2.      “The Supremacy Clause of the United States Constitution, Article VI, Clause 2, invalidates state laws that interfere with or are contrary to federal law.” Syllabus Point 1, Cutright v. Metropolitan Life Ins. Co., 201 W.Va. 50, 491 S.E.2d 308 (1997).

            3.      Our law has a general bias against preemption. Preemption of topics traditionally regulated by states - like health and safety - is greatly disfavored in the absence of convincing evidence that Congress intended for a federal law to displace a state law.

            4.      When it is argued that a state law is preempted by a federal law, the focus of analysis is upon congressional intent. Preemption is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.

            5.      Although there can be no crystal-clear, distinctly-marked formula for determining whether a state statute is preempted, there are two ways in which preemption may be accomplished: expressly or impliedly.

            6.      To establish a case of express preemption requires proof that Congress, through specific and plain language, acted within constitutional limits and explicitly intended to preempt the specific field covered by state law.

            7.      There are two recognized types of implied preemption: field preemption and conflict preemption. Implied field preemption occurs where the scheme of federal regulation is so pervasive that it is reasonable to infer that Congress left no room for the
states to supplement it. Implied conflict preemption occurs where compliance with both federal and state regulations is physically impossible, or where the state regulation is an obstacle to the accomplishment or execution of congressional objectives.

            8.      A federal agency regulation with the force of law can explicitly or implicitly preempt conflicting state regulations. In such cases, a court must not rely on mere agency proclamations that the federal regulation preempts state law, but must perform its own conflict determination, relying on the substance of state and federal law.

            
Ketchum, Justice:

            In this appeal from the Circuit Court of Kanawha County, we are asked to consider whether a plaintiff's state cause of action against a motor vehicle manufacturer is preempted by federal law. The plaintiff was injured in a motor vehicle roll-over accident, in part, because the side-window glass shattered and allowed the plaintiff's arm to exit the vehicle and be pinned between the vehicle and the pavement. The plaintiff contends that his vehicle was defective because the manufacturer used tempered glass in the side-door windows instead of stronger laminated glass.

            Upon a motion from the defendant manufacturer, the circuit court granted summary judgment and dismissed the plaintiff's glass defect claims. The circuit court concluded that the plaintiff's glass defect claims were preempted by Federal Motor Vehicle Safety Standard 205, a regulation that permits motor vehicle manufacturers options in choosing side-window materials.

            After carefully reviewing the record, the briefs and arguments of the parties, and the federal legal authorities on this question, we feel compelled to find that the circuit court's decision was correct. As set forth below, we hold that the plaintiff's side-window glass defect claims are preempted by federal law, and affirm the circuit court's summary judgment order entered in favor of the vehicle manufacturer.

            Mr. Morgan's wife, Josephine Morgan, was sitting in the second row of the vehicle and was injured in the rollover. Mrs. Morgan filed the underlying action in this case on January 27, 2003, naming her husband and appellee Ford Motor Company (“Ford”) as party defendants. Mr. Morgan answered the complaint on January 31, 2003, and asserted cross claims against Ford that included, inter alia, causes of action for strict liability, negligence, breach of warranty, fraudulent omission, and intentional infliction of emotional distress. (See footnote 1)

            Mr. Morgan's causes of action against Ford relate to the crashworthiness of the 1999 Ford Expedition vehicle, and are predicated on Ford's installation of tempered glass in the side windows of the vehicle. Mr. Morgan's expert, Thomas J. Feaheny, issued a report indicating that the 1999 Ford Expedition was defective and unreasonably dangerous in its design because of the tempered glass. It was Mr. Feaheny's opinion that laminated glass, or some other ejection-resistant side-window glass or glazing _ which was technologically and economically feasible _ should have been used, and would have prevented the ejection of Mr. Morgan's arm through the driver's side window. (See footnote 2)

            Another expert retained by Mr. Morgan, Paul Lewis, Jr., was a biomechanics specialist. Like Mr. Feaheny, Mr. Lewis was of the opinion that Mr. Morgan would not have suffered the degloving injury had the glass in the vehicle's window prevented his arm from exiting the confines of the vehicle during the rollover. 

           On June 26, 2007, Ford filed a motion for summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure asserting, among other things, that Mr. Morgan's glass-defect claims were preempted by federal law. Ford contended that Mr. Morgan's state law side-window-glass defect claims were impliedly preempted by the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. § 30101, et seq. (“the Safety Act”), and its implementing regulation pertaining to glass/glazing, Federal Motor Vehicle Safety Standard 205 (“FMVSS 205”).

