The plaintiff was partially ejected from the passenger side window of a Tahoe during a low-speed quarter-rollover accident, and sued GM in Texas state court alleging that GM’s use of tempered glass in the side windows was unreasonably dangerous and that the use of advanced glazing would have decreased the likelihood of passenger ejection. The U.S. Fifth Circuit found that FMVSS 205 is, on its face, a “materials standard that sets a safety ‘floor’ to ensure that the glazing materials used by manufacturers meet certain basic requirements.” As to the frustration of some Federal policy, the Court found that the NHTSA Final Rule Commentary on FMVSS 205 is very different from the commentary on FMVSS 208 analyzed in Geier. “There is no language in the Glazing Materials Final Rule commentary 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.” Hence, the plaintiffs’ common law claims were not preempted. See O’Hara v. General Motors, No.06-10498, 2007 WL 4105758 (5th Cir. Nov. 20, 2007).
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