                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


LORRAINE MOSER, Administratrix of        
the Estate of Jennifer L. Moser,
deceased,
                  Plaintiff-Appellant,
                  v.
FORD MOTOR COMPANY,                                No. 01-1303
             Defendant-Appellee,
                 and
ERICA KATHERYN GATES,
                            Defendant.
                                         
            Appeal from the United States District Court
     for the Northern District of West Virginia, at Clarksburg.
              Irene M. Keeley, Chief District Judge.
                          (CA-97-194-1)

                       Argued: September 27, 2001

                       Decided: November 8, 2001

       Before WILKINSON, Chief Judge, and LUTTIG and
                  MICHAEL, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Charles Marion Love, IV, MASTERS & TAYLOR, L.C.,
Charleston, West Virginia, for Appellant. Michael Bonasso,
2                  MOSER v. FORD MOTOR COMPANY
FLAHERTY, SENSABAUGH & BONASSO, P.L.L.C., Charleston,
West Virginia, for Appellee. ON BRIEF: Marvin W. Masters, MAS-
TERS & TAYLOR, L.C., Charleston, West Virginia, for Appellant.
William J. Hanna, Robert P. Lorea, FLAHERTY, SENSABAUGH &
BONASSO, P.L.L.C., Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Lorraine Moser (Moser), as administratrix of the estate of her
deceased daughter, Jennifer L. Moser, brought this action against
Ford Motor Company. Jennifer Moser was killed when the 1990 Ford
Escort in which she was a passenger ran off the road and rolled over.
Moser alleged that the Escort’s restraint system was defective and that
the warnings regarding the use of that restraint system were inade-
quate. The district court granted summary judgment to Ford, stating
that in light of Geier v. American Honda Motor Co., 529 U.S. 861
(2000), Moser’s defective restraint system and inadequate warning
claims are both preempted by Federal Motor Vehicle Safety Standard
(FMVSS) 208. Moser appeals, arguing that these claims are not pre-
empted. In addition, she argues that even if they are preempted, she
has an alternative, non-preempted theory of recovery. For the follow-
ing reasons, we affirm.

                                  I.

   On October 1, 1995, Jennifer Moser was riding in the passenger
seat of Erica Gates’s 1990 Ford Escort, which was traveling north on
I-79 in West Virginia. At about 2:35 a.m., near the Lost Creek exit,
the Escort ran off the road and rolled over. The Escort’s automatic
two-point shoulder harness was engaged, but Jennifer Moser was not
wearing the manual lap belt. Tragically, she sustained fatal head inju-
                   MOSER v. FORD MOTOR COMPANY                        3
ries in the crash and died at the scene. Gates, who was wearing both
her lap belt and the automatic shoulder harness, survived the accident.

   The Escort was manufactured by Ford in August of 1989 and con-
tained a two-point passive restraint system with a knee bolster and
modified seat design. The Escort also had a manual lap belt. At that
time, under FMVSS 208 automakers were required to outfit vehicles
with restraint systems falling under one of several restraint system
options. See 49 C.F.R. § 571.208 (1989). Under Option One, S4.1.2.1,
the vehicle had to meet federal crash protection requirements with a
completely passive restraint system that required no action by the
vehicle occupants. The FMVSS did not dictate the specific passive
system that should be used, but sought to encourage technological
innovation by permitting automakers to develop any type of passive
system, so long as that system would comply with the crash require-
ments of FMVSS 208. While automakers were permitted to develop
any new systems, the Department of Transportation listed and dis-
cussed the fully passive systems that appeared to have promise at the
time of the rulemaking. These options consisted of a two-point system
with knee bolster, a three-point system, an airbag system, and a pas-
sive interior system. See 49 Fed. Reg. 28965 (1984).

