Opposition Brief — Darby v. A-Best Products Co.

No. 04-574

IN THE

Supreme Court of the United States

FOREST L. DARBY,

Petitioner,

v,

A-BEST PRODUCTS COMPANY, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME Court OF OHIO

BRIEF IN OPPOSITION FOR RESPONDENT

VIAD CORP.

DANIEL MARKEWICH

Counsel of Record

ELLEN G. MARGOLIS

Mounb Cotton WOLLAN

& GREENGRASS

One Battery Park Plaza

New York, NY 10004

(212) 804-4200

Counsel for Respondent

Viad Corp.

191726 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

QUESTION PRESENTED

Are state common-law tort claims against manufacturers

of locomotive equipment preempted by the Boiler Inspection

Act — enacted with congressional intent to occupy the entire

field of locomotive regulation — when such claims relate to

the design, construction, or material of locomotives or their

parts?

li

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Respondent Viad Corp. does not have a parent

corporation, and there is no publicly held company that owns

ten percent or more of its stock.

Jastng bee eam 2B ak tna Bats

ili

TABLE OF CONTENTS

Cusstion Presented 2.0... ccc ccc cc ccccs i

Corporate Disclosure Statement Pursuant To

Supreme Court Rule 29.6 ................... li

oes La eenkaveaeabdeavdds 111

Table Of Cited Authorities .................... Vv

i |

Summary Of Argument ....................... l

Reasons For Denying Tie Petition.............. 4

I. Settled Law Preempts Petitioner’s £ sims .. 4

II. There is No Conflict in the Appellate Courts

Eee nea s ain aGlhs tes sees e hee} 8

III. Common-Law Tort Claims Fall Within the

Field Preempted by the BIA ............. 10

IV. The Statutory Scheme: The BIA Applies to

Railroad Manufacturers ................. 13

V. The Ohio Supreme Court’s Preemption

Analysis Follows Established Precedent .. . 15

iv

Contents

Page

VI. Recent Case Law — Cipollone, Silkwood, and

Sprietsma — Does Not Change the Preemptive

Scope of the BIA as Defined by Napier and

SD oc cdacedaseeus Ger aweece Rees 20

VII. All State Law in the Field is Preempted; It

Matters Not Whether There is a “Direct and

Substantial” Effect on the Federal Scheme ... = 22

ere err eee Te yy ree 24

Tre err rer rr la

Vv

TABLE OF CITED AUTHORITIES

Page

Cases:

Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571

(OROED a ss dvcdcnncsswebe ethene 20

Buckman v. Plaintiffs’ Legal Committee, 531 U.S.

WOE CHOON) Fs 6h seks daccdsseant ieee 11, 19

Carrillo v. ACF Ind., Inc., 20 Cal. 4" 1158 (1999)

(deeen nek keede a WAa eee ee ee 17

Carter v. Consolidated Rail Corp., 126 Ohio App.

3d 177, appeal denied, 82 Ohio St. 3d 1413 (1998)

(s060sh basen ha aeke ewes Ae eee Tee 9-10

Central of Georgia R. Co. v. Markert, 200 Ga. App.

851, cert. denied, 200 Ga. App. 895 (1991) .... 9

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)

(tabes eb an be eke dea eee 11, 15, 16, 20, 21

Consolidated Rail Corp. v. Pennsylvania Pub. Util.

Comm’n, 536 F. Supp. 653 (E.D. Pa.), aff’d, 696

F.2d 981 (3¢ Cir. 1982), aff’d, 461 U.S. 912 (1983)

(OR ae 18

Eldridge v. Missouri Pacific R. Co., 832 F. Supp.

pam Cees. G.. SIE. once dckoeneec eet 10

vi

Cited Authorities

Page

English v. General Electric Co., 496 U.S. 72 (1990)

PCT eT Tr et 16, 17, 22, 23

First Security Bank v. Union Pacific R. Co., 152 F.3d

877 (8 Cir. 1998) 2... 6. eee eee eee rere eee 7, 8,17

Forrester v. American Dieselelectric, Inc., 255 F.3d

1205 (9 Cir. 2001) ... 2... ee eee eee eee eee 7,8

Furlough v. Union Pacific. R. Co., 766 So. 2d 751

(La. App. 2000), writ denied, 781 So. 2d 556

(La. 2001) .... cee eeeecccneeeeccecceeees 9

Geier v. American Honda Motor Co., 529 U.S. 861

(2OOD) . cr cccccsccccvcecsssnsececswsseces 11, 23

General Motors Corp. v. Kilgore, 853 So. 2d 171

(Ala. 2002) ......... cee eeeeeeeees 9, 10, 12, 15, 17

Hines v. Davidowitz, 312 U.S. 52 (1941) ......--- 11

In re Amtrak “Sunset Limited” Train Crash in Bayou

Canot, Alabama, on September 22, 1993, 188

F. Supp. 2d 1341 (S.D. Ala. 1999) ......--+--- 10

In re Train Collision at Gary, Indiana, 670 N.E.2d

902 (Ind. App. 1996), appeal denied sub nom.

Dillon v. Chicago Southshore & South Bend R.

Co., 683 N.E.2d 591 (Ind.), cert. denied sub nom.

Dillon v. Northern Indiana Commuter Transp.

Dist., 522 U.S. 914 (1997) ..... 262s ee ee eee: 3,9

vii

Cited Authorities

Page

In re West Virginia Asbestos Litigation, 215 W. Va.

39, 592 S.E.2d 818 (2003) ............. 9, 10, 12, 17

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ... 11

Key v. Norfolk Southern Ry. Co., 228 Ga. App. 305

SUETE cs vidswu Ncapeedseapseccuaecsenuesys 9

Landzraf v. USI Film Products, 511 U.S. 244 (1994)

cea Re kth He TERENCE SLE EOE Adee 20

Law v. General Motors Corp., 114 F.3d 908 (9° Cir.

Seee cus tuxdeacdcavew 5-6, 7, 8, 12, 14, 15, 17, 24

Lorincie v. Southeastern Pennsylvania Transp. Auth.,

34 F. Supp. 2d 929 (E.D. Pa. 1998) ........... 15

Marshall v. Burlington Northern, Inc., 720 F.2d 1149

Sr? Ga See Sek datrercsnachbeeeexceci 4, 7, 8, 13

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) .. 16,22-23

Mickleson v. Montana Rail Link, Inc., 999 P.2d 985

Ss: SE wkdassovadssestdencceiewunwen 9

Missouri Pacific R. Co. v. Railroad Comm'n of Texas,

BaP Te OPO te hae BOOED 8 ii Ser accndeku sds 9

Morales v. Trans World Airlines, Inc., 504 U.S. 374

CEE ia Welakededeweb eB indueod eon she 00sec 11-12

vill

Cited Authorities

Page

Napier v. Atlantic Coast Line R. Co., 272 U.S. 605

EU hana cawnns soneeets serene eS" passim

Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135

NIN acc e nkkne seh nan ee eRe ROE ES 8

Norfolk Southern Ry. Co. v. Denson, 774 So. 2d 549

(Ale. DOOD. wane sncenncnserancesensncene® 9

Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344

COE cc gu ckeneanestes a weRe ren or 11

Oglesby v. Delaware & Hudson Ry. Co., 180 F.3d

458 (2° Cir.), cert. denied sub nom. Oglesby v.

General Motors Corp., 528 U.S. 1004 (1999)

a a a eee eae ea ee 3,9, 12, 15, 17

Oglesby v. Delaware & Hudson Ry. Co., 964 F. Supp.

ST OLD. S9PT) oon «25-45 sre renenee** 15

Pennsylvania R. v. Pub. Service Comm’n., 250 US.

