# Opposition Brief — Abbott v. A-Best Products Products Co Co (No. 05-1608)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1054%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

: Supreme Cout, US.
4 FILED
No. 05-1608 AUG 16 2006

OFFICE UF 12: CEE
IN THE eminem came

Supreme Court of the United States

RONALD LEE ABBOTT, et ai.,
Petitioners,
v.
A-BEST PRODUCTS COMPANY, et ai.,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE
Circurr Court or West VirGinis, KANAWHA COUNTY

BRIEF IN OPPOSITION FOR RESPONDENT
VIAD CORP

DANIEL MARKEWICH
Counsel of Record
ELLEN MARGOLIS
MounbD Cotton WOLLAN
& GREENGRASS
One Battery Park Plaza
New York, NY 10004
(212) 804-4200

Counsel for Respondent
Viad Corp

202799 g

COUNSEL PRESS

($00) 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?

il

CORPORATE DISCLOSURE STATEMENT
PURSUANT TO SUPREME COURT RULE 29.6

Respondent Viad Corp has no parent corporation, and
there is no publicly held company that owns ten percent or
more of its stock.

ili

TABLE OF CONTENTS

SC UUENS P OOO ig oa di Ee ok ha ce 8

Corporate Disclosure Statement Pursuant to Supreme
CAE DIEZ GS Coir ie snes COE kA KR RRS

Te Oe PO aia 6 iG SR ea SS
PE Fi SC TOR aE es
Re kt” ar ae rer itr ae
Summary of Argument oe ore eae
Reasons for Denying the Petition ...............

I. Napier v. Atlantic Coast Line R. Co.:
Congress Intended Completely to Occupy the
Field of Locomotives and Locomotive Parts

ae ee oe on a oy oe ae Dae te? ae ie ey Ge ey ee ee et ey ee ee ee ae a Oe

II. An “Avalanche” of Federal and State
Appellate Case Law Holds that the BIA
Preempts Common-Law Claims Against
Locomotive Manufacturers ..............

Contents

Ill. In re West Virginia Asbestos Litigation Does
Not Conflict With Decisions of This Court ...

IV. Petitioners Have a Potent Remedy Under
WEE 6 io bob es bees e ee he ken ne aeae nes

V. Decisions by the Seventh Circuit Court of
Appeals and the Minnesota Supreme Court
Do Not Undercut the Avalanche of Authority
Foreclosing Petitioners’ State Tort Claims ....

VI. The BIA Applies to Locomotives Whether
They Are “On Line” or “Off Line” ........

| SRR tei ieee ati Rae ah i a Na al TAME AER re eS See ee

Page

21

TABLE OF CITED AUTHORITIES

Page
CASES:
Adkins v. Illinois Central R. Co., 326 F.3d 828
CPOE Bes bcdb eels ieee po age a
Angell v. Chesapeake & Ohio Ry. Co., 618 F.2d 260
COPS, SOEs nna ee a he bees 26, 27
Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280
CRDIGS eid bs ceca ore die tees Cee 16, 17
Bonner v. Union Pacific R. Co., No. CV03—134-S,
2005 WL 1593635 (D. Ida. July 6, 2005) ....... 23
Buckman v. Plaintiffs’ Legal Committee, 531 U.S.
741) (AEDs Wine PRR eee Oe Oe 13, 18

~ Carrillo v. ACF Ind., Inc., 20 Cal. 4" 1158 (1999) .. 26,27
Carter v. Consolidated Rail Corp., 126 Ohio App.
3d 177, appeal denied, 82 Ohio St. 3d 1413 (1998)

Central of Georgia R. Co. v. Markert, 200 Ga. App.
851, cert. denied, 200 Ga. App. 895 (1991) ..... 12

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

vi

Cited Authorities
Page
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)
a RAD aS ee ga bo 6.6 ale nee 86 es 11

Darby y. A—Best Prods, Co., 102 Ohio St. 3d 410
(2004), ceri. denied, 543 U.S. 1146 (2005) .....
MEAS SEAS ER oe ee 6, 11, 12, 13-14, 18

Deans v. CSX Transp., Inc., 152 F.3d 326 (4" Cir.

ee ee a Genes owing ont evs 27
Eldridge v. Missouri Pacific R. Co., 832 F. Supp.
at OH NOOO) oc cov veseusvevenvvess 12
English v. General Electric Co., 496 U.S. 72 (1990)
Ra Sa Nhe y ace San Oe Noe 8s We. w ee i 14,18
Engvall v. Soo Line R. Co., 632 N.W.2d 560 (Minn.
ae 21, 22, 23, 24
Estes v. Southern Pacific Transp. Co., 598 F.2d 1195
PPE oc adie reves ecseressseseess 27
First Security Bank v. Union Pacific R. Co., 152 F.3d
oe yk De) or 11, 20

