The confusing state of the U.S. Supreme Court’s preemption jurisprudence got trickier late last month with a ruling throwing out a state-based failure-to-warn claim on the grounds that federal law occupied the field of locomotive safety.
The ruling in Kurns v. Railroad Friction Products, coupled with the mixed bag of preemption jurisprudence from the Court over the past few years, has left attorneys on both sides of product liability matters wondering what is ahead.
“It’s safe to say that the sum total of the current Court’s contribution to the preemption debate is less than zero. That’s because it’s been all over the place,” said Robert Peck, president of the Center for Constitutional Litigation, a group that filed an amicus brief in the case on behalf of the American Association for Justice.
Lawyers also expressed some uncertainty about the potential impact of the case, including the question of whether it will lead to failure-to-warn claims being tossed out in areas that don’t involve railroad safety.
“I don’t have an answer yet,” said David Oliver, a partner in the Houston office of Vorys, Sater, Seymour and Pease and editor of the Mass Torts: State of the Art blog. “It’s going to take months or years for this thing to shake out.”
The case was brought by the widow of a man who died of mesothelioma after retiring from his job as a machinist and welder for a railroad carrier. His widow filed state law claims for defective design and failure to warn against distributors of the locomotives and locomotive parts her husband came in contact with. She alleged that her husband contracted mesothelioma as a result of exposure to asbestos in the defendants’ products and that the products did not carry warnings about the dangers of asbestos.
The defendants 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 pursuant to the Court’s 1926 decision in Napier v. Atlantic Coast Line R.R. Co. (272 U.S. 605).
In that decision, that Court held that preemption “extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.”
The district court agreed and granted summary judgment. The 3rd Circuit affirmed.
Big, open field
In an opinion authored by Justice Clarence Thomas, the U.S. Supreme Court also affirmed. The justices rejected the widow’s claims that the scope of preemption established by Napier was narrowed by the Federal Railroad Safety Act of 1970 and that Napier did not apply to claims arising out of the repair and maintenance of locomotives as opposed to the use of locomotives on a railroad line.
Thomas made it clear that failure-to-warn claims fell fully within the field of claims governed solely by federal regulation, not state-based tort law.
“A failure-to-warn claim alleges that the product itself is unlawfully dangerous unless accompanied by sufficient warnings or instructions,” Thomas wrote. “Because petitioners’ failure-to-warn claims are therefore directed at the equipment of locomotives, they fall within the preempted field defined by Napier.”
The strict adherence to the doctrine of stare decisis in the case was disappointing, if not surprising, to those hoping that the Court would keep failure-to-warn claims outside of federal law’s preemptive reach.
“What Thomas has tried to do is adopt very simple-to-understand rules,” Peck said. “He is taking the approach Napier took, and that gives him a simple rule to apply.”
Peck said he was disappointed that the Court didn’t spend much time on what he thought was a strong argument: that the Federal Railroad Safety Act changed the rules of the game in 1970, and that these warning claims were no longer strictly within the exclusive purview of federal law.
Peck said the focus on stare decisis caused the Court to miss a chance to revisit an area of law that he believes has become outdated.
He noted that in both the concurrence by Justice Elena Kagan and the partial concurrence and dissent by Justice Sonia Sotomayor, the justices hinted that if Napier were decided today, it would come out differently.
“The analysis under the doctrine of preemption has changed” in the decades since Napier, Peck said. “[Now] you can preempt the field without preempting everything under the sun. It’s more tactical than it was when Napier was decided.”
Oliver, who represents defendants, said one part of the ruling is a game changer.
“It seems the rule is that a [product’s] warning is sort of [a part] of the product itself,” Oliver said. “It’s almost like an intangible component. It gives context as to the use of the product [and] how it was designed. They are all in one.”
That makes such claims much harder to bring, he said.
“If I’m a plaintiffs’ lawyer and I look at this, not that I don’t already have plenty of reasons to worry about preemption, but this is a pretty big one,” Oliver said. “Failure to warn is the essence of the vast majority of cases [I defend]. And ultimately that is where the money is.”
But there are still plenty of unanswered questions after the ruling – including which fields have such broad preemptive protections and which don’t – so plaintiffs’ attorneys as well as defense counsel are still in uncertain territory.
“The question is going to be whether there is preemption,” Oliver said. “If there is no preemption, then it’s not going to make any difference.”
The inconsistency in the Court’s preemption decisions in the last few years show how important it is for lawmakers to make it absolutely clear when they intend to bar state claims and when they don’t.
“The American Bar Association called [for] Congress to be more explicit in its statutes” in terms of preemptive effect, Peck said. “That is difficult for a legislative body. The courts have basically been left to figure it out.”