2019 Ohio 5084
Ohio Ct. App.2019Background
- Ohio AG sued Volkswagen under the Ohio Air Pollution Control Act alleging Volkswagen installed software "defeat devices" in 2009–2016 diesel models and tampered with emission controls both pre-sale (manufacturing) and post-sale (recalls/software updates and in-use operation); ~14,000 affected vehicles in Ohio.
- Complaint pleaded Count I (pre-sale installation of defeat devices), Count II (post-sale recall/update tampering), Count III (tampering while vehicles were in use), and Count IV (civil conspiracy).
- Volkswagen removed to federal court, the case joined MDL proceedings in N.D. Cal., and was remanded to Ohio state court; Volkswagen moved to dismiss asserting CAA preemption and lack of personal jurisdiction over certain foreign defendants.
- Trial court dismissed the complaint: it held Count I was expressly preempted and concluded Counts II and III were impliedly (conflict) preempted as matters for federal regulation; it declined to address personal-jurisdiction motions.
- Ohio appealed; the Tenth District reversed and remanded, holding the Clean Air Act did not clearly and manifestly preempt Ohio’s post-sale (in‑use) tampering claims and thus Counts II–III (and the related conspiracy claim) may proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CAA conflict‑preempts Ohio post‑sale (in‑use) tampering claims (Counts II & III) | Ohio: CAA saves state authority to regulate/penalize use, operation, movement of registered/licensed vehicles; states retain police power to protect air quality — no clear, manifest preemption | Volkswagen: Congress intended exclusive federal regulation of model‑wide manufacturer tampering; state enforcement would create a burdensome, duplicative patchwork and disrupt federal penalty scheme | Court: Reversed dismissal; CAA does not show clear and manifest intent to preempt state post‑sale tampering claims; Counts II & III survive dismissal and case remanded |
| Whether post‑sale claims are expressly preempted as standards relating to new vehicles (i.e., claims "relate back" to vehicle design) | Ohio: Post‑sale regulation targets in‑use tampering, not an attempt to regulate design/standards for new vehicles | Volkswagen: Post‑sale tampering effectively relates to original design and thus is barred by CAA express preemption of new‑vehicle standards | Court: Agreed with Ohio; post‑sale tampering claims do not attempt to impose standards on new vehicle design and are not expressly preempted |
| Viability of civil‑conspiracy claim (Count IV) dependent on underlying claims | Ohio: Conspiracy claim stands if underlying tampering claims survive | Volkswagen: Conspiracy fails if underlying claims are preempted | Court: Because Counts II & III are not preempted, the conspiracy claim is not necessarily barred; remand for further proceedings |
Key Cases Cited
- English v. Gen. Elec. Co., 496 U.S. 72 (1990) (framework for express and implied preemption analysis)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (Congressional intent is the touchstone; presumption against preemption of state police powers)
- Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) (express preemption definitions can imply Congress did not intend broader preemption)
- Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) (field preemption inference from pervasive federal scheme)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (federal government’s authority over greenhouse‑gas regulation and motor‑vehicle emissions)
- Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) (high threshold required to find federal preemption of state police‑power regulations)
- In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prod. Liab. Litig., 310 F. Supp. 3d 1030 (N.D. Cal. 2018) (MDL court concluded federal exclusivity over manufacturer post‑sale model‑wide tampering; court cited but declined to follow that reasoning)