Hee, OO ea Iola ieee nei ie 5

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)

BN cece re ee 7

Roth v. I&M Rail Link, L.L.C., 179 F. Supp. 2d 1054

(S.D. lowa 2001) ...---------20reer ener 10, 15

ix

Cited Authorities

Russello v. United States, 464 U.S. 16 (1983) ..... 14

San Diego Bldg. Trades Council v. Garmon, 359 U.S.

po PCT E Ee ere Pe Tere ree ror 2, 8, 10-11

Scheiding v. General Motors Corp., 22 Cal. 4° 471,

cert. denied, 531 U.S. 958 (2000) ............

ere ee etre rere 3, 6, 9, 12, 13, 15, 17, 19-20, 24

Seaman v. A.P. Green Ind., Inc., 184 Misc. 2d 603

oe ek er re ee er 10

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)

PEEPS COT LCE TELE Tee ee eee Tee 20, 21-22

Springston v. Consolidated Rail Corp., 130 F.3d 241

(6" Cir. 1997), cert. denied, 523 U.S. 1094 (1998)

Swift & Co. v. Wickham, 230 F. Supp. 398 (S.D.N.Y.

1964), appeal dismissed, 382 U.S. 111 (1965),

aff'd, 364 F.2d 241 (24 Cir. 1966), cert. denied,

eT eg rr ee rer re 6

Taylor AG Ind. v. Pure-Gro, 54 F.3d 555 (9 Cir.

aR i cee ees Heri > rer nPerOry Ieee Rahs iter Reig 14

x

Cited Authorities

Page

United States v. Locke, 529 U.S. 89 (2000) .....-- 18, 21

United Transp. Union v. Foster, 205 F.3d 851

(S™ Cir. 2000) ..... 2. cece cece cece eee neces 9

United Transp. Union v. Long Island R. Co.,455 US.

GTB CAGER). onic cc cece esse eens ccaweceees 18

Viad Corp. v. Superior Court, 64 Cal. Rptr. 2d 136

(Ct. App. 1997) ....... 2c cece eee erence eneee 15

Statutes and Rules:

PeG ick et ps rr eer rr reer ee 22

Federal Employers’ Liability Act (FELA)

45 U.S.C. § Sl etseg. 2.0... 0. c eee e neers 6,7,8

Locomotive [Boiler] Inspection Act (BIA)

49 U.S.C. §§ 20701-20903 .........----+--: passim

Department of Transportation Act

Pub. L. 89-670, 80 Stat. 931 (1966) .......--. 4

MRS BIDE 6 OU A 4

xi

Cited Authorities

Page

Other Authorities:

S. 236 § 2, 61% Cong. 2d sess. (1910) ........... 14

Bills Affecting Interstate Commerce: Hearings

Before the Comm’n on Interstate and Foreign

Commerce of the House of Representatives,

OE Ce, FEY CFSE onic etc cc sn cusne 14

Federal Railroad Administration, Report to Congress,

Locomotive Crashworthiness and Cab Working

ei | re ee eres eee ee 20

Tribe, American Constitutional Law (3d ed. 2000)

l

STATEMENT OF THE CASE

In general, petitioner’s Statement of the Case correctly

describes the substance of petitioner’s proposed state law

claims and the holdings of the trial court, the Ohio Court of

Appeals, and the Ohio Supreme Court that the claims are

preempted. (Petition for Writ of Certiorari (“Pet.”) 1-3, 10-

12.)!

SUMMARY OF ARGUMENT

There is no issue that warrants this Court’s review.

Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 (1926),

holds that the Boiler Inspection Act (BIA),? now codified

at 49 U.S.C. §§ 20701-20903, occupies the field of all

matters “within the scope of the authority delegated to the

[Interstate Commerce] Commission” — now the Secretary of

Transportation — including “the design, the construction, and

the material of every part of the locomotive,” i.e., the “entire

locomotive ... and all parts and appurtenances thereof.”

Id. at 608, 611, 613. See also Petitioner’s Appendix

(“Pet. App.”) 14a-15a. The BIA therefore preempts all state

law — including common-law tort claims against locomotive

equipment manufacturers — in the field, as it must. Otherwise,

railroads would have to change locomotives and their parts

' Petitioner wrongly states that his original complaint alleges

claims against “Respondents” (Pet. 1-2). The original complaint

alleged no claims against respondents, and the courts below denied

leave to add respondents as defendants because the claims petitioner

sought to assert against them are preempted.

? The BIA is now called the Locomotive Inspection Act (LIA)

and is also referred to in some court decisions as the FLIA or LBIA.

It is referred to herein as the BIA.

2

as trains crossed state lines or conform to the rule of the

most exacting state, a burden Congress deemed intolerable.

Napier disposes of the case at bar. Petitioner’s state law

claims attack the locomotive “design” that called for asbestos,

the “construction” that used it, and the “materials”

themselves, and petitioner does not claim otherwise. They

accordingly fall squarely within the Secretary’s authority and

so, the Ohio Supreme Court properly held, within the

preempted field.

That is true whether the state law under which the duty

is imposed is common-law or not, and is also true whether

the claim is made against the railroad operator or the

locomotive manufacturer. It has been settled for over forty

years that tort claims are designed to regulate and affect

conduct in the same manner as statutes and regulations, and

so tort claims are preempted just as statutes and regulations

are. San Diego Bldg. Trades Council v. Garmon, 359 U.S.

236, 246-47 (1959) (“The obligation to pay compensation

can be, indeed is designed to be, a potent method of governing

conduct and controlling policy.”). Moreover, inasmuch as

the BIA speaks to locomotive design, construction, and

material, the manufacturers that design and construct

locomotives and their parts are necessarily at the center of

that field. Thus, as a practical matter, state law imposing

duties on manufacturers must be preempted, lest the

uniformity required by federal law be destroyed.

The petition therefore presents no issue meriting the

exercise of this Court’s certiorari jurisdiction. The decision

of the Ohio Supreme Court does not conflict with a decision

of this Court or of any federal court of appeals or state

appellate court of last resort. Four circuit courts — the Ninth,

3

Eighth, Sixth, and Second Circuits — and three state supreme

courts — Alabama, California, and West Virginia — have

previously considered the precise question presented here,

see infra at 8-9, and all reached the identical conclusion:

state common-law tort claims against a locomotive

manufacturer are preempted by the BIA pursuant to Napier.

Moreover, the state cases all concerned asbestos. So settled

is the preemptive scope of the BIA as to petitioner’s claims

that this Court has denied certiorari to review the decisions

of three of these courts — the Second Circuit in Oglesby v.

Delaware & Hudson Ry. Co., 180 F.3d 458 (2¢ Cir.), cert.

denied sub nom. Oglesby v. General Motors Corp., 528 U.S.

1004 (1999), the Sixth Circuit in Springston v. Consolidated

Rail Corp., 130 F.3d 241 (6" Cir. 1997), cert. denied, 523

U.S. 1094 (1998), and the California Supreme Court in

Scheiding v. General Motors Corp., 22 Cal. 4° 471, cert.

denied, 531 U.S. 958 (2000) — as well as the decision of the

Indiana Court of Appeals in Jn re Train Collision at Gary,

Indiana, 670 N.E.2d 902 (Ind. App. 1996), appeal denied

sub nom. Dillon v. Chicago Southshore & South Bend R. Co.,

683 N.E.2d 591 (Ind.), cert. denied sub nom. Dillon v.

Northern Indiana Commuter Transp. Dist., 522 U.S. 914

(1997).

In short, Napier’s application here presents no conflict,

or important question, or any question truly in dispute at all.

4

REASONS FOR DENYING THE PETITION

I. Settled Law Preempts Petitioner’s Claims

For 78 years, since Justice Brandeis’ opinion for the

Court in Napier, it has been settled that Congress intended

the BIA to preclude all state law respecting locomotives and

locomotive parts and equipment used in interstate commerce.

272 U.S. 605.

Napier held that Congress intended the BIA “to occupy

the field” in respect to all areas subject to the BIA, and that

the BIA accordingly preempted all state law within the BIA’s

grant of authority to the Interstate Commerce Commission —

whose successor is the Secretary of Transportation, via the

Federal Railroad Administration? (FRA). /d. at 611, 613.

Those areas include “the entire locomotive and tender and

all parts and appurtenances thereof,” including “the design,

the construction, and the material of every part.” /d. at 608,

611. The Court found that the BIA conferred on the

Commission “general” power to regulate locomotive safety

equipment and that the BIA’s grant to the Commission of

that general power preempted all state law falling within the

scope of the Commission’s authority. /d. at 611-13.