            In an order filed September 17, 2007, the circuit court granted Ford's motion for summary judgment. The circuit court found that the appellant's “claim of a glass/glazing defect in the subject vehicle relates solely to the choice of tempered glass over other permitted options, and not to any application or specific design or manufacturing defect in the glass/glazing present in the subject vehicle.” The circuit court further found that FMVSS 205 “permits a motor vehicle manufacturer to use one of several options for the materials in side and rear windows, including glass-plastic, laminates, and tempered glass” and found that Ford had used one those optional glazing materials, tempered glass, in the side windows of the subject 1999 Ford Explorer.

            In its order, the circuit court looked to the United States Supreme Court's interpretation of the Safety Act in Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000). In Geier the plaintiff asserted that her vehicle was defective because the vehicle's manufacturer failed to equip it with airbags. The manufacturer _ relying upon a list of safety options in the then-effective variant of FMVSS 208 _ chose to equip the vehicle with only seatbelts. The U.S. Supreme Court ruled that because FMVSS 208 deliberately provided manufacturers with a range of choices among different passive restraint devices (including seatbelts and airbags), the plaintiff's defect suit was pre-empted. The circuit court interpreted the Geier decision to mean that because FMVSS 208 was deliberately designed to provide manufacturers with safety options, a state court defect action that might compel a manufacturer to choose one of those safety options over the others available under the regulation frustrated the federal scheme and was, therefore, impliedly preempted by the federal regulation.

            Applying this interpretation of FMVSS 208 in Geier to FMVSS 205 in the case below, the circuit court below determined that:

                [B]ecause tempered glass is a permitted option for manufacturers to use in vehicle side windows under FMVSS 205, the imposition of state tort liability based on the exercise of such option would frustrate the full purposes and objectives of Congress.

The circuit court therefore concluded that the appellant's glass/glazing defect claim was preempted by federal law, and entered judgment for appellee Ford.

            The appellant, Mr. Morgan, now appeals the circuit court's September 17, 2007 summary judgment order.

U.S. Const., Art. VI, cl. 2. As interpreted by Chief Justice John Marshall, the expounder of the Constitution, (See footnote 3) state laws are invalid and preempted under the Supremacy Clause if they “interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution[.]” Gibbons v. Ogden, 9 Wheat. 1, 211 (1824).

            This Court has therefore interpreted the preemption doctrine to mean that “[t]he Supremacy Clause of the United States Constitution, Article VI, Clause 2, invalidates state laws that interfere with or are contrary to federal law.” Syllabus Point 1, Cutright v. Metropolitan Life Ins. Co., 201 W.Va. 50, 491 S.E.2d 308 (1997).

            Nevertheless, our law has a bias against preemption. Preemption of topics traditionally regulated by states _ like health and safety _ is greatly disfavored in the absence of convincing evidence that Congress intended for a federal law to displace a state law. (See footnote 4) Put succinctly, preemption is disfavored in the absence of exceptionally persuasive reasons warranting its application:

                As we have frequently indicated, “[p]re-emption of state law by federal statute or regulation is not favored 'in the absence of persuasive reasons _ either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.'”

Commonwealth Edison Co. v. Montana, 453 U.S. 609, 634 (1981) (quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981), quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)).    

        When it is argued that a state law is preempted by a federal law, the focus of analysis is upon congressional intent. (See footnote 5) Preemption “is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). The task presented for a court when a federal preemption defense is raised “is to determine whether state regulation is consistent with the structure and purpose of the statute [or federal regulation] as a whole.” Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98 (1992); accord Hines v. Davidowitz, 312 U.S. 52, 67 (1941). “To discern Congress' intent we examine the explicit statutory language and the structure and purpose of the statute.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990); see also FMC Corp. v. Holliday, 498 U.S. 52, 56-57 (1990).

            Although “there can be no one crystal clear distinctly marked formula” for determining whether a state statute is preempted (See footnote 6) the United States Supreme Court has identified two ways in which preemption may be accomplished: expressly or impliedly. (See footnote 7)          

   To establish a case of express preemption requires proof that Congress, through specific and plain language, acted within constitutional limits and explicitly intended to preempt the specific field covered by state law. See Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. 707, 715-16 (1985) (noting that the presumption against preemption governs unless preemption “'was the clear and manifest purpose of Congress'”) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

            There are two recognized types of implied preemption: field preemption and conflict preemption. Implied field preemption occurs where the scheme of federal regulation is so pervasive that it is reasonable to infer that Congress left no room for the states to supplement it. Implied conflict preemption occurs where compliance with both federal and state regulations is physically impossible, or where the state regulation is an obstacle to the accomplishment or execution of congressional objectives. (See footnote 8) To prevail on a claim of implied preemption, “evidence of a congressional intent to pre-empt the specific field covered by state law” must be pinpointed. See Wardair Canada, Inc. v. Florida Dep't of Revenue, 477 U.S. 1, 6 (1986).