Forrester v. American Dieselelectric, Inc., 255 F.3d
BA Cle BOGE) cvcveccccewesvececess 10-11, 20

vii

Cited Authorities

Page
Furlough v. Union Pacific R. Co., 766 So. 2d 751
(La. App. 2000), writ denied, 781 So. 2d 556 (La.
SPER cob cue dusccvseekks caren anenbnewe 12
Geier v. American Honda Motor Co., 529 U.S. 861
CRE 55d bc eked et chee ees aaiekbawied 18
General Motors Corp. v. Kilgore, 853 So. 2d 171
CAR: HED is eee uvinex's Circa een Gs 11, 12, 14
Gilvary v. Cuyahoga Valley Ry. Co., 292 U.S. 57
CSGUP i ved isc vecre wh ead eeeee sass 14, 15, 16, 17
Hines v. Davidowitz, 312 U.S. 52 (1941) ......... 18
Illinois Cent. R. Co. v. Pub. Util. Comm’n, 245 U.S.
BUS CLOGEE Sivercaviseeay eras eee Cee eens 16
In re Amtrak “Sunset Limited” Train Crash in Bayou
Canot, Alabama, on September 22, 1993, 188
F. Supp. 2d 1341 (S.D. Ala. 1999) ............ 12

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.
Diilon v. Northern Indiana Commuter Transp.
Ee, Fas US FUR SOE 6 vk cc edi kbseveses 6, 12

vill
Cited Authorities

Page

In re West Virginia Asbestos Litigation, 215 W. Va.
PREMEGEE Sheva thease eehos hekne seekers passim
Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) .... 28

Key v. Norfolk Southern Ry. Co., 228 Ga. App. 305
CRED did os downs sth ice ieces tebe eks 12

Law v. General Motors Corp., 114 F.3d 908 (9" Cir.
ag gi) BAM EL PNET DRE REP Os baa ear tien Garr ene Bteee ee passim

Lorincie v. Southeastern Pennsylvania Transp. Auth.,
34 F. Supp. 2d 929 (E.D. Pa. 1998) ....... 12, 13, 14

Mahutga v. Minneapolis, St. Paul & Sault Ste. Marie
Be CS DE CED hc ckekaies vinakees 23, 24

Marshall v. Burlington Northern, Inc. , 720 F.2d 1149
Pera: SOON awbetus sadudevusnawaseees 7, 11,20

Mickleson v. Montana Rail Link, Inc., 999-P.2d 985
NN SET ioe i vabs bs oucnes bee berkiare I

Missouri Pacific R. Co. v. Railroad Comm’n of Texas,
sige. B5 Fe gk @ 3k 7) en ne eareRT Semen EnmE 1]

Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205
CMON ks Vice eae se Kewckeeseeneeeti 14, 15

ix

Cited Authorities
Page
Napier v. Atlantic Coast Line R. Co., 272 U.S. 605
CEROGE RH ibsh-cd eC UN eon ee baew ks epas wews passim
Nash vy, Florida Ind. Comm’n, 389 U.S. 235 (1967)
TUR T RTE oo eC 28
New York Central R. Co. v. Winfield, 244 U.S. 147
“1 3g AM Rep Sate ROR See en Ea ire Pee POnrer eer 16
Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135
GEE: Wek ecco) chk eh abe dhe is 20, 21, 23
Norfolk Southern Ry. Co. v. Denson, 774 So. 2d 549
CU AE: cia he koa s Cea ReES eke a4 43 11
Oglesby v. Delaware & Hudson Ry. Co., 964 F. Supp.
57 (N.D.N.Y. 1997), rev'd, 180 F.3d 458 (2™ Cir.
SNE yeaa sees a bala ee eee 4s 14

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

458 (2™ Cir. 1999), cert. uenied sub nom. Oglesby

v. General Motors Corp., 528 U.S. 1094 (1999)
EY Oo Oe 2 Behe tr og Ny ap emer a are 6, 11, 14, 27

Pennsylvania R. v. Pub. Service Comm'n, 250 U.S.
nL. Ee eS ROR hE aoe 8

Phillips v. CSX Transp., Inc., 190 F.3d 285 (4" Cir.
a SPORE Nee aT oe eae eee aRaCK pre Nee 26-27

Cited Authorities
Page
Pinkham v. Maine Central R. Co., 874 F.2d 875
tage By, Seer ge See i Peoner aetris te ye 27
Rogers v. Missouri Pacific R. Co., 352 U.S. 500
SOPNER 2 Vet ecerwl ereredeel Vrowanssreeees 19
Roth v. I&M Rail Link, L.L.C., 179 F. Supp. 2d 1054
EOE a y's a. b b/w ood a kelle aa 12, 14, 23
San Diego Bidg. Trades Council v. Garmon, 359 U.S.
REE Khe cinnd Sob be eke neacendareut 5, 11,18
Scheiding v. General Motors Corp., 22 Cal. 4" 471,
cert. denied, 531 U.S. 958 (2000) ........... passim
Seaman v. A.P. Green Ind., Inc., 184 Misc. 2d 603
a: Be Ry OEE bout cecKetiwetertinya 12, 25
Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)
baieebanie, Leeks eis esaabendekebas 14, 18
Southern Ry. Co. v. Lunsford, 297 U.S. 398 (1936)
eeewes bee LAU LAURORN bE Cee Rene Cherian? 26

Spinelli v. Gaughan, 12 F.3d 853 (9" Cir. 1993) ...19-20

Springston v. Consolidated Rail Corp., 130 F.3d 241
(6" Cir. 1997), cert. denied, 523 U.S. 1094 (1998)
isigeeneh ep bas Shine teedepeseud 6, 8-9, 11, 20

xi

Cited Authorities

Steer v. Burlington Northern, Inc., 720 F.2d 975
Pe SE cave rete eee snredtesesacueees 27