The Court further found that the state laws at issue were

“within the scope of the authority delegated to the

Commission” by the BIA, id. at 611, and so were preempted

>In 1966 the power originally granted to the ICC was transferred

to the Secretary of Transportation. Department of Transportation Act,

Pub. L. 89-670, § 6(e)(1), 80 Stat. 931 (1966). See generally Marshall

v. Burlington Northern, Inc., 720 F.2d 1149, 1152 (® Cir. 1983).

The FRA, a part of the Transportation Department, exercises this

power. 49 C.F.R. § 1.49(c)(5), (g) (2004).

regardless whether they conflicted with a federal rule, or whether

there was any applicable federal rule at all:

It is also urged that, even if the Commission has

power to prescribe an automatic fire box door and

a cab curtain, it has not done so, and that it has

made no other requirement inconsistent with the

state legislation. This, also, if true, is without legal

significance. The fact that the Commission has not

seen fit to exercise its authority to the full extent

conferred, has no bearing upon the construction of

the act delegating power. We hold that state

legislation is precluded, because the Boiler

Inspection Act, as we construe it, was intended to

occupy the field. The broad scope of the authority

conferred upon the commission leads to that

conclusion. . .. [R]equirements by the Sates are

precluded, however commendable or however

different their purpose.

272 U.S. at 613 (emphasis added). In sum, “[i]f the protection

now afforded by the Commission’s rules is deemed inadequate,

application for relief must be made to it.” Jd.

Congress preempted the field for good reason. Locomotives

must cross state lines routinely, so the subject “is peculiarly one

that calls for uniform law.” See Pennsylvania R. v. Pub. Service

Comm'n, 250 U.S. 566, 569 (1919) (Holmes, J.) (mail cars).

This broad preemptive sweep is necessary to

maintain uniformity of railroad operating standards

across state lines. Locomotives are designed to travel

long distances . . . through interstate commerce.

The virtue of uniform national regulation “‘is self-

evident: locomotive companies need only concern

6

themselves with one set of equipment regulations

and need not be prepared to remove or add

equipment as they travel from state to state.”

* * *

If each state were to adopt different liability-

triggering standards, manufacturers would have to

sell locomotives and cars whose equipment could

be changed as they crossed state lines, or adhere to

the standard set by the most stringent state. Either

way, Congress’ goal of uniform, federal railroad

regulation would be undermined.

Law v. General Motors Corp., 114 F.3d 908, 910-11 (9" Cir.

1997) (citation omitted); accord Springston, 130 F.3d at 245;

Swift & Co. v. Wickham, 230 F. Supp. 398, 407-08 (S.D.N.Y.

1964) (Friendly, J.), appeal dismissed, 382 U.S. 111 (1965),

aff'd, 364 F.2d 241 (2¢ Cir. 1966), cert. denied, 385 U.S. 1036

(1967); Scheiding, 22 Cal. 4" at 483; Pet. App. 15a.

In addition, Congress gave petitioner — a railroad worker —

a potent remedy for his alleged injuries that does not undermine

the BIA’s goal of uniformity. Law, 114 F.3d at 912. It lies against

his employer, under the Federal Employers’ Liability Act

(FELA), 45 U.S.C. § 51 et seq.* “This remedy is strong

* Every common carrier by railroad while engaging in

commerce . . . shall be liable in damages to any person

suffering injury while he is employed by such carrier in

such commerce . . . for such injury or death resulting in

whole or in part from the negligence of any of the officers,

agents or employees of such carrier, or by reason of any

defect or insufficiency, due to its negligence, in its cars,

engines, appliance, machinery, track, roadbed, works, boais,

wharves, or other equipment.

iT

7

medicine.” Law, 114 F.3d at 912. Under it, a worker may

recover the same compensatory damages as are available at

common law where “employer negligence played any part,

even the slightest, in producing the injury or death for which

damages are sought.” Rogers v. Missouri Pacific R. Co., 352

U.S. 500, 506 (1957). FELA demonstrates how Congress

intended railroad workers injured on the job would be

compensated, and shows why its decision to preempt is

sensible.

Petitioner’s contention (Pet. 23-24) that preempting tort

claims leaves no recourse for passengers and bystanders is

not an issue in this case. Petitioner is a former railroad

employee, and so eligible to bring a FELA claim against

his former employer. The argument also goes nowhere.

Federal law occupies the field and alone can impose duties.

See Spinelli v. Gaughan, 12 F.3d 853, 858 (9 Cir. 1993)

(“Once Congress has chosen to preempt the state claim, it’s

free to give affected individuals a full federal claim, a claim

providing only for remedies limited to equity, a damages

claim only, or no claim at all.”) (emphasis added).

* Thus in Forrester v. American Dieselelectric, Inc., 255 F.3d

1205, 1209-10 (9 Cir. 2001), the Ninth Circuit expressly rejected

the plaintiff's argument “that Law preempts only claims by railroad

employees, not persons who have no remedy under the [FELA].”

Forrester observed that Marshall, First Security Bank v. Union

Pacific R. Co., 152 F.3d 877 (8" Cir. 1998), and Springston all had

previously “held a common-law claim of a motorist against a railroad

arising out of a crossing accident, to the extent it was based on the

railroad’s inadequate warning devices, [to be] preempted by the Act.”

Id. Accordingly, even as against railroads, all common-law claims

within the preempted field — including petitioner’s parade of horribles,

viz., that the “scope of resulting immunity from tort claims will be

endless” (Pet. 24) — are barred by the BIA; and only railroad workers

(Cont’d)

8

Il. There is No Conflict in the Appellate Courts

Contrary to petitioner’s argument (Pet. 3) that the

“Supreme Court of Ohio did not follow this Court’s directives

concerning proper preemption analysis,” the Ohio court got

it exactly right, adhering to an unbroken line of authority

from federal courts of appeals and state appellate courts of

last resort that follow Napier without exception and hold

that the BIA preempts state common-law and statutory claims

against railroad operators and locomotive manufacturers

related to the design, construction, or material of locomotives

and their parts — the field the BIA occupies. Forrester, supra

(9" Cir.) (BIA preempts non-employee product liability

actions against manufacturer of locomotive cranes); Law,

supra (9 Cir.) (quoting Garmon; BIA preempts design defect

and failure to warn claims against manufacturer concerning

engine insulation and brake noise); Marshall, supra (9" Cir.)

(Kennedy, J.) (BLA preempts common-law claims for failure

to install warning devices on locomotive); First Security,

supra (8" Cir.) (BIA preempts state common-law remedies

against railroad manufacturers for injuries arising out

of alleged design defects); Springston, supra (6" Cir.)

(BIA preempts common-law claims against manufacturer);

(Cont'd)

can obtain BIA relief under FELA. There is therefore nothing

particularly remarkable about the determination that, because of BIA

field preemption, all common-law claims of whatever nature against

locomotive manufacturers — which are not subject to FELA — should

likewise be barred. In sum, railroad workers have a statutory remedy,

but only against their employers, which are 100 percent liable through

FELA. Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 165-66

(2003). For all others — such as passengers, motorists, and bystanders

~ BIA field preemption simply precludes all remedies against both

railroads and manufacturers.

9

United Transp. Union v. Foster, 205 F.3d 851 (5" Cir. 2000)

(BIA preempts statute requiring engine be equipped with signal

devices); Missouri Pacific R. Co. v. Railroad Comm'n of Texas,

833 F.2d 570 (5 Cir. 1987) (BIA preempts state requirement

for emergency equipment); Consolidated Rail Corp. v.