            One final point: the U.S. Supreme Court has recognized that an agency regulation with the force of law can explicitly or implicitly preempt conflicting state regulations. See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000);

Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. at 713. In such cases, a court must not rely on mere agency proclamations that the federal regulation preempts state law, but must perform its own conflict determination, relying on the substance of state and federal law. Wyeth v. Levine, 555 U.S. ___, ___ (Slip. Op. at 19) (No. 06-1249, March 4, 2009).

            The Safety Act requires the National Highway Traffic Safety Administration (“NHTSA”) to “prescribe motor vehicle safety standards” that are “practicable, meet the need for motor vehicle safety, . . . [and are] stated in objective terms.” 49 U.S.C. § 30111(a). The Safety Act defines a “motor vehicle safety standard” as the “minimum standard for motor vehicle or motor vehicle equipment performance.” 49 U.S.C. § 30102(a)(9).

            The Safety Act contains an express preemption provision, which states:

                      When 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.

49 U.S.C.A. § 30103(b)(1). Preemption under this provision is not, however, complete. Another portion of the Safety Act _ often referred to as the “savings clause” _ states:

                      Compliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.

49 U.S.C. § 30103(e). Read together, these two statutes indicate a congressional intent to expressly preempt state-enacted regulations, but to not preempt common law suits that arise even though a manufacturer has complied with a federal regulation establishing a “minimum standard for motor vehicle or motor vehicle equipment performance.” 49 U.S.C. § 30102(a)(9). See Geier v. American Honda Motor Co., Inc., 529 U.S. at 867-68. The savings clause “removes tort actions from the scope of the express pre-emption clause,” 529 U.S. at 869, and “preserves those actions that seek to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor.” Id., 529 U.S. at 870.   

         The Safety Act therefore does not expressly preempt the appellant's common- law cause of action.

            We also find no language in FMVSS 205 that would indicate a clear expression of congressional intent to preempt common law suits regarding glazing in motor vehicles. Instead, we find agency language suggesting that FMVSS 205 would “not have any substantial direct effects on the States” including “preempt[ing] State law[.]” The final 2003 version of FMVSS 205, as published in the Federal Register, was accompanied by the following agency statement:

                      Executive Order 13132 requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” . . . We also may not issue a regulation with Federalism implications and that preempts State law unless we consult with State and local officials early in the process of developing the proposed regulation.

                      This final rule will not have any substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

68 F.R. 43964, 43971 (July 25, 2003). Accordingly, it appears that when FMVSS 205 was most recently revised, the NHTSA did not intend to expressly preempt actions arising under state law.

            Accordingly, we need consider only whether the appellant's common law action is invalidated under a theory of implied preemption.

            Understanding the parties' arguments on implied conflict preemption requires a brief examination of the federal safety regulation at issue. FMVSS 205 _ which may be found at 49 C.F.R. § 571.205 _ sets forth various requirements for glazing materials that may be used in motor vehicles. The NHTSA stated three purposes for the regulation, as follows:

                      The purpose of this standard is to reduce injuries resulting from impact to glazing surfaces, to ensure a necessary degree of transparency in motor vehicle windows for driver visibility, and to minimize the possibility of occupants being thrown through the vehicle windows in collisions.

49 C.F.R. § 571.205 at S2. The regulation does not, however, directly identify the glazing materials approved for use in motor vehicles, but rather incorporates by reference a standard designed by the American National Standards Institute (“ANSI”). The current standard _ “American National Standard for Safety Glazing Materials,” ANSI/SAE Z26.1-1996 (See footnote 10) _ provides as follows:

                      Except for special requirements for specified locations, safety glazing materials of seven general types can meet some or all requirements detailed in this standard. All seven types are commercially feasible today. Each of them possesses its own distinctive safety characteristics. The seven types are listed below and are described in Section I.
                        (1)        Laminated Glass 
                        (2)        Glass-Plastic Glazing Material
                        (3)        Tempered Glass
                        (4)        Plastic
                        (5)        Multiple Glazed Unit (Class 1 and Class 2)
                        (6)        Bullet-Resistant Glazing
                        (7)        Bullet-Resistant Shield

The standard permits laminated glass to be used throughout a vehicle, while tempered glass can be used anywhere other than in the windshield. See, ANSI/SAE Z26.1-1996, T. 1 (Items 1 & 2). The ANSI standards also state that:

                One safety glazing material may be superior for protection against one type of hazard, whereas another may be superior against another type . . . [N]o one type of safety glazing material can be shown to possess the maximum degree of safety under all conditions.

