Products Liability Law Daily Application of LIA preemption to urban transit operations challenged in take-home asbestos exposure claims
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Monday, June 27, 2016

Application of LIA preemption to urban transit operations challenged in take-home asbestos exposure claims

By Pamela C. Maloney, J.D.

A worker employed by the New Jersey Port Authority Transit Corporation (PATCO) has asked the U.S. Supreme Court to review a decision by the New Jersey Appellate Division that product liability design defect and failure-to-warn claims brought against the transit system to recover for his daughter’s take-home asbestos exposure injuries were preempted by the Locomotive Inspection Act (LIA) under the doctrine of field preemption (Brust v. Delaware River Port Authority, Docket No. 15-1529, cert. filed June 20, 2016).

The worker, whose job duties at the transit company included the repair and maintenance of asbestos-contaminated air brake systems on PATCO’s multiple unit locomotives, filed product liability design defect and failure-to-warn claims against PATCO and various manufacturers of locomotives and locomotive brake shoes, alleging that his daughter’s mesothelioma was a result of secondary exposure to friable asbestos fibers through direct contact with him and while laundering his asbestos-laden work clothing. The worker also sued various manufacturers and sellers of automobile brakes, claiming that his daughter’s injuries could have been caused by her exposure to asbestos dust created when he replaced the brakes on cars he worked on after hours. PATCO’s motion for summary judgment, which was based on the argument that federal legislation and court precedent preempted state tort claims related to locomotives, was granted sub nom. Brust v. ACF Industries, LLC [see Products Liability Law Daily’s November 20, 2015 analysis].

Underlying preemption decision. In addressing the issue of whether the LIA preempts state law claims arising from locomotive equipment even if the entity operating the equipment was not subject to federal regulations, the New Jersey court cited a number of decisions that had considered the scope of the LIA’s preemptive effect. Based on this precedent, the court concluded that because the design defect and failure-to-warn claims were directed at the subject of locomotive equipment and would affect the design, construction and the material of locomotives, they were preempted under the broad scope of preemption outlined in those decisions. The court explained that focusing on the equipment, regardless of where or by which entity it was used, ensured that all equipment meets federal safety standards while creating an exception based on the classification of the operation at the time of the injury would conflict with the goal of uniformity.

Reasons to grant petition. The petitioner’s primary argument in support of granting the petition was that the Appellate Division’s interpretation of the U.S. Supreme Court’s holding in Kurns v. Railroad Friction Products, Inc., ___ U.S. ___, 132 S. Ct. 1261 (2012), presented a federal question of public importance that required High Court review. After outlining the scope of federal regulation of railroads and the exclusion of rapid transit systems and the equipment used in those systems from the scope of the federal regulatory scheme, the petitioner argued that Kurns did not involve the issue presented in the underlying case, i.e., whether a state tort claim based on the alleged dangerousness of equipment used in an urban transit system was preempted by federal law even though the system itself was not subject to federal regulation. Although both cases involved state tort claims against manufacturers of railroad equipment and component parts that contained asbestos, the locomotives in Kurns were sold to a railroad, whereas the defective products in this case were sold to an urban transit system not subject to federal regulation. Therefore, the petitioner contended, the underlying claims were not directed at the equipment of locomotives regulated under the LIA, but rather at equipment that was only subject to state regulation.

The petitioner also challenged the Appellate Division’s conclusion that its decision served the federal policy of "uniformity of railroad equipment ... regardless of where or by which entity it is used... ." According to the petitioner, this view reflected a serious misconception of the federal policy which explicitly excludes urban rapid transit systems from the regulatory scheme of nationwide uniformity of railroad equipment. In addition, Congress’s decision to exclude urban rapid transit systems from the definition of railroads demonstrated its intent not to displace state regulation of those systems.

Based on these arguments, the petitioner posited that the Appellate Division’s conclusion that Congress had preempted state tort claims based on the alleged dangerousness of a rapid transit system’s railroad equipment even though that equipment was not subject to federal safety standards created an anomaly in the Supremacy Clause jurisprudence—federal preemption without federal regulation—and represented an "unprecedented and unjustifiable" extension of federal preemption law that had broad ramifications.

Questions presented. The petitioner asked the Supreme Court to address the following questions:

  1. Is a state tort claim based on the alleged dangerousness of equipment used in the operation of an urban rapid transportation system preempted by the Federal Locomotive Inspection Act, even though these systems and the equipment used in their operations are expressly excluded from federal regulation?; and
  2. Did the New Jersey courts correctly interpret the Supreme Court’s decision in Kurns?

The case is Docket No. 15-1529.

Attorneys: Arnold C. Lakind (Szaferman, Lakind, Blumstein & Blader, P.C.) for Sandra Brust.

Companies: Delaware River Port Authority; Port Authority Transit Corporation (PATCO)

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