   Manufacturers could also certify vehicles under Option Two,
S4.1.2.2, or Option Three, S4.1.2.3. Under Option Two the vehicle
had to meet crash requirements with a restraint system that was partly
automatic and partly manual. Option Three consisted of manual lap
and shoulder belts with a seat belt warning system. Ford certified the
Escort’s restraint system under Option One, without the manual lap
belt. Accordingly, the manual lap belt in the Escort was an additional
safety feature permitted, but not required, by the Option One certifica-
tion.

   Moser sued in West Virginia state court, and Ford removed the
case to federal court. As her primary theory of recovery, Moser
argued that the Escort’s two-point passive system was inherently
faulty because such a system was inadequate to protect an occupant
in the event of a rollover crash. Moser claimed that the Escort’s two-
point restraint system could be rendered safe and non-defective only
with the use of a manual lap belt or a three-point passive system.
Moser seeks to characterize her argument as one that this Escort’s
4                  MOSER v. FORD MOTOR COMPANY
particular two-point passive system was defective, not that all two-
point passive systems are defective. However, the defects she identi-
fies in this particular two-point passive system, with the exceptions
noted below and discussed in part IV infra, are universal to all two-
point passive systems. Thus, despite Moser’s attempt to characterize
her primary claim as specific to this particular two-point system, this
claim is in effect an attack on two-point passive systems generally. As
an alternative theory, Moser also pointed out several defects unique
to this particular two-point passive system; she argued that the shoul-
der anchors were improperly placed and that the seat design and knee
bolster were defectively designed. Additionally, Moser argued that
Ford’s warning to occupants to use the lap belt was inadequate.

   During the pretrial phase of the proceedings, Moser notified the
district court that the Supreme Court had granted certiorari in Geier
v. American Honda Motor Co., cert. granted, 527 U.S. 1063 (1999),
and indicated to the court that Geier "will no doubt . . . decide[ ]" the
issues presented "in this matter." Accordingly, the district court
delayed its ruling on Ford’s motion to dismiss pending the resolution
of Geier. After the Supreme Court ruled in Geier, Ford filed a
renewed motion to dismiss. The district court considered the motion
in light of the significant discovery that had already occurred and
treated the motion as one for summary judgment. The court granted
Ford’s motion, ruling that in light of Geier Moser’s primary claims
were preempted by the FMVSS. The district court also dismissed
Moser’s alternative defect theories, reasoning that Moser’s own
expert had ruled them out. Moser appeals.

                                   II.

   We first address Moser’s primary claim, which is essentially that
two-point passive restraint systems are inherently defective unless a
manual lap belt is used. Because Geier did not involve this precise
issue, we examine Geier to determine whether its preemption holding
is applicable in this case.

   In Geier the plaintiff, Alexis Geier, sued Honda under District of
Columbia tort law. Geier was injured when her 1987 Honda Accord
crashed, even though she was wearing the manual lap and shoulder
belts provided in the vehicle. Geier claimed that her vehicle was
                   MOSER v. FORD MOTOR COMPANY                         5
defectively designed because it lacked a driver’s side airbag. The
Supreme Court held that this claim was impliedly preempted because
it "actually conflict[ed] with FMVSS 208." Geier v. American Honda
Motor Co., 529 U.S. 861, 874 (2000). The Court explained that
FMVSS 208 "deliberately provided the manufacturer with a range of
choices among different passive restraint devices." Id. at 875. Accord-
ing to the Court, the manufacturer’s ability to choose among different
passive restraint devices promoted FMVSS 208’s safety objectives:
allowing a range of choices would encourage technological develop-
ment, lower costs, facilitate widespread consumer acceptance, and
permit the development of data on the relative efficacy of various pas-
sive systems. Id. at 875, 878-79. Thus, the Court explained that the
FMVSS sought not only variety as between, say, Option One (fully
passive) and Option Two (part passive, part active) systems, but also
sought "a mix of several different passive restraint [Option One] sys-
tems." Id. at 878. FMVSS 208 "embodies the . . . policy judgment that
safety would best be promoted if manufacturers installed alternative
protection systems in their fleets rather than one particular system in
every car." Id. at 881 (quoting Brief for United States as Amicus
Curiae 25). The Supreme Court characterized Geier’s tort suit as an
attempt to impose a duty on manufacturers to install an airbag, rather
than other passive restraint systems, in every vehicle. Id. at 881. This,
the Court held, "would have presented an obstacle to the variety and
mix of devices that the federal regulation sought." Id.

