considered some of the documents not produced. One of these came to be known as the “Wish List,” a letter from the defendant's former CEO to the employee with the subject label, “My Wish List.” The top line of the letter reads, “Expectations for Gas Cans (to be completed in next 2 yrs.).” The second point stated: “Develop and introduce device to eliminate flashback from a flame source. Once this is developed we should advocate the device be standardized under ASTM req's [sic] or laws.” Another document acknowledged that the marine industry uses flame arresters “in all the boat tanks, so the technology and testing has to be in place today.”

Sanctions Ordered

Based on the failure to disclose these and other documents, the court found a willful violation of the court's discovery order. Further, in the proposed pretrial order submitted by the parties, counsel had certified that “full and complete disclosure has been made in accordance with the Federal Rules of Civil Procedure and the Court's orders.” The failure to issue a litigation hold and to search electronically meant that there was not a reasonable search made for responsive documents and, further, that documents were not preserved. During this time, documents were routinely deleted. Further, due to rotation of defendant's backup tapes every two weeks, the deleted employee e-mails were permanently lost.

As a result, the court awarded sanctions for discovery abuse. First, the court ordered the defendant to pay $250,000 in civil contempt sanctions to the plaintiff, intended to “compensate the plaintiff for losses sustained due to ' multiple discovery violations.” The court found “the settlement would have been not less than $250,000,” but higher if the plaintiff had had the documents. Green, 2011 U.S. Dist. LEXIS 20353, at *32-33. The court clarified that the sanctions were directed at Blitz and not its attorneys.

Next, the court additionally ordered a “purging sanction” of $500,000. This would be tolled for 30 days from the date of the court's memorandum and order. At the end of 30 days, if Blitz certified to the court that it has provided a copy of the court's memorandum and order to “every plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years,” then the $500,000 civil sanction would be extinguished. The “purging sanction” was deemed allowable under Fifth Circuit law. Its purpose was to “coerce the defendant into compliance with the court's order.”

Finally, the court issued a sanction to “encourage future compliance.” For the next five years from the date of the memorandum order, Blitz was ordered that in every new lawsuit it participates in as a party, whether plaintiff, defendant, or in another official capacity, it “must file a copy of this Memorandum Opinion and Order with its first pleading or filing in that particular court.” This is intended to “ensure that Blitz complies with future discovery obligations.”

Maybe “The Scarlet Letter” will become required reading for compliance with discovery obligations.

Michael Hoenig, a member of this newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Two recent cases highlight issues of importance to practitioners. One case dealt with preemption; the other with discovery sanctions.

1. Preemption

In Williamson v. Mazda Motor of America Inc., No. 08-1314 (U.S. Sup. Ct. Feb. 23, 2011), the U.S. Supreme Court held that a California lawsuit attacking the rear aisle seat lap belt as defective in design was not preempted, even though the Federal Motor Vehicle Safety Standard (FMVSS) allowed manufacturers a choice of installing either a lap belt or a lap-and-shoulder belt. The Court reasoned that the choice or option was not a “significant objective” of the federal regulation dealing with rear seat restraints. On the other hand, in Geier v. American Honda Motor Co. , 529 U.S. 861 (2000), the Court held that a “no-air-bag” lawsuit attacking the manufacturers' choice of a lap-and-shoulder belt in the front seat, one of several options permitted by FMVSS 208, was preempted. Williamson distinguishes Geier as a case where the restraint options were a “significant objective” of the regulation.

The Automotive Product Liability Battleground

Federal preemption of certain kinds of automotive product liability claims continues to be a battleground despite Williamson's narrowing of the opening. A prior article analyzing the Williamson case discussed side window glass litigation in which some plaintiffs' experts have urged that laminated glass should have been used instead of tempered glass. “Supreme Court Speaks (Again) on Preemption of Lawsuits,” New York Law Journal, March 14, 2011. Recently, a new post-Williamson preemption ruling emerged, this time involving air bag warnings, as prescribed by FMVSS 208, which requires that labels that must be permanently affixed to the sun visors for front outboard seating positions.

These labels are to provide warnings to the driver and front passenger regarding certain risks of “inflatable restraints,” commonly called air bags. FMVSS 208 sets forth the specific language to appear on the labels. What if a plaintiff wishes to file a warnings claim alleging that a different warning should have been given? The new decision, Morris v. Mitsubishi Motors North America Inc., 2011 U.S. Dist. LEXIS 30229 (E.D. Wash. March 23, 2011), comes from a federal judge in the State of Washington, Rosanna Malouf Peterson, and holds such a warnings claim to be preempted, notwithstanding the Supreme Court's Williamson decision a month earlier.

