UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GEIER, ALEXIS

v.

AMER HONDA MTR CO


98-7006a

D.C. Cir. 1999


*	*	*


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 




__________

n 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


[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 




__________

n 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


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 




__________

n 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 




__________

n 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, 


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


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 




__________

n 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


On its face, moreover, the term "standard" in s 1392(d)  could apply to
the requirements imposed by common law tort 




__________

n 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 


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


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 




__________

n 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




__________

n 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 




__________

n 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


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


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


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 


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


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 


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


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.




__________

n 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)