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Railroad preemption case lands at US Supreme Court

By: DOLAN MEDIA NEWSWIRES//November 10, 2011//

Railroad preemption case lands at US Supreme Court

By: DOLAN MEDIA NEWSWIRES//November 10, 2011//

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The justices of the U.S. Supreme Court are set to decide whether a state law tort suit involving a railroad worker who died from on-the-job asbestos exposure is preempted by a federal railroad inspection law.

In the case Kurns v. Railroad Friction Products Corp., the widow of a railroad worker brought a state tort suit on her husband’s behalf after he died from mesothelioma, which she claims was caused by exposure to asbestos during his years of employment as a welder, machinist and supervisor for a company that manufactured and repaired locomotives.

The plaintiff claimed that the products her husband used were defective and did not carry warnings about the dangers of asbestos.

The company moved for summary judgment arguing that the claims were preempted by the Locomotive Inspection Act which, it argued, occupied the entire field of such claims.

The district court agreed and granted summary judgment and the 3rd Circuit affirmed, holding that “Congress intended to preempt all state laws, regulations, and causes of action which involve ‘the design, the construction, and the material of every part of the locomotive and tender of all appurtenances.’”

The U.S. Supreme Court granted certiorari.

50 different requirements?

David Frederick, a partner in the Washington office of Kellogg, Huber, Hansen, Todd, Evans & Figel, argued that federal law was meant to cover the operation of trains, not their assembly or repair.

“The Locomotive Inspection Act was designed to address a very specific problem, which was boilers exploding on the line when the train was in operation,” Frederick said.

Chief Justice John Roberts noted that the federal law “doesn’t say [it applies only to] something that’s going to cause harm while it’s actually being used.”

“The principle here is to ensure that the locomotives, when they are outside the repair yard and are on the railroad line, are safe to operate,” Frederick said.

Sarah E. Harrington, assistant to the U.S. solicitor general, arguing as amicus curiae in support of the widow, contended that the reach of the statute does not extend as far as the railroad company claims.

“Respondent would have the Court expand the field that’s preempted by the LIA to include any claim that has anything to do with locomotive equipment,” Harrington said.

“Don’t you think that one of the purposes of the legislation [was] to enable engine manufacturers to be able to construct their engines without having to worry about a variety of different state requirements?” asked Justice Antonin Scalia. “Fifty states can have different requirements with respect to what the design has to be in order to make the engine safe.”

“Requirements that go to the design, construction or materials on a locomotive that will be used, if those requirements are directed at the repair shop, then they would be conflict preempted,” Harrington said. “But they wouldn’t fall within the field that’s governed by LIA because the LIA’s substantive standard of care only applies to locomotives that are in use.”

‘Safe work environment’?

Jonathan Hacker, a partner in the Washington office of O’Melveny & Myers, argued on the railroad company’s behalf that the preemptive effect of the statute goes beyond the actual operation of railroads.

“Regulatory power is broader than purpose,” Hacker said. “Under the LIA, preemption is about the locomotive equipment itself.

“Why would their law be preempted [since] the railroad knows that asbestos is dangerous when revealed, and since it would be revealed in a repair shop?” asked Justice Stephen Breyer.

“States have authority to require workplace conditions and to require employers to protect employees working,” Hacker said. “But what they can’t do is tell manufacturers: ‘Here [are] the conditions under which you can use this design, sell this design, distribute the design and these materials lawfully within the state.’”

“Suppose the allegation is it’s the failure to warn workers to use a special kind of mask that’s very important if you’re working near asbestos,” asked Justice Anthony Kennedy. “Are you saying that the manufacturer cannot be required to give that warning?”

“That’s correct,” Hacker said, noting that federal rules already exist in that area under the Occupational Safety and Health Act.

“How is the railroad going to know whether there is asbestos in there unless the manufacturer at least tells the railroad, even it doesn’t have to tell the worker?” Scalia asked.

“Railroads have a duty under [the Federal Employers Liability Act] to ensure a safe workplace environment,” Hacker said. “That’s clear. And so they have adequate incentives to ensure that their employees have a safe work environment.”

A ruling is expected later this term.


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