Justinian Lane

Three law professors discuss the new “roof-crush rule” and why it’s a bad idea

First they try to wipe out lawsuits over prescription drugs.  Now they're trying to eliminate roof-crush lawsuits... What's next?  All product liability lawsuits?

The decades-long push to require airbags in automobiles is a case study in how safety improvements can travel a long and winding road through the regulatory process. A new standard for the strength of automobile roofs is now nearing the end of its own seemingly endless trek through the National Highway Traffic Safety Administration (NHTSA). But unlike the airbag rule, which has saved thousands of lives since implementation, NHTSA's "roof-crush" rule will have little impact in the short-term, and could, in the long run, end up slowing down the march toward safer automobiles.

The reason the roof-crush rule could backfire is that the NHTSA plans to use it to undercut one of the most effective mechanisms for encouraging manufacturers to build safer automobiles: lawsuits brought by accident victims alleging faulty design and construction. According to the NHTSA, the new rule will "pre-empt" future lawsuits -- tort actions, as lawyers call them -- about roof strength.

Although the Supreme Court once found that an NHTSA regulation did pre-empt state tort law given the particular circumstances, NHTSA has taken that as an invitation to repeatedly assert that new regulations pre-empt accident victims' right to take manufacturers to court. It is part of a much larger pattern during the Bush administration, a sort of "stealth tort reform," whereby regulatory agencies shield industry from the harms defective products cause.

Source: Beware dangers of roof-crush rule

Justinian Lane: Author Bio | Other Posts
Posted at 11:22 AM, Aug 04, 2008 in Civil Justice
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It's important to keep the two issues - preemption and roof crush - separate in considering them. Re roof crush, it's essential that NHTSA put in place a truly effective roof crush rule, one that has realistic test criteria that realistically duplicate the forces experienced by roofs in rollovers. This means dynamic tests with adequate roof strength minimums. As for preemption, you correctly point out that NHTSA, in lockstep with the Bush/corporate agenda, has published a roof crush rule proposal that is not only ludicrously weak, but includes a preemption clause. So what's needed is legislation to foreclose preemption clauses in federal health and safety rules, thus leaving that issue to Congress and the courts. Incidentally, preemption raised its unseemly head in air bag litigation and prevented worthy lawsuits against manufacturers who could have provided air bags but declined to do so, resulting in needless occupant crash injuries. See Geier v. Honda and its sequelie

Posted by: ben kelley | August 6, 2008 2:45 PM