Pennsylvania Pub. Util. Comm'n, 536 F. Supp. 653 (E.D. Pa.),

aff'd, 696 F.2d 981 (3¢ Cir. 1982), aff'd, 461 U.S. 912 (1983)

(BIA preempts state statute requiring locomotive speed

indicators); Oglesby, supra (2¢ Cir.) (BIA preempts employee

common-law claims against locomotive seat manufacturer);

General Motors Corp. v. Kilgore, 853 So. 2d 171 (Ala. 2002)

(BIA preempts claims against manufacturer for use of asbestos

in locomotive parts); Norfolk Southern Ry. Co. v. Denson, 774

So. 2d 549 (Ala. 2000) (BIA preempts state law claim seeking

to hold locomotive manufacturer liable for failure to install air

conditioning); Scheiding, supra (Cal.) (BIA preempts railroad

workers’ tort claims against manufacturer for asbestos-related

injuries); Mickleson v. Montana Rail Link, Inc., 999 P.2d 985

(Mont. 2000) (BIA preempts common-law claims against

railroad concerning locomotive equipment); Jn re West Virginia

Asbestos Litigation, 215 W. Va. 39, 592 S.E.2d 818 (2003) (BIA

preempts state tort law claims against manufacturers of

locomotives and asbestos-containing parts and components

thereof).°

* See also Key v. Norfolk Southern Ry. Co., 228 Ga. App. 305

(1997) (BIA preempts common-law claims against railroad by

employee injured in fall from locomotive steps); Central of Georgia

R. Co. v. Markert, 200 Ga. App. 851, cert. denied, 200 Ga. App. 895

(1991) (same); Dillon (In re Train Collision), supra (Ind. App.)

(BIA preempts common-law claims against manufacturer); Furlough

v. Union Pacific. R. Co., 766 So. 2d 751 (La. App. 2000), writ denied,

781 So. 2d 556 (La. 2001) (BIA regulation of locomotive ditch lights);

Carter v. Consolidated Rail Corp., 126 Ohio App. 3d 177, appeal

(Cont'd)

10

Accord Pet. App. 15a (quoting West Virginia Asbestos

Litigation, 529 S.E.2d at 822, and finding that, through the

BIA, Congress “occupied the field of railroad safety so

pervasively” that “any other path” was “blocked by an

avalanche of adverse authority from other jurisdictions, both

state and federal”).

III. Common-Law Tort Claims Fall Within the Field

Preempted by the BIA

Despite the uniform adverse authority, petitioner argues

(Pet. 13-16) that Napier is inapplicable because it addresses

only statutory claims, not tort claims. However, it has been

settled for over four decades that tort claims are intended to

affect conduct, regulate just as statutes and regulations do,

and are accordingly preempted as statutes and regulations

are:

Our concern is with delimiting areas of conduct

which must be free from state regulation if

(Cont'd)

denied, 82 Ohio St. 3d 1413 (1998) (BIA preempts common-law

claims arising from alleged asbestos exposure); Jn re Amtrak “Sunset

Limited” Train Crash in Bayou Canot, Alabama, on September 22,

1993, 188 F. Supp. 2d 1341 (S.D. Ala. 1999) (BIA preempts passenger

and employee common-law negligence and design defect claims

against manufacturer); Roth v. 1&M Rail Link, L.L.C., 179 F. Supp.

2d 1054 (S.D. lowa 2001) (BIA preempts state common-law tort

claims against manufacturer in action brought by widow of employee

crushed in collision); Eldridge v. Missouri Pacific R. Co., 832

F. Supp. 328 (E.D. Okla. 1993) (BIA preempts negligence claim based

on inadequate locomotive warning devices); Seaman v. A-P. Green

Ind., Inc., 184 Misc. 2d 603 (N.Y. Sup. Ct. 2000) (cited by the Ohio

Supreme Court in the case at bar and in Kilgore and West Virginia

Asbestos Litigation, BIA preempts common-law asbestos claims

against manufacturer).

paneer RE ee

- 11

national policy is to be left unhampered. Such

regulation can be as effectively exerted through

an award of damages as through some form

of preventive relief. The obligation to pay

compensation can be, indeed is designed to be, a

potent method of governing conduct and

controlling policy. Even the States’ salutary effort

to redress private wrongs or grant compensation

for past harm cannot be exerted to regulate

activities that are potentially subject to the

exclusive federal regulatory scheme.

Garmon, 359 U.S. at 246-47.

That continues to be true. See Cipollone v. Liggett Group,

Inc., 505 U.S. 504, 521 (1992) (quoting Garmon). This Court

has repeatedly held that ordinary preemption principles apply

to common-law damage actions. Geier v. American Honda

Motor Co., 529 U.S. 861, 868-69, 872 (2000) (products

liability claim preempted; “ordinary pre-emption principles,

grounded in longstanding precedent” dating back at least to

Hines v. Davidowitz, 312 U.S. 52, 67 (1941), will continue

to be applied in determining whether or not there is “pre-

emption of state tort suits”); Buckman v. Plaintiffs’ Legal

Committee, 531 U.S. 341, 352 (2001) (common-law claim

for personal injuries preempted; “ordinary” preemption

principles applied); see Cipollone, 505 U.S. at 521-23

(common-law failure to warn claims alleging personal injury

preempted); /nt’] Paper Co. v. Ouellette, 479 U.S. 481, 491

(1987) (common-law nuisance claims preempted); Norfolk

Southern Ry. Co. v. Shanklin, 529 U.S. 344, 358 (2000)

(Federal Railway Safety Act “pre-empts respondent’s state

tort claim”); see also Morales v. Trans World Airlines, Inc..,

504 U.S. 374, 385 (1992) (“there is little reason why state

12

impairment of the federal scheme should be deemed

acceptable so long as it is effected by the particularized

application of a general [damages] statute”).

This is as it must be. The prospect of tort damages would

compel manufacturers to make, and railroads to buy,

locomotives complying with judicially imposed tort duties.

Fifty states’ — and their juries’ — varying notions of railroad

“safety” would impose precisely the patchwork of varying

state laws, and ad hoc regulation by juries, that Congress

intended to preclude. Law, 114 F.3d at 910-11; accord

Oglesby, 180 F.2d at 462 (preemption of common law is

“necessary to keep the locus of regulation at the federal level

and maintain the uniformity that is a goal of the BIA”);

Kilgore, 853 So. 2d at 176; Scheiding, 22 Cal. 4" at 480;

West Virginia Asbestos Litigation, 592 S.E.2d at 823-24.

Still, petitioner argues (Pet. 15), “Congress could not

have possibly ... intended that the BIA would preempt

common law claims” against locomotive manufacturers

because those claims did not exist in 1911, before the advent

of strict liability. This argument misses the point. Congress

occupied the field of locomotive parts and equipment. State

law is precluded from that occupied field whether the law

precedes the occupation or comes after it; Congress’

occupation of the field is not an invitation for new state law

to intrude on it.” Indeed, Napier disposes of the argument;

’ See Scheiding, 22 Cal. 4" at 480:

But this reasoning proves too much: Equally logically,

Congress could not have intended to preserve that which

did not exist. Furthermore, the BIA was enacted as an

amendment to the [FELA] .. ., which significantly

(Cont'd)

GOT a Se ren fy ee

13

the state statutes there were enacted after the BIA, yet this

Court found them preempted. /d. at 607. But, if Congress

could only preserve federal supremacy by re-endorsing field

preemption after strict liability was introduced, it did so here.

Congress restated in 1970 that the BIA preempts the field,

and it recodified the BIA in 1994, expressly preserving

existing precedent on the subject such as Napier and

Marshall, 720 F.2d 1149 (BIA preempts tort claims).

In short, Napier has been the law for over 75 years, and

petitioner cites no case from any appellate court that questions

Napier’s controlling force over common-law claims against

locomotive manufacturers.

IV. The Statutory Scheme: The BIA Applies to Railroad

Manufacturers

Petitioner’s speculation (Pet. 8-9) that Congress intended

to exclude manufacturers from the cloak of preemption for

state tort claims — by originally including manufacturers

under the BIA but then intentionally deleting them —

misunderstands the legislative history of the statute. The 1910

legislative bill would have required manufacturers to indent

on each plate of a boiler the manufacturer’s name and

location, as well as a strength rating; however, Congress

dropped the provision after testimony revealed that such

(Contd)

expanded the ability of railroad workers to seek recourse

for on-the-job injuries. . . . Having enlar ged the basis for

recovery under federal law, Congress reasonably could

have intended to restrict it under state law.

