By Robert B. Barnett Jr., J.D.
Neither the Locomotive Inspection Act nor the Safety Appliance Act preempted the daughter’s state law wrongful death claims.
In a wrongful death suit by the daughter of a man who died of asbestos exposure from his work on railroad passenger cars, the U.S. Court of Appeals for the Tenth Circuit affirmed a jury verdict in favor of the daughter and rejected the railcar maker’s argument that the daughter’s state law claims were preempted by either the Locomotive Inspection Act (LIA) or the Safety Appliance Act (SAA). The LIA preemption argument was rejected as waived because the manufacturer, The Budd Company, argued for the first time on appeal that the passenger railcars were locomotive appurtenances, rather than as previously that the asbestos-wrapped pipes were the locomotive appurtenances. The SAA preemption argument was rejected because the U.S. Supreme Court has ruled that the SAA does not preempt state law suits involving railcar safety as long as the suit does not relate to one of the specifically listed devices in the statute, a list that does not include asbestos-wrapped pipes (Little v. The Budd Co., Inc., April 3, 2020, Murphy, M.).
Background.A repair shop pipefitter’s job was to replace pipe insulation on passenger railroad cars manufactured by The Budd Company. After he died of malignant mesothelioma, his daughter brought a wrongful death suit in Kansas federal court asserting various state law tort claims against The Budd Company. A jury awarded her damages of $139,500 and found The Budd Company 93 percent responsible [see Products Liability Law Daily’s March 21, 2019 analysis]. The Budd Company appealed the decision to the Tenth Circuit on two theories: (1) the LIA, which applies to locomotives and their appurtenances, preempted the claims because all passenger railcars are "appurtenances" to a complete locomotive; and (2) the SAA preempted the claims because the SAA has exclusive jurisdiction over all railcar safety features.
LIA. Throughout the lawsuit, The Budd Company has asserted federal preemption of the daughter’s state law claims. To succeed under an LIA preemption theory, The Budd Company would need to show that the deceased’s work was on a locomotive or on an appurtenance to a locomotive. Because the evidence clearly established that he never worked on a locomotive, the manufacturer’s only chance was to argue "an appurtenance to a locomotive." In all of its previous efforts to obtain a dismissal, however, The Budd Company had argued preemption under the LIA on the theory that the asbestos-wrapped pipes that delivered steam from the locomotive to the railcar heating systems, on which the deceased had worked, were a "locomotive appurtenance." Throughout the case, including in pre-trial motions, trial motions, and post-trial motions, The Budd Company had failed to convince the court that the pipes were a locomotive appurtenance. On appeal, therefore, The Budd Company switched tactics and argued that the entire passenger railcar, which contained the asbestos-wrapped pipes, was the "locomotive appurtenance." The Tenth Circuit, however, would have none of it, noting that The Budd Company’s failure to raise that specific issue prior to the appeal waived the argument on appeal.
SAA.The SAA requires that railroad carriers equip railcars with listed safety features (49 U.S.C. §20302(a)). The statute then lists the required features. Nowhere in the statute is insulation of any kind listed. The Budd Company argued on appeal that the SAA preempts state regulation of any railcar safety device regardless of whether the device is listed in the SAA. That argument, however, according to the Tenth Circuit, was foreclosed by the U.S. Supreme Court decision in Atlantic Coast Line Railroad Co. v. Georgia, 234 U.S. 280 (1914), which held that the SAA did not occupy the entire field of railcar safety and that the law applied only to the safety devices specifically listed in the SAA. The Tenth Circuit went on to reject The Budd Company’s argument that the scope of Atlantic Coast had been broadened in the intervening years.Atlantic Coast, the appellate panel said, was "directly on point," and it specifically rejected The Budd Company’s argument.
The Tenth Circuit, therefore, affirmed the lower court judgment in favor of the daughter.
The case is No. 19-3014.
Attorneys: John Roven (Roven-Kaplan, LLP) for Nancy Little. Toby Crouse (Crouse LLC) for The Budd Co., Inc.
Companies: The Budd Co., Inc.
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