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Hernandez-Gomez v. Leonardo5/14/1996
did not deal with § 1397(k), the savings clause. The Court characterized § 1392(d) as the express preemption clause and § 1397(k) as the savings clause. Id. at , 115 S. Ct. at 1486. In its dealing with express and implied preemption, the Court looked only to § 1392(d) and not to § 1397(k). The Court said "we also need not address respondents' claim that the savings clause, § 1397(k), does not permit a manufacturer to use a federal safety standard to immunize itself from state common-law liability." Id. at n.3 115 S. Ct. at 1487 n.3.
Myrick simply stands for the proposition that even where an express preemption clause does not extinguish state tort law, one must nevertheless engage in implied preemption analysis. It does not address whether one must engage in implied preemption analysis where there is a savings clause that expressly addresses the issue. The Court also did not have to reach the argument that the term "standard" in 15 U.S.C. § 1392(d) preempts only state statutes and not the common law. Id.
I would now reach these issues. I conclude, as we did in our original opinion, that standards mean standards and not the common law. I also conclude that the savings clause was calculated to prevent any argument to the contrary. I apply Myrick as follows. If you comply with federal safety standards, you may sell your cars in America. That is a necessary condition for the sale of cars in America. No state can interfere with that. But satisfaction of federal standards to sell cars in America is just that. It does not immunize one from state tort liability. Congress could not have chosen words more calculated to express its intent that compliance with standards does not preempt state tort liability than the words it chose in § 1397(k). ("Compliance with any Federal motor vehicle standard...does not exempt any person from any liability under common law.").
If we only had the express preemption clause, § 1392(d), I would agree with the majority that Myrick would require an implied preemption analysis. But here we have more. We have a savings clause which obviates the need for any narrow implied preemption analysis. "The text's the thing." Bank One Chicago v. Midwest Bank & Tr. Co., 133 L. Ed. 2d 635, U.S. , , 116 S. Ct. 637, 646 (1996) (Scalia, J., Concurring).
Frederick J. Martone, Justice
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