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 (2™ Cir. 1966), cert. denied,

a St Pe ere Pree 9
Taylor AG Ind. v. Pure~Gro, 54 F.3d 555 (9" Cir.
(| IT Sy er One oe meee re 26
Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 (1916)
PP Pe Pay Pee ee eee TE PO TT eT er 14, 15
Trinidad v. Southern Pacific Transp. Co., 949 F.2d
Sree os SEE Snow eee and wen dw atbaeewes 27
Union Pacific R. Co. v. Motive Equip., Inc., 714
N.W.2d 232 (Ct. App. Wis. 2006) ............ 23
United States v. Locke, 529 U.S. 89 (2000) ....... 13

United Transp. Union v. Foster, 205 F.3d 851
UR ee ena 11

United Transp. Union v. Long Island R. Co., 455 U.S.
GE a hcbnsehswadwekeh ved haweebases 9

Urie v. Thompson, 337 U.S. 163 (1949) .......... 15

xii
Cited Authorities
Page
Varney v. Norfolk & Western Ry. Co., 899 F. Supp.

SOO LOEW, VE USS isc hacerensaeeeevens 27
Viad Corp v. Superior Court, 64 Cal. Rptr. 2d 136

As RG SPE ic Sleek v e'cA Ces eese leeweon 14
Vorhees v. Naper Aero Club, Inc., 272 F.3d 398

C2? RA PEE 0 kd dees pab ibs ose eae 22
Xerox Corp. v. County of Harris, Texas, 459 U.S.

FOS CRE 6 FN AK ewes ook ee ie ee 28
STATUTES, RULES, AND REGULATIONS:

AROS BOMON AG o6iicc oeeclinvesa eee 18
Department of Transportation Act, Pub. L. No. 89-

670, § 6(e)(1), 80 Stat. 931 (1966) ............ 7
FORGE AVIRA... 6 60 ke edcctsert rie 22
Federal Employers’ Liability Act (FELA),

gia oe FF ROY Pe rer eco ey passim
Federal Railroad Safety Act (FRSA),

SO aa. 6 ae CMe ekcsk eee ye

Locomotive Boiler Inspection Act (BIA, LIA, FLIA,
LBIA), 49 U.S.C. § 20701 et seg. ........... passim

xill

Cited Authorities
Page

Rail Safety Enforcement and Review Act of 1992,
Pub. L. No. 103-365, § 10, 106 Stat. 972 (1992)

OGL had ci eis pv piss ees vet we'e cues 24
Revision of Title 49, Transportation, U.S.C., Pub.
L. No. 103-272, §§ I(a), 6(a), 108 Stat. 745, 1378
(1994); H.R. Rep. No. 103-180 (1994), reprinted
EWE CARA. GEO co cccccreccieevess 9
Safety Appliance Act (SAA), 49 U.S.C. § 20301 et seq.
DS Uh VES ca wie debe ededes veeeees passim
UPR EEO MEED wocwevcccdvvvercseveveste l
H.R. Rep. No. 91-1194 (1970), reprinted in 1970
EEE PEMOE ceva becdvscrcusecgecdeicce 9
IUCR AMCNOMEED occ csccavvcvcvecevecece 23
ir oss en vesbepovevecivevoves il
49 C.F.R. § 1.49(c)(5), (g) (2004) .........2 000 7

me mt, & 220 Oe) (OMI) ............0ceces. 28

xiv

Cited Authorities
Page
OTHER AUTHORITIES:
Dep’t of Transp., FRA, Railroad Occupational Safety

and Health Standards; Termination, 43 Fed. Reg.
105s Coane £6. TSF 6a i red eedieieews 10

FRA Report to Congress, Locomotive Crashworthiness
and Cab Working Conditions (Sept. 1996) ..... 23-24

14B Wright, Miller and Cooper, Federal Practice
and Procedure § 3722.1 (3" ed.) .....-..ce0e. 22

XV

TABLE OF APPENDICES

Appendix A — Appellees’ Petition For Rehearing In
The Supreme Court Of Appeals Of West Virginia

.¢¢e¢ Fe 6.0 0 68.4. 6.68 2. 2 6 O68 6 8.8 8 COR CBREBRea CSE Oe

Appendix B — Order Of The Supreme Court Of
Appeals For The State Of West Virginia Denying
Petition For Rehearing Dated January 15, 2004 ...

Appendix C — Excerpts From Department Of
Transportation Policy Statement .............

Appendix D — Report To Congress Of The U.S.

Department Of Transportation Dated September
SE CPL CL EOS ESE ASM SMCS We Fr pee

Page

l

JURISDICTION

This Court can have jurisdiction under 28 U.S.C. § 1257(a)
only if it treats the within petition as directed to the Circuit
Court of Kanawha County rather than, as styled by petitioners,
to the West Virginia Supreme Court of Appeals, as it is evident
that “the highest court . . . in which a decision could be had”
was the Circuit Court.'

STATEMENT OF THE CASE

Petitioners’ Statement of the Case misstates two of the three
questions certified to the West Virginia Supreme Court of
Appeals, and distorts and omits procedural history relevant to
certain of petitioners’ legal arguments.

