Supreme Court considers challenge to implied field preemption in railroad case

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November 17, 2011

Supreme Court considers challenge to implied field preemption in railroad case 

The U.S. Supreme Court last week heard oral arguments in a case that tests the boundaries of implied field preemption. No matter how the Court rules, this is likely to be a watershed decision, plaintiffs’ counsel said.

Matthew Malamud

The U.S. Supreme Court last week heard oral arguments in a case that tests the boundaries of implied field preemption—the assertion that the federal government’s regulatory authority in a given area is so complete that it preempts state law even if it doesn’t conflict. (Kurns v. R.R. Friction Prods. Corp., No. 10-879 (U.S. Nov. 9, 2011).)

David Frederick of Washington, D.C., who argued on behalf of the plaintiffs, said regardless of how the Court rules, it will be a watershed decision. “There are very few cases in the world of field preemption that negate state and common law claims,” he said.

The case comes before the Court from the Third Circuit, which in 2010 upheld a lower court’s determination that the Locomotive Inspection Act (LIA) preempts products liability claims against a locomotive parts manufacturer and distributor. That determination was based on the Supreme Court’s 1926 opinion in Napier v. Atlantic Coast Line Railroad Co., in which the Court said the LIA occupies the field of regulating locomotive equipment.

The plaintiffs contend that the lower courts misinterpreted Napier in several ways, including that “Napier involved state legislation, not common-law claims,” their brief said.

In its amicus brief in support of the plaintiffs, AAJ warned the Court about interpreting the Napier decision to preclude lawsuits. “The Napier court did not indicate any congressional intent to include state tort causes of action within the preempted field. In fact, Justice Brandeis, writing for the Court, explicitly held only ‘that state legislation is precluded’ as a result of field preemption.”

Kurns involves a railroad worker’s exposure to asbestos. For most of his life, George Corson maintained locomotives for the Chicago, Milwaukee, St. Paul & Pacific Railroad. The parts Corson worked on contained asbestos and, as a result of repeated exposure, he developed and succumbed to malignant mesothelioma.

Before he died in 2007, Corson and his wife filed a lawsuit in a Pennsylvania court against the railroad and the manufacturers and distributors of the various parts he worked on, including boiler manufacturer Viad Corp. and Railroad Friction Products Corp. (RFPC), a distributor of brake pads.

The state court granted summary judgment in favor of all defendants except RFPC and Viad, concluding that there was insufficient evidence linking most of the products to Corson’s asbestos exposure. The case was then moved to the federal district court.

At last week’s oral arguments, the justices struggled with whether the LIA governs both locomotives in use and those taken out of service for maintenance.

“Looking at Napier, the power that Justice Brandeis said was conferred in that case was to specify the sort of equipment to be used on locomotives, right?” asked Chief Justice John Roberts.

Frederick insisted that Congress’s intent behind the LIA was to “to ensure that [locomotives] work properly on the railroad way, not when they are being taken apart and repaired.”

In their brief, the plaintiffs said that the text and structure of the act “make plain that it applies only to the ‘use’ of a locomotive ‘on a railroad line.’” Furthermore, the LIA contains “no language authorizing (let alone requiring) the Secretary [of Transportation] to regulate hazards posed by the process of repairing and maintaining locomotives.”

Even the government said that its regulatory authority is limited to locomotive equipment in use. Assistant to the U.S. Solicitor General Sarah Harrington, responding to a question from Justice Elena Kagan, said the government had no authority to hypothetically issue a rule under the LIA to ban asbestos-containing brakes out of concern for repair workers. The U.S. Solicitor General filed a brief urging the Court to overturn the Third Circuit’s decision.

The justices also grappled with whether state law failure-to-warn and design defect claims frustrate the intent of the LIA, which is to ensure the uniformity of regulations involving locomotive equipment safety.

“How does the act preempt [failure-to-warn claims]?” Justice Stephen Breyer asked counsel for the defendants. “It doesn’t affect design of the railroad, nor does it affect the use.”

Frederick provided his own response to Breyer’s query by saying, “It doesn’t make sense to inoculate those manufacturers from liability where they have the best information to ensure that repair workers are not going to be exposed to risks.”


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