Id. at § 2.2.

            Appellee Ford argues that our interpretation of the preemptive effect of FMVSS 205 is controlled by the U.S. Supreme Court's decision in Geier v. American Honda Motor Co., supra. Ford asserts that the Geier decision stands for the proposition that state common-law suits are preempted whenever they would foreclose one of several equipment options authorized by a federal motor vehicle safety standard. Because FMVSS 205 offers manufacturers several options for materials to choose among when installing side windows in vehicles, Ford asserts that a state common-law suit precluding one of those options is implicitly preempted.

            The appellant, Mr. Morgan, argues that Geier is being given an overbroad interpretation. Geier, the appellant argues, was not based on the mere existence of regulatory options. Instead, the Geier decision was founded upon extrinsic evidence that demonstrated a federal agency had a detailed plan that would be obstructed by state law. The appellant contends that the evidence in Geier showed that the federal agency had adopted an authoritative policy behind the regulations at issue, a policy designed to encourage manufacturers to gradually phase in a mix of optional safety equipment. The availability of options was essential to the success of the federal agency objectives.

            Mr. Morgan asserts that under Geier, if a federal agency does not consider the availability of a particular option to be essential to its objectives, then a common-law theory foreclosing that option does not stand as an obstacle to the agency's objectives and is not preempted. Mr. Morgan further asserts that there is no evidence of an agency plan, policy, or objective behind FMVSS 205 that would be thwarted by a state cause of action. When the circuit court construed Geier to mean that options always preempt a state cause of action to declare one of those options as unsafe, the appellant argues that the congressional intent behind the Safety Act (which permits common law actions and which states that safety standards are, by definition, only a “minimum standard,” 49 U.S.C. § 30102(a)(9)) was thwarted.

            Overshadowing the parties' arguments are two federal cases issued after the circuit court entered its summary judgment order in the instant case. In the first case, O'Hara v. General Motors Corp., 508 F.3d 753 (5^th Cir. 2007), a federal appeals court concluded that Geier does not apply to an interpretation of FMVSS 205, and, accordingly, that a state common-law suit alleging that the tempered glass in a vehicle was defective was not preempted by federal law. In the second case, Wyeth v. Levine, 555 U.S. ___ (No. 06-1249, March 4, 2009), the U.S. Supreme Court held that explicit regulatory pronouncements by a federal agency that state common-law suits “frustrate the agency's implementation of its statutory mandate” are insufficient to preempt a state common-law suit. In so holding, the Court appears to have expounded upon its decision in Geier.

            To better understand the parties' positions on implied preemption, we must explore the courts' decisions in Geier, O'Hara, and Wyeth.

          The United States Supreme Court, by a 5-4 majority, concluded that the plaintiff's tort law suit was preempted by FMVSS 208.

            First, to determine the objectives of FMVSS 208, the Court examined the statements by the federal agency when FMVSS 208 was being promulgated, and examined the history (starting in 1967) behind the adoption and revision of regulations for passive restraints. 529 U.S. at 875-878. The “relevant history and background are complex and extensive.” 529 U.S. at 883. The Court noted that NHTSA “had rejected a proposed FMVSS 208 'all airbag' standard because of safety concerns (perceived or real) associated with airbags.” 529 U.S. at 879. The agency history showed that NHTSA had sought to encourage manufacturers to adopt a mix of devices to “help develop data on comparative effectiveness” of passive restraint systems, to build public confidence, (See footnote 11) and to allow the industry time to overcome the safety problems and high production costs associated with airbags. Id. Considering this extensive history and record of agency deliberations, the Court found that FMVSS 208                . . . deliberately provided the manufacturer with a range of choices among different passive restraint devices. Those choices would bring about a mix of different devices introduced gradually over time; and FMVSS 208 would thereby lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance _ all of which would promote FMVSS 208's safety objectives.