The facts are interesting. The plaintiff drove her 1996 Mitsubishi Eclipse into the rear of a flatbed truck stopping for a bus. The air bag deployed. Peterson sustained an atlanto-occipital dislocation, in which her spinal cord was severed, resulting in incomplete quadriplegia and paralysis. The parties agree that her injuries resulted from the air bag deployment and not from the impact of the collision. The plaintiff's and defendant's experts were in accord about the relative speeds of the vehicles, but disputed the change in velocity of the plaintiff's vehicle at collision and the change in velocity thresholds for deployment to the 1996 Eclipse's air bags. The parties also disputed whether the plaintiff applied her brakes immediately prior to the collision.

Considerable attention was focused by the defendant's expert on the plaintiff's seating position. The expert opined that the plaintiff was inattentive and out of her proper seating position. Had she not been bending down to pick something off the floor, she likely would have been properly seated and would not have been severely injured. One of the plaintiff's doctors wrote in his medical notes that the plaintiff “bent down while driving and ran into a flatbed truck.” The doctor's notes did not state whether the plaintiff reported the bending down to the doctor or whether the doctor inferred that from the nature of her injuries.

Air Bag Risks

Mitsubishi maintained that the air bag deployment threshold relied primarily on the measure of the change in velocity experienced by the vehicle during a crash, the so-called “Delta-V.” The deployment threshold has to be low enough to prevent or minimize injuries in lower-speed collisions as well as high. When the air bag is triggered, it inflates very fast and comes forward with great force. The occupant should be lap-and-shoulder belted ' the air bag is only deemed a “supplemental restraint system” ' and this proper seating position is important to the overall envelope of interface between the belted occupant and the deploying air bag. If the occupant is too close or out of position or bending down to pick up something, there are risks of injury.

The Mitsubishi Owners Manual warned in bold capital print that it was “very important to be properly seated,” that if the driver and passenger “are not properly seated, the air bag may not protect you properly and could cause injury when it inflates.” Drivers were told to “adjust the driver's seat as far back as possible while still maintaining control of the car.” Further, the properly belted driver and front passenger were told to “sit upright with backs against the seat backs.”

The sun visor bore a label warning that “you must always wear your safety belt”; not to install “rearward-facing child seats in any front passenger seat position”; not to “sit or lean unnecessarily close to the air bag,” among other cautions. The specific language and placement of the sun visor warning label was mandated by FMVSS 208. The regulation said, “this label shall read:” and then set forth the text that was placed on the Mitsubishi visor involved in the case. The defendant moved for partial summary judgment on the manufacturing and design defect claims, but this motion was denied because factual issues were presented.

The defendant also moved for partial summary judgment on the warning claim because it was preempted. The plaintiff argued that even if the label's verbiage were fixed by the regulation, that did not prevent manufacturers from including other warnings in their owner's manuals or elsewhere in the vehicle other than the sun visor. Judge Peterson, however, looked to a post- Geier Sixth Circuit decision called Fisher v. Ford Motor Co. , 224 F.3d 570 (6th Cir. 2000), which held preempted a failure-to-warn claim proposing that additional and different warning labels should have been given, including a warning about increased risk from air bags to drivers of short stature.

The Sixth Circuit ruled that the safety agency (National Highway Traffic Safety Administration) “thought of its warning language as not simply the minimum, but as the sole language it wanted on the subject.” The safety agency “feared 'information overload,' i.e., that additional warnings would distract from the warnings it had determined were critical, leading consumers not to focus properly on the latter.” The court in Fisher declined to reach the question of whether additional identical labels placed elsewhere than the visor would also be preempted.

The safety agency said that the goal of the label's text was to ensure achieving “the optimal balance between the need to inform the public about the types of occupant behavior and uses that may reduce the effectiveness of air bags and the equally important need of avoiding a label with added language that would potentially create an information overload.” Morris, 2011 U.S. Dist. LEXIS 30229, at *26-*27 (quoting from 58 Fed. Reg. 46551) Accordingly, following the logic set out in Fisher, Judge Peterson was persuaded that NHTSA was concerned about “information overload,” and that the plaintiff's warning claim was preempted. As for warnings that may not conflict with FMVSS 208, the plaintiff did not offer a “developed theory or evidence” supporting the failure-to-warn claim. For example, no scenario was offered “in which a different warning than those included on the visor or in the owners manual would have prevented her injuries.” Likewise, there was no evidence presented that “the absence of any particular information proximately caused her injuries in the collision.”