(Citations omitted).

14

indentations were unnecessary and would cause damage.*

S. 236 § 2, 61% Cong. 2d sess. (1910); Bills Affecting

Interstate Commerce: Hearings Before the Comm'n on

Interstate and Foreign Commerce of the House of

Representatives, 61" Cong. Part V at 317 (1910).

Significantly, there is no indication that Congress intended

to repudiate the federal primacy of the BIA or to subject

locomotive manufacturers, but not operators, to state law.

Additionally, that the 1988 amendment added the

language “any person” to augment the penalty provision

simply has no relevance to the preemptive scope of the BIA

as respects manufacturers. In order to effectuate Congress’

goal of a nationally uniform standard of regulating

locomotive equipment, claims against manufacturers must

be preempted, and are preempted, for the same reasons claims

against railroads are: “[i]mposing tort liability on railroad

equipment manufacturers would .. . [force] them to conform

to [state standards, thereby] ... transfer[ring] the regulatory

locus from the secretary of transportation to the state courts

—a result the BIA was clearly intended to foreclose.” Law,

114 F.3d at 911-12. See also Pet. App. 16a, quoting Law.

Thus, it is what, not who, is regulated that is determinative.

See Taylor AG Ind. v. Pure-Gro, 54 F.3d 555, 562 (9° Cir.

1995). The BIA’s field preemption covers the “design, the

8 In addition, the 1910 bill was a precursor to the original BIA,

which did not occupy the field. Napier, 272 U.S. at 611. Amendments

by different Congresses years later — in 1915 and 1924 — did occupy

the field. /d. An off-point decision by Congress in 1910 is irrelevant

to the intent of later Congresses that decided to occupy the field. Cf.

Russello v. United States, 464 U.S. 16, 26 (1983) (rejecting “views

of a subsequent Congress” as “basis for inferring the intent of an

earlier one”) (citations omitted).

15

construction, and the material of every part of the

locomotive,” Napier, 272 U.S. at 611, and since those things

“are in the hands of a manufacturer,” Congress’ intent to

preempt that field “would be accomplished best by including

the manufacturer within the statute’s coverage.” Oglesby, 180

F.3d at 462; Law, 114 F.3d at 911-12.

Nor does the “overall structure of the BIA” (Pet. 9), as

interpreted by Lorincie v. Southeastern Pennsylvania Transp.

Auth., 34 F. Supp. 2d 929, 934 (E.D. Pa. 1998), further

petitioner’s argument that locomotive manufacturers fall

outside the BIA’s regulatory framework. This anomalous

federal district court decision relied in substantial part on

Viad Corp. v. Superior Court, 64 Cal. Rptr. 2d 136 (Ct. App.

1997), which was thereafter overruled by the California

Supreme Court in Scheiding, and on Oglesby v. Delaware &

Hudson Ry. Co., 964 F. Supp. 57 (N.D.N.Y. 1997), which

was thereafter reversed by the Second Circuit. Lorincie was

expressly rejected by the Second Circuit in Oglesby, 180 F.3d

at 462, and has not been favorably cited in any reported

decision. Indeed, every reported case to consider Lorincie

has rejected it. Oglesby, 180 F.3d at 462; Roth, 179 F. Supp.

2d at 1061; Kilgore, 853 So. 2d at 176.

V. The Ohio Supreme Court’s Preemption Analysis

Follows Established Precedent

In the face of the “avalanche” of precedent applying

Napier to preclude petitioner’s claims, the Ohio Supreme

Court need not — as petitioner urges (Pet. 3) — have

“examine[d] each of petitioner’s common-law claims” in

accordance with Cipollone, 505 U.S. 504, or “return[ed] to

the language and legislative history of the BIA” pursuant to

16

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996). Cipollone and

Medtronic do not in any way support petitioner’s thesis; both

cases involve express, not field, preemption and both hold

that common-law tort claims are subject to preemption.

Cipollone, 505 U.S. at 521-23 (common-law failure to warn

claims alleging personal injury preempted); Medtronic, 518

U.S. at 502-03 (common-law duties preempted to same extent

as statutes or regulations).

Petitioner’s assertion (Pet. 3) that the Ohio Supreme

Court should have examined the BIA’s language and history

to determine whether Congress specifically intended to

” Petitioner’s suggestion (Pet. 3 n.3; 19 n.9) that the preemption

issue is “unanswered” is flat wrong. This Court in Napier long ago

answered the preemption issue presented here. Additionally, it has been

firmly established by overwhelming case law following Napier that

common-law tort claims against locomotive manufacturers are preempted

by the BIA. See supra at 8-9. In any event, petitioner’s theory (Pet. 3

n.3; 19 n.9) that this Court may not rely on “judge made common law”

but must return to the federal statute itself to ascertain congressional

intent is without any legitimate support and appears designed merely to

obstruct informed decision-making. Indeed, in English v. General

Electric Co., 496 U.S. 72 (1990), the case cited by petitioner, this Court

rejected petitioner’s argument herein by noting that its decision was

premised on prior “case[s] in which the Court has had occasion to

consider the extent to which the Congress has pre-empted the field of

nuclear safety.” Jd. at 80. Moreover, all that Tribe, American

Constitutional Law, § 6-28, p. 1177 — cited by petitioner — meant in

stating that “preemption analysis is . . . a matter of precise statutory

construction rather than an exercise in free-form judicial policymaking”

was that “courts in general, or the Supreme Court in particular,” should

not feel “liberate[d],” in determining the preemptive effect of federal

statutes, “from a sense of fidelity to law, or from the judicial duty of

interpreting what a given law means.” /d. It cannot be doubted, as Tribe

agrees, that attention to precedent is a part of that duty, particularly in

“the context of statutory construction.” /d. at § 3-3, p. 251.

17

preempt each of his common-law tort claims misunderstands

field preemption. Field preemption “by definition means

congressional intent generally extends beyond the express

terms of the statute and regulations to all aspects coming

within their contemplation.” Carrillo v. ACF Ind., Inc., 20

Cal. 4 1158, 1168 (1999); see also Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947), citing Napier, 272 U.S. at

611 (Congress’ intent to occupy a field exclusively may be

inferred where “the federal interest is so dominant that the

federal system will be assumed to preclude enforcement of

state laws on the same subject”). Congress’ relevant “intent,”

therefore, in occupying the field is to “exclude state

regulation” from the field. English, 496 U.S. at 79-80 n.5.

Hence, Napier did not inquire whether Congress had

specifically considered curtains and fire doors; state law

respecting them was preempted because the requirements

were within the “broad scope of the authority conferred upon

the Commission.” 272 U.S. at 611. Likewise, Law, First

Security, Springston, Oglesby, Kilgore, Scheiding, and West

Virginia Asbestos Litigation found state law claims

preempted regardless of whether Congress had considered

the particular equipment or claims there at issue, or even

tort claims generally. Indeed, Scheiding was exactly correct:

“Napier has long established that Congress ‘intended to

occupy the field’ of locomotive equipment,” and to the extent

plaintiffs desire to avoid application of that preemption to

tort law, “they assume the burden of demonstrating a contrary

congressional intent.” 22 Cal. 4" at 481.

The Ohio Supreme Court correctly reiterated these

principles — “fhe court [in Napier] recognized that Congress

indeed had manifested the intention to ‘occupy the entire

field of regulating locomotive equipment’ .. .” — and rightly

18

agreed with the West Virginia Supreme Court of Appeals that

Congress’ occupation of the field is so pervasive “as to justify

a finding of preemption of that field.” Pet. App. 15a (citation

omitted).