529 U.S. at 875.

            Because FMVSS 208 sought to engender “a gradually developing mix of alternative passive restraint devices,” the Court concluded that the tort suit filed by the plaintiff “would stand as an 'obstacle' to the accomplishment of that objective.” 529 U.S. at 886. The Court therefore found that the plaintiff's suit was preempted.

           Only one appellate court in the nation _ the United States Court of Appeals for the Fifth Circuit _ has directly addressed the preemptive effect of FMVSS 205. And the Fifth Circuit has concluded that FMVSS 205 does not preempt state tort claims. (See footnote 13)

            The facts in O'Hara v. General Motors Corp., 508 F.3d 753 (5^th Cir. 2007) are similar to those in the instant case. As the O'Haras' 2004 Chevrolet Tahoe rolled over in an accident, the plaintiffs' daughter's arm was seriously injured when she was partially ejected through a passenger side window. The plaintiffs claimed that GM's use of tempered glass in the side windows was unreasonably dangerous so as to render the vehicle defective under state tort law, and the plaintiffs argued that “advanced glazing would have decreased the likelihood of passenger ejection.” 508 F.3d at 755. The federal district court granted summary judgment to GM, finding that FMVSS 205 preempted the plaintiffs' state law suit.

            On appeal, the Court of Appeals reversed the district court's ruling and found the plaintiffs could proceed with their suit. The Court examined Geier, and interpreted Geier to mean:  

             When a federal safety standard deliberately leaves manufacturers with a choice among designated design options in order to further a federal policy, a common law rule which would force manufacturers to adopt a particular design option is preempted.

O'Hara, 508 F.3d at 759 (emphasis added).

            Turning to the record, the O'Hara Court examined the text of the regulation and the ANSI standards for glazing materials, and found that FMVSS 205 is “a materials standard that sets a safety 'floor' to ensure that the glazing materials used by manufacturers meets certain basic requirements.” 508 F.3d at 760.

            The Court also found that FMVSS 205 differs significantly from FMVSS 208 (the regulation considered in Geier) because FMVSS 208 “includes detailed implementation timelines which required manufacturers to introduce airbag technology gradually prior to 1997. . . . All of these factors _ detailed implementation timelines, full vehicle testing procedures and 'options' language _ are conspicuously absent from FMVSS 205.” 508 F.3d at 760.

            The Court further found that FMVSS 205 does not articulate a glazing materials public policy like that relied upon by the U.S. Supreme Court in interpreting FMVSS 208. In Geier, the Court “had the benefit of extensive pre-litigation agency statements interpreting FMVSS 208 and making NHTSA's occupant crash protection policy clear,” 508 F.3d at 760, and the final rule commentary on the version of FMVSS 208 at issue in Geier was 47 pages long and laid “out the agency's concerns regarding public acceptance
of airbag technology.” 508 F.3d at 761. The O'Hara Court noted that the final rule commentary on FMVSS 205 is short _ only eight pages _ and identifies the public goal behind the update as “increasing the clarity and usability of the standard.” 508 F.3d at 761. The Court could find no language “indicating that NHTSA intended to 'preserve the option' of using tempered glass in side windows, or that preserving this option would serve the safety goals of FMVSS 205.” Id.

            The O'Hara Court also examined a NHTSA proposal during the 1990s to amend FMVSS 205 to require advanced glazing to prevent occupant ejection during rollover accidents. See NHTSA, Rollover Prevention, Advance Notice of Proposed Rulemaking, 57 Fed.Reg. 242 (Jan. 3, 1992). In 2002, NHTSA withdrew its proposal, stating that it declined to require advanced glazing based on “safety and cost concerns.” Notice of Withdrawal, 67 Fed.Reg. 41,365, 41,367 (June 18, 2002). Those safety concerns included the agency's desire to investigate and develop standards for new technologies like side airbags, and that advanced glazing carried “drawbacks, including a slightly increased risk of minor neck injuries.” O'Hara, 508 F.3d at 757. NHTSA stated that it was “more appropriate to devote its research and rulemaking efforts with respect to ejection mitigation to projects other than advanced glazing.” 67 Fed.Reg. at 41,367.

            The Court in O'Hara carefully examined NHTSA's 2002 Notice of Withdrawal, and found no articulable “federal policy regarding advanced glazing in side windows which would be frustrated by the O'Hara's suit.” O'Hara, 508 F.3d at 761-62.

“Overall, the Notice of Withdrawal emphasizes the existence of other promising rollover protection technologies and NHTSA's need to devote resources to developing procedures to test them. . . . It did not reject advanced glazing as unsafe[.]” 508 F.3d at 762.