2. Discovery Failures

Did T. John Ward, U.S. District Judge for the Eastern District of Texas, take a cue from Nathaniel Hawthorne's classic, “The Scarlet Letter,” when he fashioned a discovery sanctions order issued on March 1 in Green v. Blitz U.S.A. Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. March 1, 2011)?

Blitz manufactures gas cans. Plaintiff Rene Green filed a product liability lawsuit, one of several similar cases, claiming that a gas can caused the death of Brody Green because it lacked a flame arrester. Blitz defended, arguing that a flame arrester was not included because such devices are ineffective. At trial, before the jury returned a verdict, the parties entered into a high-low settlement agreement. The jury returned a unanimous defense verdict triggering the “low” settlement figure.

The plaintiff's counsel in this case also represented another plaintiff in a different Texas district court. There, a year after the trial in Green, he learned of defense documents that were not produced in Green. The plaintiff moved for sanctions and to reopen the case. A magistrate judge issued a recommendation not to reopen the case because of the one-year statute of limitations in FRCP 60(b)(1)-(3). The district judge adopted this conclusion. The court, however, focused on the motion for discovery abuse. Apparently, the defendant had been accused of discovery abuse in other cases involving flame arrester claims and had been sanctioned.

The plaintiff contended that Blitz failed to produce certain documents and failed to preserve other documents. The majority of these related to the flame arrester or to the company's interest in potentially using one in its gas cans. The court described the defendant's approach to responding to discovery. It had a single employee, who was computer illiterate, responsible for searching for and collecting documents relevant to ongoing litigation. He would meet with the local defense attorney, try to understand what was relevant for production, and then talk with employees from the areas in the company in which the documents would most likely be located. Thereafter, a national coordinating counsel was brought in, and this employee would get his understanding as to what was needed from him. He testified that he was a “face-to-face guy” and would talk with the pertinent people regarding the documents sought. He did not institute a litigation hold, did not do any electronic word searches for e-mails and did not talk with the IT department regarding how to search for electronic documents.

Next, the court considered some of the documents not produced. One of these came to be known as the “Wish List,” a letter from the defendant's former CEO to the employee with the subject label, “My Wish List.” The top line of the letter reads, “Expectations for Gas Cans (to be completed in next 2 yrs.).” The second point stated: “Develop and introduce device to eliminate flashback from a flame source. Once this is developed we should advocate the device be standardized under ASTM req's [sic] or laws.” Another document acknowledged that the marine industry uses flame arresters “in all the boat tanks, so the technology and testing has to be in place today.”

Sanctions Ordered

Based on the failure to disclose these and other documents, the court found a willful violation of the court's discovery order. Further, in the proposed pretrial order submitted by the parties, counsel had certified that “full and complete disclosure has been made in accordance with the Federal Rules of Civil Procedure and the Court's orders.” The failure to issue a litigation hold and to search electronically meant that there was not a reasonable search made for responsive documents and, further, that documents were not preserved. During this time, documents were routinely deleted. Further, due to rotation of defendant's backup tapes every two weeks, the deleted employee e-mails were permanently lost.

As a result, the court awarded sanctions for discovery abuse. First, the court ordered the defendant to pay $250,000 in civil contempt sanctions to the plaintiff, intended to “compensate the plaintiff for losses sustained due to ' multiple discovery violations.” The court found “the settlement would have been not less than $250,000,” but higher if the plaintiff had had the documents. Green, 2011 U.S. Dist. LEXIS 20353, at *32-33. The court clarified that the sanctions were directed at Blitz and not its attorneys.

Next, the court additionally ordered a “purging sanction” of $500,000. This would be tolled for 30 days from the date of the court's memorandum and order. At the end of 30 days, if Blitz certified to the court that it has provided a copy of the court's memorandum and order to “every plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years,” then the $500,000 civil sanction would be extinguished. The “purging sanction” was deemed allowable under Fifth Circuit law. Its purpose was to “coerce the defendant into compliance with the court's order.”

Finally, the court issued a sanction to “encourage future compliance.” For the next five years from the date of the memorandum order, Blitz was ordered that in every new lawsuit it participates in as a party, whether plaintiff, defendant, or in another official capacity, it “must file a copy of this Memorandum Opinion and Order with its first pleading or filing in that particular court.” This is intended to “ensure that Blitz complies with future discovery obligations.”

Maybe “The Scarlet Letter” will become required reading for compliance with discovery obligations.

Michael Hoenig, a member of this newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.