Petitioner’s next contention (Pet. 3), that the Ohio court

“ignored the strong presumption against preemption,” is

untrue. There is no such presumption in areas historically

regulated by the federal government, such as railroads. United

States v. Locke, 529 U.S. 89, 108 (2000) (an “‘assumption’

of nonpre-emption is not triggered when the State regulates

in an area where there has been a history of significant federal

presence”). Indeed, petitioner’s own cases have no

application to his proposition. See CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 665-70 (1993) (where federal law

expressly provided for state jurisdiction, state law respecting

local grade-crossing signals, a subject over which states

“traditionally” exercise responsibility, was not preempted);

cf. Rice, 331 U.S. at 230 (presumption against preemption

applied because statute at issue, the Federal Warehouse Act,

legislated in field traditionally occupied by the states). Here,

there is no question that locomotive regulation involves

“a history of significant federal presence.” Locke, 529 U.S.

at 108. Locomotive design, construction, and materials have

been subject to exclusive federal regulation since Napier was

decided three-quarters of a century ago. Napier, 272 U.S. at

611-13; see also United Transp. Union v. Long Island R. Co.,

455 U.S. 678, 687-88 (1982) (“Railroads have been subject

to comprehensive federal regulation for nearly a century... .

There is no comparable history of longstanding state

regulation ... of the railroad industry.”).

Likewise, petitioner can find no solace in his argument

(Pet. 3) that the presumption against preemption is especially

19

strong where the traditional police power of the states is

concerned. Napier itself establishes that the BIA preempts

health-and-safety laws with respect to locomotives and their

parts. The states there defended their laws on the ground that

they sought to “prevent sickness and disease.” 272 U.S. at

612. Nonetheless, this Court held they were preempted

“however commendable or however different their purpose.”

Id. at 611-13. In other words, because locomotive regulation

is historically a federal field, no presumption against

preemption exists merely because petitioner claims personal

injuries. Buckman, 531 U.S. at 347-48 (no presumption

against preemption of personal injury claim said to stem from

fraud on federal agency; “Policing fraud against federal

agencies is hardly a field which the States have traditionally

occupied ... such as to warrant a presumption against finding

federal pre-emption of a state-law cause of action.”) (citation

omitted). Thus, as to locomotives, no presumption against

preemption exists.

Finally, petitioner, citing to the dissent in the Ohio

Supreme Court, argues (Pet. 4-5, 25) that inasmuch as

asbestos is no longer in use, tort actions for injuries allegedly

sustained by asbestos exposure would have no effect

on the design, construction, or material of locomotives.

This argument makes no sense. When locomotives were

made, asbestos was lawful. No state could forbid the

manufacturer from using asbestos or punish the manufacturer

in tort for using it. Punishing the manufacturer decades after

the fact for not discharging a duty it did not have decades

before and could not discharge decades later would make

the punishment illegal. See Scheiding, 22 Cal. 4° at 482

(“plaintiffs’ lawsuits would have a retroactive regulatory

effect by now allowing design control the BIA denied the

20

state at the time of manufacture”).'° The FRA intended no

such thing; to the contrary, it has explicitly found regulation

of asbestos unwarranted. See FRA Report to Congress,

Locomotive Crashworthiness and Cab Working Conditions

(1996).'' Respondent’s Appendix 2a, 7a, 13a.

VI. Recent Case Law — Cipollone, Silkwood, and

Sprietsma — Does Not Change the Preemptive Scope

of the BIA as Defined by Napier and Its Progeny

Petitioner (Pet. 16-19) relies on Cipollone, Silkwood v.

Kerr-McGee Corp., 464 U.S. 238 (1984), and Sprietsma v.

Mercury Marine, 537 U.S. 51 (2002), to support his assertion

that Napier is limited only to the preemption of state

legislation regulating locomotives, not common-law tort

remedies. These cases do not further petitioner’s argument.

'° See also Landgraf v. USI Film Products, 511 U.S. 244, 265,

280 (1994) (because “[e]lementary considerations of fairness dictate

that individuals should have an opportunity to know what the law is

and to conform their conduct accordingly,” changes in federal law

do not have retroactive effect “absent clear congressional intent

favoring such a result”); Arkansas Louisiana Gas Co. v. Hall, 453

U.S. 571, 584 (1981) (because of “the danger of conflict” and the

“usurpation of federal authority,” plaintiffs’ claims for higher

payments barred even though rates in question no longer applicable

and therefore any award could not threaten national uniformity).

'' In particular: “While previous locomotive design incorporated

the use of asbestos, and older locomotives remaining in service may

still contain limited amounts of asbestos, there is no evidence that

the presence of asbestos poses a problem to humans or the

environment.” Thus, “FRA does not feel that further action with

respect to the presence of asbestos in locomotive cabs is warranted

at this time,” and “recommends no action be taken on the issue of

asbestos in locomotives.”

21

In Cipollone, this Court interpreted the term “regulation”

in the context of, and as that term is used in, the statute’s

express preemption clause. 505 U.S. at 519. That

interpretation, therefore, is not one of general application,

especially so here, where there is no express preemption

clause and no reference in the BIA to “regulation.””?

Moreover, Cipollone held that “common-law damage

actions,” being “premised on the existence of a legal duty,”

necessarily impose “requirements or prohibitions” and so are

preempted. /d. at 521-23 (plurality opinion of four Justices),

548-49 (Scalia, J., agreeing on this point); accord Napier,

272 U.S. at 613 (requirements by the states as respect

locomotive regulation are precluded).

Petitioner gets no further in arguing that common law is

not preempted under Si/kwood, 464 U.S. 238. In Silkwood,

federal legislation made clear that “persons injured by nuclear

accidents were free to utilize existing tort law remedies.”

Id. at 251-52. The legislative history showed that Congress

assumed such remedies would be available and the “right of

the State courts to establish the liability ... in the normal

way [was] maintained.” Indeed, the “entire discussion

surrounding” amendment to the Act “was premised on the

assumption that state remedies were available.” 464 U.S. at

251, 253-54. Thus, Silkwood was grounded in specific

statutory evidence that Congress did not intend to preempt

tort claims. There is no such evidence here.

Similarly, Sprietsma turns on specific statutory evidence

that Congress intended to preserve tort claims. The statute

there expressly saved “liability at common law” from

'2 See Locke, 539 U.S. at 111, recognizing “the greater pre-

emptive force” of field preemption.

22

preemption, and the only reference in the legislative history

to field preemption predated the addition of the savings

clause. 537 U.S. at 62-65, 69-70. Also, the statute’s express

preemption clause “d[id] not cover common-law claims,”

further evidencing Congress’ intent not to preempt them in

the first place. 537 U.S. at 62-63, 67-70. Indeed, the express

preemption clause did not preempt anything at all absent a

regulation on point, there was no such regulation, and the

Coast Guard expressly stated that its decision not to regulate

did not have any preemptive effect. 537 U.S. at 65-69.

Obviously, Congress did not intend to preempt what it

expressly saved, let alone on a subject that was not preempted

at all. That has nothing to do with the BIA, which

(1) preempts all state law in its field, (2) is part of a statutory

scheme that creates an exclusive federal tort claim under

FELA, and (3) contains no evidence that Congress intended

to preserve state common-law tort claims.

VII. All State Law in the Field is Preempted; It Matters

Not Whether There is a “Direct and Substantial”

Effect on the Federal Scheme

Contrary to petitioner’s contention (Pet. 19), English,

496 U.S. 72, does not require a “direct and substantial effect”

on a federally regulated matter before state law is preempted.

English holds that Congress’ relevant “intent” in occupying

the field is “to exclude state regulation” — all of it — from the

field, so any state law in the field necessarily “conflicts with”

Congress’ intent. 496 U.S. at 79-80 n.5. In that case, the

federal government preempted state law prompted by nuclear

safety concerns but specifically saved state laws with

“purposes other than protection against radiation hazards.”

496 US. at 84 (quoting 42 U.S.C. § 2021(k) (1982)). This

Court held a state law preempted if either (1) it had a safety

23

purpose or (2) although not motivated by safety concerns

and so on its face preserved, it had a “direct and substantial

effect” on safety decisions. 496 U.S. at 84-85. Thus, contrary

to petitioner’s argument, the “direct and substantial effect”

language preempted state !aw otherwise preserved; it did not

save state law otherwise preempted, as petitioner urges.'?

