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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1146

## Text

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).

7a
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.

12a

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.

13a
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1508%3A3. Public record. Not legal advice.