Petitioners and others allegedly similarly situated
commenced mass asbestos litigation in West Virginia asserting,
inter alia, state-law product defect and failure to warn claims
against certain defendant manufacturers, distributors, and
suppliers of locomotives and locomotive and railcar parts for
purported injuries resulting from alleged exposure to asbestos-
containing products. Some defendants, including respondent Old
Orchard Industrial Corp., the successor to Vapor Corp, a
manufacturer of locomotives and locomotive parts’, moved for
summary judgment on the ground that the Boiler Inspection
Act (BIA) preempted petitioners’ claims; other defendants,

' The petition should nevertheless be dismissed for lack of
jurisdiction because the decision below is not final under 28 U.S.C.
§ 1257(a) inasmuch as it does not conclude the litigation as to all causes
of action and all parties.

? Respondents Viad Corp and Gencral Motors Corp., likewise
manufacturers of locomotives and locomotive parts, were not parties to
the litigation at that time.

> 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

which manufactured and supplied brakes for both locomotives
and railcars, filed summary judgment motions on preemption
grounds pursuant to the Safety Appliance Act (SAA) and the
Federal Railroad Safety Act (FRSA) as well as the BIA.

The motions were denied; however, the Kanawha County
Circuit Court certified the following three questions — two of
which petitioners misquote in their petition (Pet. 1) — to the
West Virginia Supreme Court of Appeals:

1. Are state tort claims against manufacturers of
parts or components of trains, locomotives, railcars,
and similar vehicles used on any railroad, which is
engaged in interstate or forcign commerce,
preempted by federal law under the Safety Appliance
Act, 49 U.S.C. § 20301 et seg.?

2. Are state tort law claims against manufaciurers
of parts or components of trains, locomotives,
railcars, and similar vehicles used on any railroad,
which is engaged in interstate or foreign commerce,
preempted by federal law under the Federal Railroad
Safety Act, 49 U.S.C. § 20101 et seq.?

3. Are state tort law claims against manufacturers
of parts or components of railroad locomotives
preempted by federal law under the Locomotive
Boiler Inspection Act, 49 U.S.C. § 20701 et seq.?

Following the West Virginia Supreme Court’s grant of
review, respondent Viad was permitted to tmiervene as a party
appellant and participated fully thereafter in the briefing and
argument of the appeal along with Old Orchard and the two
brake manufacturers. Ultimately, the West Virginia Supreme
Court answered the third question — implicating only the BIA —
in the affirmative, holding that “[b]ecause this finding makes

3

consideration of the first two questions unnecessary, we decline
to answer them.” Jn re West Virginia Asbestos Litigation, 215
W. Va. 39, 41 (2003). Petitioners then filed an application for
rehearing, agreeing that only the third certified question needed
to be answered “with regards to the LBIA [defendants] Vapor‘
and Viad” but arguing that such was not the case as to the brake
manufacturers (neither of which is a respondent herein).°
Respondent’s Appendix A, page 2a. Petitioners thus conceded
that consideration only of the BIA — not the SAA or the FRSA —
was required to determine whether petitioners’ claims against
Vapor and Viad were preempted.

The application for a rehearing was denied as to all parties.
Respondent’s Appendix B. Subsequently, respondent Viad’s
motion for summary judgment was granted by the Kanawha
County Circuit Court in reliance on the holding in Jn re West
Virginia Asbestos Litigation and judgment entered in its favor
on July 27, 2005.° Petitioners’ Appendix A. On March 15, 2006,

* j.e., Old Orchard.

* Petitioners explained: “Vapor and Viad (or their predecessors)
manufactured locomotive and/or locomotive components that contained
asbestos. The other two [defendants], Railroad Friction Products
Corporation (RRFPC) and American Standard, Inc. (ASI) manufactured
and supplied rail car and locomotive brakes which at certain times in
the past contained asbestos. . . . {Vapor moved for summary judgment
on the claims below solely on the basis of the [BIA]. . . as that act is
germane only to locomotives. ... RRFPC and ASI, on the other hand,
moved for summary judgment on the claims below on the basis of both
the [BIA] and the [SAA] . . . as those companies made or distributed a
product that was used both on locomotives and rail cars” (emphasis in
original). Respondent’s Appendix A, pages la-2a.

* The motions of respondents Old Orchard and General Motors,
which had by then become a party to the West Virginia asbestos litigation,
were also granted. The Circuit Court held in part in its two orders that:

(Cont'd)

4

the West Virginia Supreme Court denied the petition seeking
leave to appeal from the Circuit Court’s final judgment.
Petitioners’ Appendix B.

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 BIA, now codified at 49 U.S.C. §§ 20701-20903 (1994),
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.” Jd. at 608, 611, 613. 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 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. Petitioners’ state-law
claims attack the locomotive “design” that called for asbestos,
the “construction” that used it, and the “materials” themselves,

(Cont'd)

“(1) The parties agree that the claims asserted against [respondents] are
based on the alleged exposure to asbestos from locomotives and
locomotive parts manufactured, sold, and/or supplied by [respondents]”;
“(2) The West Virginia Supreme Court of Appeals has determined that
any and all tort claims based on the alleged exposure to asbestos from
locomotives and locomotive parts are preempted by federal law
under the [BIA]. . .”; and “(4) Each and every individual claim asserted
against ... Vapor and Viad in the . . . consolidated civil action” and
“fajll of the claims asserted against GM in each and every one of these
civil actions are preempted by federal law under the [BIA]... .”
Petitioners’ Appendix A.

