Feds side with plaintiffs attorneys in preemption dispute

John O'Brien Oct. 12, 2011, 7:00pm

Chief Justice John Roberts

WASHINGTON (Legal Newsline) - A case before the U.S. Supreme Court that is drawing attention from several groups will determine if plaintiffs attorneys have a new industry to attack in asbestos lawsuits.

The issue involves the federal Locomotive Inspection Act, which preempts state law claims against companies involved with the design and manufacture of locomotives and their parts. Attorneys for Gloria Gail Kurns say it should not, and that the U.S. Supreme Court should permit a lawsuit against Railroad Friction Products Corp. and Viad Corp.

Among the groups lobbying for the plaintiffs are the U.S. government and the American Association for Justice, which is a national plaintiffs attorneys group.

"The intent of Congress is the touchstone of preemption, and there is strong presumption against preemption in the absence of clear indicia of that intent," says the AAJ's amicus brief, filed Aug. 19.

"Because the right to a legal remedy for wrongful injury is a fundamental right under the Constitution, courts may not preempt such a cause of action and leave injured persons without remedy unless Congress specifically intended that result. The mere silence of Congress in a statute not directed at railroads rather than manufacturers falls for short."

Other groups that filed briefs in support of Kurns, who is the executrix of the estate of George Corson, include the Academy of Rail Labor Attorneys, the National Association of Retired and Veteran Railway Employees, Public Law Scholars and Public Justice.

A former president of Public Justice is Susan Saladoff, the medical malpractice attorney who directed the movie "Hot Coffee." The movie attacked certain parts of the civil justice system that Saladoff felt were unfair.

The plaintiffs are making design defect and failure to warn claims against the two companies. Complaints against 50 other companies were dismissed.

"Although the LIA thus displaces any state-law standard of care governing the fitness for use of locomotives, tenders and their parts and appurtenances, it does not displace any state-law cause of action for a party injured by a violation of the LIA," the brief filed by the U.S. government says.

Rather, an injured party may bring a state common-law tort action (to the extent such action is not precluded by some other federal law, such as FELA with respect to suits by railroad employees) and the substantive standard applied in such case is the safety standard the LIA prescribes."

The U.S. Court of Appeals for the Third Circuit ruled the opposite in Sept. 2010, upholding a district court's opinion.

"The LIA was originally passed in 1911, and was amended in 1915 and 1924. In pertinent part, it provides that '(a) railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances -- (1) are in proper condition and safe to operate without unnecessary danger of personal injury," the Third Circuit's decision says.

"While the statute itself is silent as to any preemptive effect, one can easily understand how a state law or action which regulates whether a locomotive or any of its parts and appurtenances 'are in proper condition and safe to operate' could conflict with federal safety regulations."

Backing that decision are business groups like the National Association of Manufacturers and the U.S. Chamber of Commerce. They say the plaintiffs seek to overturn 85 years of settled law to carve out an exception for tort lawsuits.

Legal Newsline is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber.

"Petitioners seek a change in the law that would allow them to pursue asbestos personal injury claims against locomotive equipment manufacturers and distributors not previously amenable to suit, further widening the net of asbestos litigation that has burdened the nation's courts, ensnarled more than 10,000 companies and forced almost 100 employers into bankruptcy," says NAM's brief, filed last week.

"Petitioners ask the court to draw a distinction between preemption of state statutes and regulations and state common law claims that is inconsistent with precedent, artificial, litigation-generating, and could potentially expand liability in other contexts."

Oral arguments are scheduled for Nov. 9. The case was filed in a Pennsylvania court before being removed to federal court.

The Supreme Court is also dealing with the identical question posed in a different lawsuit involving John Crane, Inc. It was a decision from a Pennsylvania court that ruled for the plaintiff.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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Organizations in this Story

National Association of Manufacturers
733 10th St NW
Washington, DC 20001

American Association for Justice
777 6th Street Northwest
Washington, DC 20001

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