            The Court then examined a post-Geier case on preemption from the U.S. Supreme Court, Spreitsma v. Mercury Marine, 537 U.S. 51 (2002). In Spreitsma, the plaintiff's decedent was killed after falling from a boat and being struck by unguarded propeller blades. The plaintiff brought suit under state law against the engine manufacturer, alleging that the engine was defective and should have had a propeller guard.

            The manufacturer in Spreitsma argued that the state law action was preempted under Geier by federal laws because the U.S. Coast Guard had specifically studied, but decided to “take no regulatory action,” with regard to propeller guards. 537 U.S. at 66. In other words, because the federal agency had refused to require propeller guards, the manufacturer argued that a state law ruling holding that propeller guards were required would interfere with the agency's policy. Spreitsma, 537 U.S. at 64-66. The U.S. Supreme Court disagreed and concluded that the plaintiff's state law action was not preempted, 537 U.S. at 70, holding that the Coast Guard's “decision not to regulate a particular aspect of boat safety is fully consistent with an intent to preserve state regulatory authority pending the adoption of specific federal standards.” 537 U.S. at 65. The Court ruled that an agency's decision not to regulate and require a particular form of safety equipment _ like propeller guards _ did not “convey an authoritative message of a federal policy” against that form of safety equipment. 537 U.S. at 67.

            Taken together, the Court in O'Hara found that FMVSS 205 was best understood as a minimum safety standard, and applying Geier and Spreitsma concluded that the plaintiffs' common law claims were not preempted. 508 F.3d at 763.

            In Wyeth v. Levine, 555 U.S. ___ (No. 06-1249, March 4, 2009), the Court examined whether a state law failure-to-warn defect suit was preempted by drug regulations adopted under federal law. The drug Phenergan is corrosive and causes irreversible gangrene if it enters a patient's artery. The plaintiff received the drug Phenergan via the IV-push method into her arm, and the drug somehow entered an artery. As a result, the plaintiff's forearm had to be amputated. The plaintiff brought suit against the manufacturer, alleging that the labeling was defective because it failed to instruct clinicians not to use the high-risk IV-push method. A jury found the Phenergan labels to be insufficient and awarded damages.    

        One of the manufacturer's arguments offered in support of preemption was that the FDA had declared, in its preamble to a 2006 regulation governing the content and format of prescription drug labels, that federal law establishes “both a 'floor' and a 'ceiling,'” so that “FDA approval of labeling . . . preempts conflicting or contrary State law.” 555 U.S. at ___ (Slip Op. at 19). The regulation also declared that certain state-law actions, such as those involving failure-to-warn claims, “threaten FDA's statutorily prescribed role as the expert Federal agency responsible for evaluating and regulating drugs.” Id. The manufacturer argued that because the FDA is statutorily charged with determining whether drug labels are safe, then state-law judgments on the safety of those labels would subvert the FDA's determinations.

            The Supreme Court rejected the manufacturer's preemption argument and concluded that:

                      In prior cases, we have given “some weight” to an agency's views about the impact of tort law on federal objectives “when the subject matter is technica[l] and the relevant history and background are complex and extensive.” Geier, 529 U.S. at 883. Even in such cases, however, we have not deferred to an agency's conclusion that state law is pre- empted.

555 U.S. at ___ (Slip Op. at 20). The Court went on to conclude that the agency's view that its regulations preempted state law were “inherently suspect” and “at odds with what evidence we have of Congress' purposes[.]” 555 U.S. at ___ (Slip Op. at 21). The Court found that the plaintiff's suit was not preempted by federal law.

            Important to the case at bar, the Court made clear the basis for its decision in Geier. The Court indicated that Geier was founded upon the federal agency's explanation of how state law would interfere with its regulation, and how state law would be an obstacle to the accomplishment of a clear federal objective. The Court stated:

                [In Geier], we held that state tort claims premised on Honda's failure to install airbags conflicted with a federal regulation that did not require airbags for all cars. The Department of Transportation (DOT) had promulgated a rule that provided car manufacturers with a range of choices among passive restraint devices. Rejecting an “'all airbag'” standard, the agency had called for a gradual phase-in of a mix of passive restraints in order to spur technological development and win consumer acceptance. Because the plaintiff's claim was that car manufacturers had a duty to install airbags, it presented an obstacle to achieving “the variety and mix of devices that the federal regulation sought.”