5

and petitioners do not claim otherwise. They accordingly fall
squarely within the Secretary’s authority and so, the West
Virginia Supreme Court and Kanawha County Circuit 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 45 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, 247 (1959) (“The obligation
to pay compensation can be, indeed is designed to be, a potent
method of governing conduct and controlling policy.”).
Moreover, the BIA speaks to “manufacturer(s] . . . of railroad
equipment” thus, the manufacturers that design and construct
locomotives and their parts are necessarily at the center of that
field and, 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 Kanawha Circuit Court following that of the West Virginia
Supreme Court in /n re West Virginia Asbestos Litigation does
not conflict with a decision of this Court or of any federal or
State appellate court. Four circuit courts - the Ninth, Eighth,
Sixth, and Second Circuits — and three state supreme courts —
Alabama, California, and Ohio — have previously considered
the precise question presented here, see infra at pp. 10-12, and
all reached the identical conclusion: state common-law tort
claims against locomotive manufacturers 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

6

petitioners’ claims that this Court has denied certiorari to review
the decisions of four of these courts — the Second Circuit in
Oglesby v. Delaware & Hudson Ry. Co., 180 F.3d 458 (2™ Cir.
1999), 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); the Ohio Supreme Court in Darby
v. A-Best Prods. Co., 102 Ohio St. 3d 410 (2004), cert. denied,
543 U.S. 1146 (2005)’; 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 /n 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.

REASONS FOR DENYING THE PETITION

I. Napier v. Atlantic Coast Line R. Co.: Congress Intended
Completely to Occupy the Field of Locomotives and
Locomotive Parts

For 80 years, since Justice Brandeis’s opinion for a
unanimous 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. /d., 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

’ Darby, where this Court most recently denied certiorari, relied
in considerable part on /n re West Virginia Asbestos Litigation.

7

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). Jd. at 611, 613. Those areas
encompass “the entire locomotive and tender and all parts and
appurtenances thereof,” including “the design, the construction
and the material of every part.” Jd. 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.
Id. 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 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

* In 1966 the power originally granted to the ICC was transferred
to the Secretary of Transportation. Department of Transportation Act,
Pub. L. No. 89-670, § 6(e)(1), 80 Stat. 931 (1966). See generally
Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1152 (9" Cir.
1983). The FRA, a part of the Transportation Department, exercises
this power. 4 CPLR. § 1.49(c)(5), (g) (2004).

8

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 States are
precluded, however commendable or however
different their purpose.

Napier, 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
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) (Kozinski, J.) (citation omitted); accord Springston, 130

9

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 Ca’. 4" at 483.

Petitioners suggest (Pet. 13-14) that Law misapplied federal
preemption principles by examining the effect of state
regulations on the federal goal. This type of analysis, petitioners
claim, “does not properly belong to the doctrine of field
preemption” but, rather, to that of conflict preemption. Law,
however, got the preemption analysis exactly right, merely
explaining the self-evident and practical reason Congress
intended the BIA to occupy the field and displace all state law.
See, e.g., 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. .. .
Moreover, the Federal Government has determined that a
uniform regulatory scheme is necessary to the operation of the
national rail system.”). Indeed, Congress itself, long before Law,
articulated the importance of uniform, federal laws relating to
railroad safety: “Laws, regulations, and orders related to railroad

safety shall be nationally uniform to the extent practicable.”
49 U.S.C. § 20106 (FRSA).’ So too did the FRA:

9 In enacting the FRSA, 49 U.S.C. § 20101 ef seqg., in 1970,
Congress reaffirmed that under the BIA, and five other laws, “where
the Federal Government has authority, with respect to rail safety, it
preempts the field”; Congress stated in 1970 that these laws “have served
well” and “chose to continue [them] without change.” H.R. Rep. No.
91-1194 (1970), reprinted in 1970 U.S.C.C.A.N. 4104, 4105, 4108. In
recodifying the BIA and other transportation laws in 1994 without
substantive change, Congress expressly preserved “the precedent value
of carlier judicial decisions,” such as Napier. Revision of Title 49,
Transportation, U.S.C., Pub. L. No. 103-272, §§ 1(a), 6(a), 108 Stat.
745, 1378 (1994); H.R. Rep. No. 103-180, at 3, 5 (1994), reprinted in
1994 U.S.C.C.A.N. 818, 820, 822.

10

[I]t is essential that the safety of railroad operations
be the responsibility of a single agency and that that
agency undertake new initiatives in an informed and
deliberate fashion, weighing the impact of particular
proposals on longstanding industry practices and pre-
existing regulations. . . . { [I]t is the judgment of the
agency that piecemeal regulation of individual

hazards . . . by any other agency of government
would be disruptive and contrary to the public
interest.

Dep’t of Transp., FRA, Railroad Occupational Safety and
Health Standards; Termination, 43 Fed. Reg. 10,583, 10,585-
86 (March 10, 1978). Respondent’s Appendix C.

II. An “Avalanche” of Federal and State Appellate Case
Law Holds that the BIA Preempts Common-Law
Claims Against Locomotive Manufacturers

The West Virginia Supreme Court of Appeals correctly held
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.” Jn re West Virginia Asbestos Litigation, 215
W. Va. at 43. Accordingly, the Kanawha Circuit Court’s decision
granting summary judgment in reliance upon this holding is
unassailable.