Indeed, when English later focused on tort claims, it

merely echoed Silkwood’s observation that Congress had

expressly made clear that tort law was not within the field

preempted by the Atomic Energy Act. 496 U.S. at 85-86.

Here, Congress did no such thing. Thus, in the end, English

and Silkwood are besides the point — as is Medtronic, 518

U.S. 470, which involves express preemption and turns on

the scope of that statute’s express preemption clause, not on

a distinction between tort law and other laws. There, the

majority of Justices held that tort claims are preempted like

other state laws: “[I]nsofar as the [Medical Device

Amendments] pre-empt[] a state requirement embodied in a

state statute, rule, regulation, or other administrative action,

[they] would also pre-empt a similar requirement taking the

form of a standard of care or behavior imposed by a state

tort action.” 518 U.S. at 504-05 (Breyer, J., concurring);

'3 Petitioner additionally argues (Pet. 23) under English that

preemption “does not arise unless a defendant is subjected to

inconsistent duties, ‘or where it is impossible to comply with both

federal and state requirements.”” Petitioner has the standard wrong.

English does not so state, and Geier, 529 U.S. 861, 868-69, explicitly

rejects the notion. In any event, to the extent petitioner means to

equate field with conflict preemption, he is at odds with two hundred

years of Supreme Court law. Actually, his argument is circular, and

so, as his own cases demonstrate, ends where it begins: Congress’

relevant “intent” in occupying the field is “to exclude state regulation”

from the field, so any state law in the field necessarily “conflicts

with” that intent and is preempted. English, 496 U.S. at 79-80 n.5.

24

accord 518 U.S. at 510-11 (O’Connor, J., joined by

Rehnquist, Scalia & Thomas, JJ., dissenting) (preemption

clause “clearly pre-empts any state common-law action that

would impose a requirement different from, or in addition

to, that applicable under the FDCA -— just as it would pre-

empt a state statute or regulation that had that effect”).

In any event, petitioner’s claim would be preempted even

under his own proposed test. “[S]tate-law claims would have

a direct and substantial effect on the uniformity of locomotive

design, construction, and material mandated by Congress

through the BIA.” Scheiding, 22 Cal. 4* at 481. If each state

adopted different liability-triggering standards, locomotives

would have to change equipment at the border or carry

equipment required by the most stringent state’s law, thus

interfering with Congress’ goal of uniform federal regulation.

Law, 114 F.3d at 910-11.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

DANIEL MARKEWICH

Counsel of Record

ELLEN G. MARGOLIS

Mounp CoTTONn WOLLAN

& GREENGRASS

One Battery Park Plaza

New York, NY 10004

(212) 804-4200

Counsel for Respondent

Viad Corp.

APPENDIX

la

APPENDIX

Locomotive Crashworthiness and

Cab Working Conditions

Report to Congress

U.S. Department of Transportation

Federal Railroad Administration

Office of Safety Assurance and Compliance

September 1996

CHAPTER 10

Other Factors Affecting Locomotive Cab

Working Conditions

FRA examined locomotive crew exposure to vibration and

asbestos. Vibration can cause visual acuity problems and,

when significant and/or combined with other factors,

physiological effects. FRA conducted a review of open

literature on the subject matter, and this chapter provides a

summary of the findings.

FRA believes the best way to evaluate cab vibration is to

conduct instrumented vibration measurements and studies,

evaluate whether new cab designs successfully reduce

vibration levels, and—if applicable—develop vibration

guidelines.

2a

Appendix

o primary locomotive manufacturers stopped using

asbestos in their locomotives in the 1970’s, and FRA has not

identified sources of friable asbestos to which crew members

could be exposed. Based on this fact and the small number of

earlier vintage locomotives still in use, asbestos is not considered

an issue.

In addition to the working conditions addressed in previous

chapters, FRA also evaluated two other factors that are not

currently covered in FRA regulations, but which can affect the

working conditions aboard locomotives—vibration and

asbestos. This chapter discusses the source of vibration and

asbestos in current locomotives, the health and safety effects

associated with their presence, and recommended actions to

minimize or eliminate these effects on the performance of the

locomotive crew.

Vibration

Vibration—and its associated effects on health, proficiency, and

comfort—is inescapable given current locomotive design.

The Volpe National Transportation Systems Center (VNTSC)

and FRA have identified three major sources of vibration in

locomotive cabs':

* reciprocating equipment (engines, compressors,

alternators, superchargers and the like);

* * *

1. “Human Factors Guidelines for Evaluation of the Locomotive

Cab,” prepared by Jordan Multer, Robert Rudich, and Kevin

Yearwood, U.S. Department of Transportation, Research and Special

Programs Administration, John A. Volpe, Volpe National

Transportation Systems Center, Cambridge, MA 02142.

3a

Appendix

* conduct vibration measurements and studies'’;

¢ determine whether vibration may physiologically and/

or psychologically harm the locomotive crew over an

extended period of time;

¢ evaluate whether new cab designs successfully address

reduced vibration levels in locomotive cabs; and

¢ develop applicable vibration guidelines.

Asbestos _ ue

Review of Existing Asbestos Research and Literature"!

Asbestos is a filamentous mineral useful because of its resistance

to heat. Its primary use earlier in this century was as an insulating

material, but in more recent years it has found widespread use

in a number of other industries.

When asbestos is inhaled and deposited in the alveoli'?: it is

ingested by macrophages'’, and via mechanisms that are not

10. Measurements of operational vibrations on all three axes,

including those in the | to 10 Hz range, are needed to determine actual

vibration conditions in the cab. Once these levels are known, the need

and potential benefit of more extensive—and expensive—control can

be determined.

11. Industrial Toxicology: Safety and Health Applications in the

Workplace; Edited by Phillip L. Williams & James L. Burson, 1985.

ae Alveoli is an air sac of the lungs at the termination of a

bronchiole.

13. Macrophage is a large phagocytic cell of the reticuloendothelial

system.

4a

Appendix

currently clear, lead to the development of diffuse lung

damage and the formation of fibrosis. Asbestos can lead to

the development of a malignant tumor of the lining of the

chest cavity and lung surface called mesothelioma, and, in

association with cigarette smoking, can lead to an increased

incidence of bronchogenic carcinoma.

The diagnosis of asbestosis depends upon a well-documented

history of exposure, an accurate estimate of the degree of

exposure, and a characteristic clinical picture. The patterns

of impairment seen with asbestos exposure usually take 20

to 40 years to develop. There is evidence that lower exposure

can lead to the development of mesothelioma. Individuals

who develop moderate to severe degrees of asbestosis have

a poor prognosis, and those who develop malignant

mesothelioma have exceedingly poor outlook in that

mesothelioma cannot be removed surgically, nor is it

amenable to irradiation therapy or chemotherapy. The outlook

for those individuais who develop associated bronchogenic

carcinoma is the same for those who develop lung cancer

and who have not been exposed to asbestos—that is, the 5-

year survival rate is about 5 to 10 percent.

The long-term health consequences of this exposure are

unknown. It is highly unlikely that this small degree of

exposure could lead to the development of the interstitial

fibrotic pattern of impairment, but there is a possibility that

such exposure could lead to an increased incidence of

mesothelioma and, in smokers, to an increased incidence of

bronchogenic carcinoma.

Sa

Appendix

OSHA: Final Asbestos Rules"

In the August 10, 1994 Federal Register, OSHA published

final regulations to protect workers from exposure to

asbestos. The rules, which cover four million workers and

are estimated to cost $361.2 million annually, went into effect

on October 11, 1994. This OSHA ‘ule applies to railroad

operating employees.

At a press conference at OSHA headquarters, Assistant

Secretary of Labor (OSHA), Joseph A. Dear said the rules

will ensure effective long-term management of asbestos.

OSHA has reduced the permissible exposure limit (PEL) from

0.2 fibers per cubic centimeter of air as an 8-hour time-

weighted average to 0.1 fibers per cubic centimeter.

Asbestos in the Locomotive Cab

When steam generators were used on locomotives in

passenger service, asbestos cement was used to insulate the

heater coils to prevent loss of heat and contain the fire.

