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U.S. Supreme Court: Locomotive Act Preempts State Law Asbestos Claims

WASHINGTON, D.C. - (Mealey's) The Locomotive Inspection Act (LIA) preempts state law design defect and failure-to-warn claims involving exposure to asbestos during repairs and maintenance, a divided U.S. Supreme Court held Feb. 29 (Gloria Gail Kurns, et al. v. Railroad Friction Products Corp. and Viad Corp., No. 10-879, U.S. Sup.). 

(Opinion. Document #01-120307-016Z.) 


In June 2007, George Corson sued 59 companies in the Philadelphia County, Pa., Court of Common Pleas, alleging that he was exposed to asbestos during a 28-year career as a machinist and welder for a number of railroads.  Corson claimed that the exposure caused him to contract mesothelioma.  After he died, his widow, Freida Jung Corson, and the executrix of his estate, Gloria Gail Kurns, continued the action. 

The two remaining defendants, Railroad Friction Products Corp. (RFPC) and Viad Corp., removed the case to the U.S. District Court for the Eastern District of Pennsylvania and sought summary judgment.  Judge Mitchell S. Goldberg granted the motions.  Locomotive parts are clearly an area Congress intended to preempt under the LIA, 49 U.S. Code Section 20701, Judge Goldberg concluded.  The Third Circuit U.S. Court of Appeals affirmed.  Kurns appealed to the Supreme Court. 

In affirming, the court said Kurns' reliance on the Federal Railroad Safety Act of 1970 (FRSA), 49 U.S. Code Section 20102, et seq., is misplaced.  The FRSA clearly gives the secretary of the U.S. Department of Transportation the power to issue orders and regulations supplementing those already in effect, the court said. 

"By its terms, the FRSA does not alter pre-existing federal statutes on railroad safety," the court said.  "Because the LIA was already in effect when the FRSA was enacted, we conclude that the FRSA left the LIA and its pre-emptive scope as defined by [Napier v. Atl. Coast Line R.R. Co. (272 U.S. 605, 610-11 [1926])], intact," the court said. 

Nor is Kurns' attempt to redefine the preempted field successful, the court said.  While Kurns argues that the LIA does not extend to the repair or maintenance of locomotives, Napier does not distinguish between hazards arising from repair or maintenance and hazards arising while locomotives are "in use," the court said. 

"The pre-empted field as defined by Napier plainly encompasses the claims at issue here.  Petitioners' common-law claims for defective design and failure to warn are aimed at the equipment of locomotives," the court said. 

Kurns' failure-to-warn claim also fails because it essentially alleges that a product is unlawfully dangerous unless accompanied by a warning, the court said.  Thus, the focus of the claim remains the locomotive parts and appurtenances covered by Napier, the majority said. 

Justice Clarence Thomas wrote for the majority and was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Samuel A. Alito Jr. and Elena Kagan. 

In concurrence, Justice Kagan wrote that while stare decisis requires applying Napier, she doubts that the court would decide it the same way today.  More recent cases impose a stricter standard on Congress to prove field preemption than simply granting regulatory authority to a federal agency, Justice Kagan wrote. 

In a partial dissent, Justice Sonia Sotomayor wrote that the LIA should preempt the design defect claim but not Kurns' failure-to-warn claim.  "In my view the latter escape pre-emption because they impose no state-law requirements in the field reserved for federal regulation:  'the equipment of locomotives,'" Justice Sotomayor wrote. 

Justice Sotomayor wrote that in the jurisdictions at issue here, failure to warn is a distinct cause of action under strict liability and that the U.S. Supreme Court itself has explained that such claims are "narrower" than design defect claims.  The majority's treatment of design defect claims and failure-to-warn claims as congruent may generally be true, but the claims address different legal concepts, Justice Sotomayor wrote. 

Excluding Kurns' failure-to-warn claim would comply with both the LIA's regulatory scheme and make sense otherwise as well because not every state law that tangentially affects the railroads would fall within the LIA's preemptive effect, Justice Sotomayor wrote. 

Justice Sotomayor was joined in her dissent by Justices Ruth Bader Ginsburg and Stephen G. Breyer. 

Richard P. Myers, Robert E. Paul, Alan I. Reich and Mary Gilbertson of Paul, Reich & Myers in Philadelphia and Brendan J. Crimmins and Emily T.P. Rosen of Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington represent Kurns.  Walter Dellinger, Anton Metlitsky and Joanna Nairn of O'Melveny & Myers in Washington represent Viad.  James C. Martin, John L. Vitsas, Courtney C.T. Horrigan, David J. Bird and Robert H. Owen of Reed Smith in Pittsburgh represent RFPC. 

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