A nearly unbroken line of federal and state appellate
authorities 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 v. American
Dieselelectric, Inc., 255 F.3d 1205 (9" Cir. 2001) (BIA preempts
non-employee product liability actions against manufacturer of

li

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.) (BLA preempts common-law claims
for failure to install warning devices on locomotive) (Kennedy,
J.); First Security Bank v. Union Pacific R. Co., 152 F.3d 877
(8 Cir. 1998) (BIA preempts state common-law remedies
against railroad manufacturers for injuries arising out of alleged
design defects); Springston, supra (6" Cir.) (BLA preempts
common-law claims against manufacturer); United Transp.
Union vy. 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); Darby, supra
(Ohio) (BIA preempts railroad workers’ asbestos claims against
locomotive manufacturers); In re West Virginia Asbestos
Litigation, supra (W. Va.) (BIA preempts state tort law claims

12

against manufacturers of locomotives and asbestos-containing
parts and components thereof).'°

Astoundingly, petitioners virtually ignore this
overwhelming authority and instead devote nearly two pages
(Pet. 11-13) to a discussion of one anomalous case, Lorincie v.
Southeastern Pennsylvania Transp. Auth., 34 F. Supp. 2d 929
(E.D. Pa. 1998), which, according to petitioners, properly
declined to “broadly stretch the preemption umbrella of the LBIA
to cover actions against [manufacturers]” given the “requirement
that Congress’s intent to preempt state police powers be ‘clear
and manifest,’ and the strong presumption against preemption
in the area of health and safety.” Pet. 13.

10 See also Key v. Norfolk Southern Ry. Co., 228 Ga. App. 305
(1997) (BLA 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 preempts negligence claim based on inoperative ditch
lights); Carter v. Consolidated Rail Corp., 126 Ohio App. 3d 177, appeal
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. I&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 widew of employee crashed in collision); Eldridge v.
Missouri Pacific R. Co., 832 F. Supp. 328 {£.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) . ted by the West Virginia Supreme Court in the case at bar,
and in Darby and Kilgore; BIA preempis common-law asbestos claims
against manyfacturer).

13

Petitioners’ reliance on Lorincie is misplaced for a number
of reasons. First, this Court has unequivocally held that there is
no “‘assumption’ of nonpre-emption . .. when the State regulates
in an area where there has been a history of significant federal
presence.” United States v. Locke, 529 U.S. 89, 108 (2000).
Thus, “there is no beginning assumption that concurrent
regulation by the State is a valid exercise of its police powers”
(id.), and respondents need not “overcome the ‘strong
presumption’”” that petitioners’ claims fall outside the preempted
field.’ Second, Congress’s “clear and manifest” intent to occupy
the field — “the entire locomotive and tender and all parts and
appurtenances thereof,” including “the design, the construction
and the material of every part” — and preempt state police powers
has been well established since Napier. Scheiding, 22 Cal. 4" at
475, 482; see also Darby, 102 Ohio St. 3d at 418; Law, 114
F.3d at 913 (“Through the BIA, the federal government has
established a comprehensive, national regime of locomotive

" In addition to Lorincie, petitioners (Pet. 9) cite Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 516 (1992), for this presumption.
But Cipollone concerned “‘smoking and health’ . . . with regard to
cigarette labeling,” id. at 518, a subject traditionally of state rather than
national interest. To the contrary, Napier itself establishes that the BIA
preempts health and safety laws with respect to locomotives and their
parts — historically a federal concern. The states therein defended their
laws on the ground that they sought to “prevent sickness and disease.”
Id., 272 U.S. at 612. But this Court held they were preempted “however
commendable or however different their purpose.” Jd. at 611-13. In
other words, because locomotive regulation is historically a federal field,
no presumption against preemption exists merely because petitioners
claim personal injury. See, e.g., Buckman v. Plaintiffs’ Legal Committee,
53) U.S. 341, 347-48 (2001) (no presumption against preemption of
personal injury ¢!sim said to sten: 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.’”)
(citations omitted).

14

regulation. This regime — enforced by [the Federal Employers’
Liability Act, 45 U.S.C. § 51 et seq. (FELA)] and the threat of
heavy civil penalties — preempts every state effort to establish
independent standards for the design, construction and material
of locomotives.”).

Finally, Lorincie relied in substantial part on Viad Corp v.
Superior Court, 64 Cal. Rptr. 2d 136 (Ct. App. 1997), which
was thereafter expressly 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.

Ill. In re West Virginia Asbestos Litigation Does Not Conflict
With Decisions of This Court

Petitioners contend (Pet. 3-8) that the West Virginia
Supreme Court’s decision upon which the Kanawha Circuit
Court relied in granting summary judgment “directly conflicts”
with this Court’s decisions in two respects: first, as to the scope
of SAA and BIA preemption under Texas & Pacific R. Co. v.
Rigsby, 241 U.S. 33 (1916), Moore v. Chesapeake & Ohio Ry.
Co., 291 U.S. 205 (1934), and Gilvary v. Cuyahoga Valley Ry.
Co., 292 U.S. 57 (1934), and second, as to the nature of federal
preemption generally under Silkwood v. Kerr-McGee Corp., 464
U.S. 238 (1984), and English v. General Electric Co., 496 U.S.
72 (1990).