   Moser argues that her claim is that this Escort’s particular two-
point passive system is defective, not that all two-point passive sys-
tems are defective. But regardless of whether Moser claims to be criti-
cizing this particular two-point passive system rather than two-point
passive systems generally, if the defects she identifies in this particu-
lar system are universal to all two-point passive systems, then her
claim amounts to an attack on two-point passive systems generally.
In fact, with the exceptions discussed in part IV infra, Moser’s criti-
cisms of this system are equally applicable to all two-point passive
systems. Therefore, Moser’s argument that this two-point system is
unsafe without the use of an automatic or manual lap belt amounts to
an argument that Ford should have chosen another system, specifi-
cally, a three-point passive system or an Option Two part-passive,
part-active system.
6                  MOSER v. FORD MOTOR COMPANY
   Insofar as Moser claims that any two-point passive restraint system
is inherently unsafe and defective, her claim, if successful, would
exclude that type of system from the range of available passive sys-
tems. Both Geier’s and Moser’s claims would frustrate the Depart-
ment of Transportation’s goal of promoting a variety and mix of
passive devices. As the Supreme Court explained, Geier’s claim
would totally frustrate that goal by imposing a uniform airbag require-
ment on all vehicles. In contrast, Moser’s claim would only partially
frustrate the goal. It eliminates one of the possible types of passive
restraint systems, thus reducing the available variety by one, but still
permits any other passive system options.

   We are therefore presented with the question of whether this more
limited interference with the objectives of FMVSS 208 causes
FMVSS 208 to preempt Moser’s claim. We need not decide whether
allowing a single state tort lawsuit to exclude one type of passive sys-
tem so frustrates the goals of FMVSS 208 as to require preemption,
because the potential cumulative effect of such suits could completely
frustrate the goals of FMVSS. While Moser’s suit seeks only to
exclude one type of passive restraint system, the two-point passive
system, similar state tort actions could likewise seek to exclude
another specific type of passive system, then another, then another.
While no one claim would result in a complete frustration of the goal
of permitting a mix of passive systems, the net effect of state tort law
could be to exclude most or all of the passive systems that were avail-
able to manufacturers in 1989. This would frustrate the goals of
FMVSS 208 just as completely as Geier’s suit to impose a uniform
airbag requirement frustrated those goals. Accordingly, we hold that
FMVSS 208 preempts Moser’s claim that a two-point passive
restraint system is inherently defective.

                                  III.

  Moser also appeals the district court’s dismissal of her inadequate
warning claim. Moser argued in the district court that the sign on the
Escort’s visor warning the passenger to buckle the manual lap belt
was inadequate. The district court held that this claim was preempted
under Geier, just as the underlying choice of restraint systems claim
was preempted. We affirm, albeit on slightly different reasoning.
                   MOSER v. FORD MOTOR COMPANY                        7
   As part of this claim, Moser alleges that Ford had a duty to warn
occupants of the Escort that the car was not safe unless the occupant
fastened the manual lap belt. If Ford had no such duty, the claim fails.
Needless to say, Ford could only have such a duty if it were true that
the car was unsafe unless the lap belt was used. Moser’s inadequate
warning theory is, at bottom, based on a claim that the Escort’s two-
point passive system was unsafe without the use of the lap belt. As
we have explained above, that claim is preempted by the FMVSS
under Geier. Because we are precluded in this case from finding any
duty on Ford’s part to provide the manual lap belt, Ford can have no
corresponding duty to warn occupants to use the lap belt. Accord-
ingly, Moser’s inadequate warning claim fails as a matter of law.