Whenever the steam generator was disassembled and the coils

had to be removed, the asbestos cement was broken up and

removed, releasing asbestos particles which could be inhaled

into the lungs. This source of asbestos was eliminated in the

1970’s, when the head end power system was developed for

the heating of passenger trains with electricity.

GE and EMD, the two primary manufacturers of current

locomotives, made the following statements regarding

asbestos in their locomotives:

14. Occupational Hazards, Sept. 1994, OSHA: Final Asbestos

Rule Covers 4 Million Workers.

6a

Appendix

¢ GE! stated that asbestos has not been permitted in

any facet of their locomotive production since October

1979. in addition, GE stated that there is no record of

asbestos ever being used in the cab environment of its

locomotives. Further, GE informed each of their

outside suppliers in mid-1987 that all sub-assemblies

provided for the production of locomotives must be

free of asbestos.

¢ EMD‘ stated that of their 12 specification for sound

and thermal insulation applications, only one

contained asbestos as a filler with a resin bonded

fiberglass and only fiberglass was used as a loose

insulating material. An EMD service bulletin was

issued on April 6, 1984, prohibiting the use of asbestos

for any purpose in locomotive construction. This

restriction also is applied to outside contractors

supplying sub-assemblies for the production of

locomotive construction depending upon the location.

EMD had identified 60 pages of part numbers which

contained asbestos in some form in previous

locomotive construction; however, these parts have

been discontinued.

15. Mr. R. Shults, Manager-Product & Environment Impact,

General Electric Company (GE).

16. Mr. Widdman, Electro Motive Division (EMD).

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Appendix

Conclusions

FRA has reviewed literature outlining the known health and

safety effects of asbestos exposure, and contacted

representatives from both primary locomotive manufacturers

regarding the present and past use of asbestos in the

construction of locomotives. While previous locomotive

design incorporated the use of asbestos, and older

locomotives remaining in service may still contain limited

amounts of asbestos, there is no evidence that the presence

of asbestos poses a problem to human or the environment.

The use of asbestos in locomotive production was terminated

many years ago, and both primary manufacturers currently

have policy statements prohibiting the use of asbestos in

locomotive construction. Based on the above, FRA does not

feel that further action with respect to the presence of asbestos

in locomotive cabs is warranted at this time.

8a

Appendix

CHAPTER 12

Findings and Implementation Strategy

FRA believes railroad safety will be best served by having

regulatory action that is founded on consensus among those

who are benefitted and/or burdened by the agency’s

regulation. The actions are divided into one of three

categories for each key area:

¢ initiate rulemaking to either adopt new standard or

revise existing standard;

¢ work with industry to develop design/performance

guidelines; or

¢ take no action.

Broad Implementation Strategy

The Rail Safety Enforcement and Review Act mandated that

FRA conduct a proceeding to determine the need for action

on locomotive crashworthiness and working conditions. This

mandate followed frequent expressions of concern by

employee organizations and recommendations of the National

Transportation Safety Board.

FRA has conducted a detailed research and analysis program

as described in the preceding chapters, and conducted field

examinations and inspection in an effort to determine the

9a

Appendix

benefits and, where available, the direct costs' of each

crashworthiness feature or working condition improvement

identified in the Act. Based on information obtained through

these efforts, FRA identified the following general options

for actions with respect to each individual area:

* * *

The ideas set forth in the Appendices are neither standards

nor guidelines, but rather concepts intended to provide the

basis for concrete and detailed discussion of options for

overall improvements in locomotive cab safety.

Locomotive Cab Working Condition Improvement

Implementation

Partnership Opportunities

FRA found that locomotive builders and operating railroads

are taking steps to improve the working conditions in

1. This report does not include a detailed, economic cost-benefit

analysis for each identified alternative. Such analysis necessarily

includes a quantified evaluation of the predicted cost savings based

on expected decreases in future losses when compared to a historical

review of accidents involving locomotives not equipped with

advanced crashworthiness protection systems. As such, this report

does not present a thorough examination of the “total” costs

associated with implementation of a particular crashworthiness

feature. Rather, the costs presented indicate only the costs associated

with the physical construction and/or implementation of that feature

onto an existing locomotive, and should not be misconstrued to

provide an evaluation of the economic feasibility of implementing

the particular crashworthiness feature.

10a

Appendix

locomotive cabs. However, historically railroad operations

have required train crews to work for long periods of time in

an environment that would be expected to accelerate the onset

of fatigue. The noise level in many locomotives is not

conducive to effective communication and may contribute

to long-term hearing loss of crew members, if exposure is

sustained and repetitive and if personal protective equipment

is not properly employed.

In hot weather, the temperature in a locomotive cab can reach

levels that are recognized to cause rapid heat exhaustion and

an accompanying drop in human performance. A combination

of lack of cleaning and maintenance by railroads and/or abuse

by crew members causes the sanitary facilities in many

locomotives to be in deplorable condition. The industry needs

to take additional action to improve these conditions.

The research and analysis done in response to the Act supports

further work in concert with the industry parties to address

temperature extremes in the locomotives cab and toilet areas.

Literature on human performance suggests that more strictly

controlling cab temperature would provide greater confidence

in the capacity of crew members to perform their duties safely

and efficiently. Remedial measures based on use of the “heat

stress index,” which includes the combined effects of high

temperature and high humidity on human performance, could

offer several potential health and safety benefits including:

* minimizing human errors due to heat stress;

* reduced cab noise, because windows can be closed

during warm weather;

lla

Appendix

* improved cab air quality; and

* reduced risk of flying or thrown objects entering the

cab through open windows.

Avoiding extremes of temperature will also aid in providing

adequate, functioning sanitary facilities.

The results of FRA’s survey of locomotive cab noise levels,

when compared with existing governmental standards and

literature on noise-induced hearing loss, suggest that noise

levels during some locomotive assignments are sufficiently

high to raise significant concerns. In the past few years, major

railroads have instructed employezs to wear personal hearing

protection and have placed employees in hearing

conservation programs. Newer locomotives have been

designed to reduce noise exposure, but retirement of older

locomotives will take many years; and many regional and

short line railroads use older locomotives as the mainstay of

their fleets.

FRA will work with the industry parties and others having

expertise in this field toward more appropriate noise exposure

standards that are centered on prevention of hearing loss.

The current noise standards for locomotive cabs given in 49

CFR 229 have not kept pace with standards applicable to

other workplaces, and opportunities for sharing information

within the railroad industry regarding positive approaches

to hearing conservation have not yet been exploited. A more

active response by FRA to occupational noise exposure will

be a major outcome of this study.

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Appendix

| Other issues that warrant concerted effort by FRA, employee

organizations, manufacturers and suppliers, and the railroads

include:

* cab sanitary facilities;

* cab ergonomics;

¢ cab seat design; and

¢ cab air quality.

Current regulations address these issues only with respect to

basic cab seat safety and venting of exhaust gasses. Yet each

falls clearly within the intent of the locomotive inspection

statute to the extent it bears on the health and safety of crew

members or the safe operation of the train.

Appendices K, L and M give respective examples of starting

points for a cooperative effort with industry to develop

approaches to each of these cab working condition

improvements. FRA will work with our industry partners to

develop appropriate approaches to these issues. FRA

developed the cab sanitary facilities recommended practices

given in Appendix K from the observations made by FRA

inspectors during the cab working conditions survey done to

support this report to Congress. The cab ergonomics

guidelines given in Appendix L are based on a cab ergonomics

study conducted by the Volpe National Transportation System

Center, and discussions with Amtrak and the Burlington

Northern Railroad. A concept for cab seat guidelines is given

in Appendix M.

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Appendix

No Action

FRA recommends no action be taken on the issue of asbestos

in locomotives, except to the extent any new information

requires that the issue be reopened. FRA found that friable

asbestos has not been used as a material in the construction

of locomotives for ten years or more. Locomotive builders

are careful to avoid the use of asbestos in new and rebuilt

locomotives. Asbestos remaining in older units is believed

to be encapsulated in individual components or systems. FRA

could find no evidence of asbestos being a health problem

for crews of older locomotives.