Petitioners begin their first argument by wrongly conflating
the SAA and the BIA — “Any analysis regarding the scope of
the federal preemption under the LBIA must necessarily begin

15

with a discussion of the history of [the SAA]” (Pet. 4); “Taken
as a whole, [this Court’s] decisions in Napier, Moore, and
Gilvary clearly define the scope of preemption under the LBIA
and SAA” (Pet. 6) — and then undertaking an analysis of the
SAA under Rigsby, Moore and Gilvary and erroneously
concluding that the BIA does not preempt their claims. The
purported logic of petitioners’ argument is that: (1) although
the BIA and SAA must be read in pari materia with FELA, the
SAA was enacted first, before the BIA and FELA"; (2) the SAA
prescribed the duty or standard of care in the field of railroad
safety but did not set forth rules governing the enforcement of
any rights, leaving common-law actions intact; (3) Gilvary,
decided after Napier, held that the SAA did not preempt state
workers’ compensation laws; (4) ergo, the scope of preemption
under the SAA and, somehow, under the BIA “‘is limited to the
establishment of standards, and does not foreclose actions . . .
by railroaders and passengers . . . to the extent [such actions] do
not seek to impose a standard different from, or which in any
manner conflicts with, the standards imposed by Congress
through the LBIA and the SAA.” Pet. 6.

To the contrary, the language of Gilvary clearly shows that
this Court’s citation of Napier was intended to contrast the
SAA and the BIA in effect in 1911 from the BIA as amended in

2 The BIA and SAA are considered amendments to the FELA.
Urie v. Thompson, 337 U.S. 163, 189 (1949) (“the [SAA], together
with the [BIA] are substantively if not in form amendments to the
[FELA]. They dispense, for the purposes of employees’ suits, with the
necessity of proving that violations of the safety statutes constitute
negligence; and making proof of such violations is effective to show
negligence as a matter of law. Thus taken, as has been the consistent
practice, the [BIA] and [SAA] cannot be regarded as statutes wholly
separate from and independent of the [FELA]. They are rather
supplemental to it, having the purpose end effect of facilitating employee
recovery, not of restricting such recovery or making it impossibie.”).

16

1924 and construed in Napier. What the Court stated in Gilvary
was this:

The power conferred upon the Congress is such that
when exerted it excludes and supersedes state
legislation in respect of the same matter. But
Congress may so circumscribe its regulation as to
leave a part of the subject open to state action.
Atlantic Coast Line v. Georgia, 234 U.S. 280 [1914].
... Cf. Napier v. Atlantic Coast Line. .. . The purpose
exclusively to regulate need not be specifically
declared. New York Central R.R. Co. v. Winfield, 244
U.S. 147 [1917]. . . . But ordinarily such intention
will not be implied unless, when fairly interpreted,
the federal measure is plainly inconsistent with state
regulation of the same matter. //linois Cent. R.R. Co.
v. Public Utilities Comm., 245 U.S. 493 [1918].

Gilvary, 292 U.S. at 60 (emphasis added).

The comparison the Court invites in Gilvary between
Atlantic Coast Line R. Co. v. Georgia, from 1914, and Napier,
from 1926, shows that what the Court was driving at in Gilvary
is entirely different from what petitioners herein urge the case
means. The 1914 case concerned lights in a locomotive, and the
Court held that the SAA and the BIA as then in effect included
no explicit regulation of such lights, so the states were free to
adopt their own. But the BIA was thereafter amended, and here
is what this Court had to say on the issue in Napier:

Does the legislation of Congress manifest the
intention to occupy the entire field of regulating
locomotive equipment? Obviously it did not do so
by the Safety Appliance Act, since its requirements
are specific. It did not do so by the original Boiler
Inspection Act, since its provisions were limited to

17

the boiler. Atlantic Coast Line R. Co. v. Georgia.
... But the power delegated to the Commission by
the Boiler Inspection Act as amended is a general
one. It extends to the design, the construction, and
the material of every part of the locomotive and
tender and of all appurtenances.

Napier, 272 U.S. at 611 (emphasis added). Obviously, then, just
as this Court in Napier contrasted the rule applicable to A//antic
Coast Line R. Co. v. Georgia with that applicable to Napier, so
did the Court in Gilvary. In fact, the language of Gilvary citing
Napier stands for exactly the opposite proposition from that for
which petitioners cite it.

Indeed, if petitioners’ thesis were true, and over 80 years of
precedent had erroneously interpreted the scope of preemption
under the BIA, this Court surely would not have declined the
opportunity to correct that error by denying certiorari five times
in the past nine years. Instead, this Court has implicitly, and
repeatedly, reconfirmed the correctness of over two dozen
federal and state appellate court decisions applying Napier and
finding that the BIA preempts state common-law tort claims.

Petitioners’ reasoning 1s not only incorrect, it is irrelevant.
This is a BIA case, not an SAA case. The SAA grants federal
regulatory authority over specific parts of locomotive railcars
such as automatic couplers, hand brakes, sill steps, ladders, grab
irons, handholds, and running boards”; the BIA, however, grants
authority over the entire locomotive. Because the BIA preempts
petitioners’ claims (see pp. 6-12, supra), the SAA is beside the
point, as the West Virginia Supreme Court of Appeals — and
petitioners themselves, in their application for rehearing (see
p. 3 and footnote 5, supra) — properly concluded.

'3 The SAA is now codified at 49 U.S.C. §§ 20301-20306 (1994).