                                  IV.

   Finally, Moser argues that she should be permitted to pursue an
alternative, non-preempted theory of liability. She argues that apart
from the inherent defectiveness of any two-point passive system, this
particular two-point passive system was faulty in design. For exam-
ple, in her brief Moser argues that the location of the anchor points
and the design of the seat and the knee bolster were all defective. We
agree that according to Geier claims based on such alternative theo-
ries of defective design, as opposed to defective choice of restraint
system, are not preempted by FMVSS 208. While such claims are not
preempted, the question remains whether the district court erred in
granting summary judgment in this case.

   To survive summary judgment, Moser must present evidence to
create a "genuine issue as to material fact" as to whether any of these
alleged defects were present and caused or contributed to Jennifer
Moser’s death. Fed. R. Civ. P. 56(c). While the party seeking sum-
mary judgment bears the initial burden of showing the absence of a
genuine issue of material fact, Rule 56(c) "mandates the entry of sum-
mary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).

  Moser repeatedly mentions alleged defects in the placement of the
shoulder belt and the design of the seat and knee bolster in her briefs,
8                  MOSER v. FORD MOTOR COMPANY
but she cites only one place in the record containing evidence in sup-
port of these claims. William Muzzy III, one of Moser’s expert wit-
nesses, testified in a deposition that "if the shoulder belt had been
back, or if it had been designed to be, say, on the seat, then it would
have certainly contributed to holding her upper body in place." After
combing the record ourselves, we have found only one other state-
ment by Muzzy (or anyone else) that could support a design defect
theory: earlier in the same deposition, Muzzy stated, "[t]he shoulder
belt portion of it, by its very nature, is forward of the shoulder and
does not capture the shoulder in quite a few of the accident
sequences."

   Both prior to and following these two statements, Muzzy repeat-
edly and explicitly testified that, in this accident, any such defects —
the placement of the shoulder harness, the design of the seat or the
knee bolster — did not cause or contribute to Jennifer Moser’s inju-
ries or death. When Ford’s counsel asked Muzzy whether "the defi-
ciency which you contend is in the shoulder belt, is really irrelevant
to your opinions as to the cause of her injuries and death in this case,"
Muzzy responded "Yes." At another point, Muzzy clarified that "the
seatback in this case did not fail." Muzzy also testified that he had not
investigated the seat bottom, so he could offer no opinion regarding
that part of the vehicle. Later, Ford’s counsel repeated that "the only
defect with regard to the system which you believe caused or contrib-
uted to her death in this case was the lack of a lap restraint in this
accident for Jennifer Moser," and Muzzy said, "That’s right." Muzzy
gave similar statements at numerous other points in his deposition,
and Moser’s counsel did not ask Muzzy follow-up questions to chal-
lenge or question his clear testimony that none of these defects caused
or contributed to Jennifer Moser’s injuries or death in this accident.

   Moser simply failed to present evidence sufficient to create a genu-
ine issue of material fact as to whether any such design defects, if
present in this car, caused or contributed to Jennifer Moser’s injuries
or death. In fact, Moser’s own expert affirmatively confirmed that
these defects did not cause or contribute to Jennifer Moser’s injuries
or death. Accordingly, we affirm the district court’s dismissal of
Moser’s alternative design defect claim.
                   MOSER v. FORD MOTOR COMPANY                        9
                                  V.

   In light of Geier, Moser’s choice of restraint systems theory is pre-
empted by the FMVSS. Similarly, Moser’s inadequate warning claim
fails as a matter of law because it necessarily depends on the exis-
tence of a legal duty that we are precluded from imposing. Finally,
Moser failed to present sufficient evidence to raise a genuine issue of
material fact on her alternative design defect theories. Accordingly,
the judgment of the district court is

                                                          AFFIRMED.