                . . . In Geier, the DOT conducted a formal rulemaking and then adopted a plan to phase in a mix of passive restraint devices. Examining the rule itself and the DOT's contemporaneous record, which revealed the factors the agency had weighed and the balance it had struck, we determined that state tort suits presented an obstacle to the federal scheme. After conducting our own pre-emption analysis, we considered the agency's explanation of how state law interfered with its regulation, regarding it as further support for our independent conclusion that the plaintiff's tort claim obstructed the federal regime.

555 U.S. at ___ (Slip Op. at 23-24) (citations omitted).

            Justice Thomas, concurring in the judgment in Wyeth v. Levine but writing separately from the majority, pinpointed a general concern with the Court's “purposes and objectives” implied conflict preemption jurisprudence. More importantly, Justice Thomas
pinpointed a specific concern with the Court's effort in Geier to “comb through agency commentaries” to find a congressional objective that was contrary to the specific language of the Safety Act's savings clause. Justice Thomas says that preemptive effect should only be given to congressional intent that is derived directly from properly enacted laws and regulations, and not intent that is mystically divined from letters, briefs, speeches, “congressional and agency musings” or other extraneous sources. As he stated:

                The Supremacy Clause . . . requires that pre-emptive effect be given only those to federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures. . . .

                My review of this Court's broad implied pre-emption precedents, particularly its “purposes and objectives” pre- emption jurisprudence, has increased my concerns that implied pre-emption doctrines have not always been constitutionally applied. Under the vague and “potentially boundless” doctrine of “purposes and objectives” pre-emption, Geier v. American Honda Motor Co., 529 U.S. 861, 907 (STEVENS, J., dissenting), for example, the Court has pre-empted state law based on its interpretation of broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law. See, e.g., . . . Geier, supra, at 874-883 (relying on regulatory history, agency comments, and the Government's litigating position to determine that federal law pre-empted state law).

                      Congressional and agency musings, however, do not satisfy the Art. I, § 7 requirements for enactment of federal law and, therefore, do not pre-empt state law under the Supremacy Clause. When analyzing the pre-emptive effect of federal statutes or regulations validly promulgated thereunder, “[e]vidence of pre-emptive purpose [must be] sought in the text and structure of the [provision] at issue” to comply with the Constitution.

Wyeth v. Levine, 555 U.S. at ___ (Slip Op. at 5-6) (Thomas, J., concurring) (citations and footnotes omitted).

            Justice Thomas went on to levy specific criticism of Geier, and to suggest that the Court erred in Geier when it strained to divine a congressional or agency intent in favor of preemption that was contrary to the specific “savings clause” language in the Safety Act.

                      The Court's decision in Geier to apply “purposes and objectives” pre-emption based on agency comments, regulatory history, and agency litigating positions was especially flawed, given that it conflicted with the plain statutory text of the saving clause within the Safety Act, which explicitly preserved state common-law actions by providing 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,” 15 U.S.C. § 1397(k) (1988 ed.). In addition, the Court's reliance on its divined purpose of the federal law _ to gradually phase in a mix of passive restraint systems _ in order to invalidate a State's imposition of a greater safety standard was contrary to the more general express statutory goal of the Safety Act “to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents,” 15 U.S.C. § 1381 (1988 ed.). This Court has repeatedly stated that when statutory language is plain, it must be enforced according to its terms. The text in Geier “directly addressed the precise question at issue” before the Court, so that should have been “the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” With text that allowed state actions like the one at issue in Geier, the Court had no authority to comb through agency commentaries to find a basis for an alternative conclusion.

555 U.S. at ___ (Slip Op. at 18-19) (Thomas, J., concurring) (citations omitted).  

          Because the application of the implied pre-emption doctrine often engenders conclusions that “wander far from the statutory text,” Justice Thomas summarized his criticism of the implied conflict preemption doctrine that was the basis for the Court's decision in Geier like this:

                Under this approach, the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not embodied within the text of federal law.

555 U.S. at ___ (Slip Op. at 2) (Thomas, J., concurring).

            Mr. Morgan asserts that his glazing defect suit is not preempted by FMVSS 205. He contends that this Court should follow the decisions in O'Hara v. General Motors Corp., supra, and Spreitsma v. Mercury Marine, supra, and hold that Geier v. American Honda stands for the principle that a common law rule which would force manufacturers to adopt a particular design option is preempted only when a federal safety standard deliberately leaves manufacturers with a choice among designated design options in order to further a clearly defined federal policy. Mr. Morgan asserts that FMVSS 205 does not offer manufacturers choices among different glazing options in order to further a clearly defined federal policy.

