July 24, 2014

U.S. Supreme Court to Consider Federal Preemption in Asbestos Suit

On June 6, the U.S. Supreme Court granted certiorari in Kurns et al. v. Railroad Friction Products Corp., et al., No. 10-879, to consider whether the Locomotive Inspection Act (LIA) (formerly the Boiler Inspection Act) preempts state-law claims arising from workplace exposure to asbestos while working on railroad parts.

The case was brought by the widow and executor of the estate of a railway worker against Viad Corp. and Railroad Friction Products Corp. (RFPC) alleging that the decedent's work for various railroad employers installing brakes and valves on locomotives exposed him to asbestos, causing his mesothelioma.

The U.S. District Court for the Eastern District of Pennsylvania granted the defendants' motion for summary judgment. Relying on the U.S. Supreme Court's decision in Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605 (1926), the district court held that the LIA regulates locomotives and locomotive parts used in interstate commerce-and, as a result, preempts the plaintiff's state-law claims.

On appeal, the Third Circuit affirmed. The court expressly disagreed with the Pennsylvania Supreme Court's decision in Norfolk & Western Railway Co. v. Pennsylvania Utility Commission, 413 A.2d 1037 (Pa. 1980), that the 1970 Federal Railroad Safety Act (FRSA) narrowed the scope of LIA preemption. The Pennsylvania Supreme Court's decision, the Third Circuit noted, is an outlier in comparison with the decisions of the highest courts of a number of states holding that the FRSA did not disturb the existing preemption framework established by the LIA.

In its holding, the Third Circuit further recognized that a plaintiff could still bring claims for asbestos injury arising out of an employer's negligence under the Federal Employers Liability Act (FELA). The FELA provides a federal cause of action for any railroad employee injured on the job due to employer negligence.

A decision is expected by June 2012.

Copyright © 2014 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

About the Author


Allyson N. Ho is a partner in Morgan Lewis's Litigation Practice and co-chair of the firm's U.S. Supreme Court and Appellate Litigation Practice. Named in the National Law Journal's 2010 Appellate Hot List and listed in Chambers USA: America's Leading Lawyers for Business, Ms. Ho is an accomplished appellate and constitutional lawyer with a distinguished record of government service. She has successfully argued cases in trial and appellate courts across the country and has successfully litigated in both federal and state courts,...


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