In Fabian v. Fulmer Helmets, Inc. (6th Cir. 10-5009, Dec. 23, 2010) (PDF), the Sixth Circuit reversed dismissal by the trial court of a pre-certification, class-action lawsuit predicated on a motorcycle helmet manufacturer’s alleged misrepresentation of safety standards.
In Fabian, the helmet model in question – AF-50 – had been tested by National Highway Traffic Safety Administration (NHTSA) in 2000 and 2002; in 2000, the model in large size was tested and found to be in compliance with NHTSA standards, but in 2002, NHTSA tested the AF-50 in small size and found it to be out of compliance. Because the helmets purchased by the plaintiff had been large size – which had passed the NHTSA test – the district court reasoned that dismissal under Rule 12(b)(6) was warranted.
Writing for a unanimous panel that included Judge Moore and Senior Circuit Judge Friedman of the U.S. Court of Appeals for the Federal Circuit sitting by designation, Judge Sutton found dismissal inappropriate. The panel found that the divergent NHTSA tests supported two reasonable inferences, one of which aligned with the district court’s ruling: namely, that the divergence between the tests rested on differences in the size of the helmet at issue. But the panel also found that another reasonable inference existed: that the alleged misrepresentation was specific to the helmet model – the AF-50 generally – not to the size of the helmet. Employing the standards for dismissal under Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937 (2009), the panel found that “a mass-manufactured consumer product, whether it is shoes, pants or helmets, may utilize the same design (and carry the same flaw) regardless of its size.” For that reason, the panel found dismissal inappropriate and permitted discovery to go forward.
The panel also rejected the defendant’s argument that dismissal should be affirmed on the alternative ground that the plaintiff’s causes of action, brought under Tennessee common law, were preempted by the National Traffic and Motor Vehicle Safety Act of 1966 (49 U.S.C. § 30101 et seq.). The panel found that “[t]he premise of Fabian’s common law claims is not the creation of a new standard, whether one below, at or above [NHTSA] Standard 218 [governing helmet performance standards]. It is that Fulmer misrepresented its helmets as ‘DOT approved’ through its marketing materials, website and catalogues, as well as by the placement of the ‘DOT’ symbol on the helmets, even after knowing that it failed the 2002 safety test. Liability, if it exists at all, would turn on what Fulmer Helmets said about its products, not on whether its products meet a standard that conflicts with Standard 218.” Thus, the panel determined that plaintiff’s claims “do not ‘actually conflict’ with the requirements of, or the purposes of, the Safety Act or Standard 218. They do not change Standard 218’s technical requirements. They do not disturb Standard 218’s labeling requirements. And they do not add a new requirement that interferes with what Standard 218 already requires. All that the claims do is potentially impose liability based on representations about whether the Department of Transportation has approved the helmets, even after a failed government-sponsored test” (internal citation omitted). On this basis, the Court ruled that federal preemption had not occurred.
