Air Bag Warning Claim Preempted; ‘Scarlet Letter’ Sanction Ordered

New York Law Journal

In our March column, “Supreme Court Speaks (Again) on Preemption of Lawsuits,”¹  we reported on the Supreme Court’s decision in Williamson v. Mazda Motor of America Inc.² holding 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.,³  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.

Federal preemption of certain kinds of automotive products liability claims continues to be a battleground despite Williamson’s narrowing of the opening. In the March column, referring to several specific cases, we talked about side window glass litigation where some plaintiffs’ experts have urged that laminated glass should have been used instead of tempered glass. Just weeks ago, a new post-Williamson preemption ruling emerged, this time involving air bag warnings, as prescribed by FMVSS 208 which requires 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.,⁴ issued on March 23, 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. Plaintiff drove her 1996 Mitsubishi Eclipse into the rear of a flatbed truck stopping for a bus. The air bag deployed. She 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. Plaintiff’s and defendant’s experts were in accord about the relative speeds of the vehicles but disputed the change in velocity of 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 plaintiff applied her brakes immediately prior to the collision.

Considerable attention was focused by defendant’s expert on the plaintiff’s seating position. The expert opined that 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 plaintiff’s doctors wrote in his medical notes that plaintiff “bent down while driving and ran into a flatbed truck.” The doctor’s notes did not state whether 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. Defendant moved for partial summary judgment on the manufacturing and design defect claims, but this motion was denied because factual issues were presented.

Defendant also moved for partial summary judgment on the warning claim because it was preempted. 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.,⁵ 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.”⁶  The court in Fisher declined to reach the question 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.”⁷  Accordingly, following the logic set out in Fisher, Judge Peterson was persuaded that NHTSA was concerned about “information overload,” and that plaintiff’s warning claim was preempted. As for warnings that may not conflict with FMVSS 208, 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.”⁸

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 which he issued on March 1 in a case called Green v. Blitz U.S.A. Inc.?⁹ Blitz manufactures gas cans. Plaintiff Rene Green filed a products 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 that a flame arrester was not included because they 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.

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. 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.

Plaintiff contended that Blitz failed to produce certain documents and failed to preserve 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 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 the company’s areas that the documents would most likely be in. 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 or 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 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 defendant to pay $250,000 in civil contempt sanctions to 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 plaintiff would have had the documents.¹⁰  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 is 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 is 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 is a member of Herzfeld & Rubin.

Endnotes

1. New York Law Journal, March 14, 2011, p. 3.
2. No. 08—1314 (U.S. Sup. Ct. Feb. 23, 2011).
3. 529 U.S. 861 (2000).
4. 2011 U.S. Dist. LEXIS 30229 (E.D. Wash. March 23, 2011).
5. 224 F.3d 570 (6th Cir. 2000).
6. Quoting from Fisher, 224 F.3d at 574.
7. Morris, 2011 U.S. Dist. LEXIS 30229, at *26—*27 (quoting from 58 Fed. Reg. 46551).
8. Morris, 2011 U.S. Dist. LEXIS at *27—*28.
9. 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. March 1, 2011).
10. Green, 2011 U.S. Dist. LEXIS 20353, at *32—*33.