            Instead, Mr. Morgan points out that FMVSS 205 sets forth simple, base line testing guidelines for manufacturers to ensure glazing is safe for use in vehicles, and argues that there is little history and background indicating a congressional intent mandating that manufacturers be permitted to choose glazing materials that are, under state law, unreasonably safe for their intended use. The only public policy clearly expressed in the agency's history when adopting FMVSS 205 is “increasing the clarity and usability of the standard.” O'Hara, 508 F.3d at 761. Further, as for the NHTSA's decision to consider requiring advanced glazing materials to prevent passenger ejections and later decision not to adopt any new regulations, the plaintiff argues that under Spreitsma, the decision not to require advanced glazing materials did not “convey an authoritative message of a federal policy” against state common-law actions mandating that form of safety equipment in motor vehicles.

            Ford continues to take the position that the plaintiff's suit is preempted by FMVSS 205. Ford argues that, like the passive restraint options in FMVSS 208 that were considered in Geier v. American Honda, FMVSS 205 gives manufacturers a list of optional glazing materials to choose among. Under FMVSS 208, the NHTSA had “rejected a proposed FMVSS 208 'all airbag' standard because of safety concerns (perceived or real) associated with airbags,” 529 U.S. at 879; under FMVSS 205, the agency had rejected a proposed standard requiring advanced glazing in side and rear windows, in part because of safety concerns arising from a slight increase in neck injuries. Ford therefore asserts that this Court should find that the NHTSA “deliberately provided the manufacturer with a range of choices among different” glazing materials, and that those “choices would bring about a mix of different devices” that should “lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance[.]” Geier, 529 U.S. at 875.

            We discern that we are stuck between a rock and a jurisprudential hard place. On the one hand, the U.S. Supreme Court's recent decision in Wyeth v. Levine suggests that Geier has a limited interpretation _ that conflict preemption may only be inferred when there is an extensive contemporaneous history, and detailed agency explanations, showing a federal scheme that would be obstructed by the plaintiff's tort claim. Ford has presented us with little agency history to support a policy indicating that FMVSS 205 was intended to preempt state common law actions, and we have no agency explanations identifying a clear federal objective that would be corrupted by allowing the plaintiff to proceed. And finally, the only other appellate court to directly consider the question _ the Fifth Circuit in O'Hara _ has conclusively ruled that FMVSS 205 establishes only a “floor” for safe glazing equipment, and does not preempt a state court suit seeking to establish a “ceiling.” (See footnote 14)     

        On the other hand, several state and federal trial courts across the country have ruled that any interpretation of the preemptive effect of FMVSS 205 is controlled by Geier's “purposes and objectives” analysis. In agency pronouncements about altering the objectives of FMVSS 205, NHTSA has indicated that glazing other than tempered glass can increase the risk of neck injuries in accidents. Courts have therefore concluded that a state tort law, which imposes liability based upon a manufacturer's choice to use the tempered glass option allowed by FMVSS 205, is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, and therefore is federally preempted.

            FMVSS 205 permits the manufacturer to make a choice between available safety options for side-window glass; a design defect claim would foreclose choosing one of those options. We understand that the instant case seeks to impose liability for only one
of the options allowed by FMVSS 205. But actions in the courts of each of West Virginia's 55 counties could theoretically, one-by-one, eliminate all of the options offered under FMVSS 205. In the worse case, regulation by juries could, in a piecemeal fashion, eviscerate the unitary federal regulation and leave manufacturers with no options for glazing materials in vehicle side windows.

            We therefore conclude that the circuit court in the instant case did not err in finding that the plaintiff's claim was preempted by FMVSS 205. We believe _ as Justice Thomas noted in Levine _ that Geier is flawed because it requires courts to look beyond the properly-enacted federal statute or law and divine an agency's intent from extraneous materials to determine the preemptive effect of a regulation. Still, we are compelled to find that our decision must be controlled by Geier, because the NHTSA made a public policy decision to not mandate advanced glazing in side windows because of safety concerns that advanced glazing has a slightly increased risk of neck injuries.   Geier is, until altered or explicated by the United States Supreme Court, the guiding law of the land.

            We therefore find that because the NHTSA gave manufacturers the option to choose to install either tempered glass or laminated glass in side windows of vehicles in FMVSS 205, permitting the plaintiff to proceed with a state tort action would foreclose that choice and would interfere with federal policy.