18

Petitioners’ second argument (Pet. 6-9), pursuant to
Silkwood and English, likewise fails. Far from being
“remarkably analogous to the situation which is currently before
this Court” (Pet. 7), Silkwood found no congressional intent to
preclude an award of punitive damages under the Atomic Energy
Act in light of the overall statutory scheme. /d., 464 U.S. at
250-55. By contrast, Napier long ago established that “Congress
indeed manifested the intention to ‘occupy the entire field of
regulating locomotive equipment.’” Darby, 102 Ohio St. 3d at
418; Scheiding, 22 Cal. 4" at 481. Petitioners reject this clear
distinction and instead maintain that “a court must still scrutinize
the individual nature of the claims at issue to determine whether
or not they frustrate the federal objective and fall within the
preempted field.” Pet. 7. However, “[i]f Congress evidences an
intent to occupy a given field, any state law falling within that
field is preempted.” Si/kwood, 464 U.S. at 248. Thus, Congress’s
relevant “intent” in occupying the field is “to exclude state
regulation” from the field, so any state law in the field, including
petitioners’ common-law claims, necessarily “frustrate[s] the
federal objective” and conflicts with that intent, and is therefore
preempted. English, 496 U.S. at 79-80 n.5.'4

The California Supreme Court explained it best:

[Unlike the situation in Silkwood, the field occupied
by the BIA must necessarily extend to state law tort

'4 See also Cipollone, 505 U.S. at 521 (quoting Garmon, 359 U.S.
at 246-47). This Court has repeatedly held since English that ordinary
preemption principles apply to common-law damage actions. Geier v.
American Honda Motor Co., 529 U.S. 861, 868-69, 874 (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, 531
U.S. at 352 (common-law claim for personal injuries preempted;
“ordinary” preemption principles applied).

19

recovery. That is, the BIA cannot remove “the design,
the construction, and the material of every part of
the locomotive and tender and of all appurtenances”
from the purview of state regulation without
concomitantly precluding tort actions premised on
a defect in such design, construction, or material.
Any other result would place regulation of these in
the hands of state juries, thereby constraining the
Secretary of Transportation’s regulatory authority
and undermining the goal of uniformity.

Scheiding, 22 Cal. 4" at 480.
IV. Petitioners Have a Potent Remedy Under FELA

Petitioners’ contention (Pet. 14-15) that preemption of their
state tort claims “ignores a number of factual scenarios in which
a plaintiff will not have any other avenue of recovery available
to him” is not an issue in this case. Petitioners are all current or
former railroad employees, and so eligible to bring FELA claims
against their former employers. See /n re West Virginia Asbestos
Litigation, 215 W. Va. at 43 n.2 (“the arguments of counsel lead
us to believe . . . that all the plaintiffs have a remedy against the
railroads under the Federal Employers’ Liability Act. . .”). “This
remedy is strong 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.

In any event, petitioners’ argument 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

20

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)."°

As to petitioners’ other contention (Pet. 15-16), regarding
contribution and indemnification claims by common carriers,
Norfolk & Western Ry. Co. v. Ayers, supra, provides no support
for petitioners’ position that railroad workers should be able to
pursue direct actions against locomotive manufacturers for
“LBIA liability.” Indeed, this Court unequivocally demonstrated
the lack of need for such a remedy, and the rationale behind the
absence thereof, by reiterating in Ayers that “the FELA does
not authorize apportionment of damages between railroad and
nonrailroad causes.” Id., 538 U.S. at 159-60. That is to say,
FELA defendant railroads are 100 percent liable to their
employees, although the railroads, in turn, “may bring

'S Thus, in Forrester, 255 F.3d at 1209-10, 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, 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.” Jd. Accordingly, even as against railroads, all common-law
claims within the preempted field are barred by the BIA; and only
railroad workers can obtain BIA relief under FELA. There is therefore
nothing particularly remarkable about the determination that, because
of BIA ficld 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.

21

indemnification and contribution actions against third parties.
...” Id. at 162. This is a clear statement that, pursuant to the
FELA statutory scheme, railroad employees are required to seek
their damages from their railroad employers.'®

V. Decisions by the Seventh Circuit Court of Appeals and
the Minnesota Supreme Court Do Not Undercut the
Avalanche of Authority Foreclosing Petitioners’ State
Tort Claims

Petitioners (Pet. 18-19) cite two BIA cases — Adkins v,
Illinois Central R. Co., 326 F.3d 828 (7" Cir. 2003), and Engvall
v. Soo Line R. Co., 632 N.W.2d 560 (Minn. 2001) — which they
argue are in “direct conflict” with the West Virginia Supreme
Court. Adkins, however, is irrelevant, and Engvall, although
wrongly decided, actually bars petitioners’ state-law claims.

Adkins appears to have conflated field preemption, which
is a defense that can be raised whether the case is pending in
federal or state court, with complete preemption, which is a
doctrine governing the removal of cases from state to federal
court. The only issue in Adkins was whether the action, brought
under the BIA through FELA, was properly removed on the
ground that Congress “clearly intended completely to replace
state law with federal law and create a federal forum” at the

'© Ayers holds both that the railroad employee has rights only
against his employer the railroad and that the railroad may bring
indemnification and contribution actions against third parties (such as
manufacturers) only where such a right is provided under an “otherwise
applicable state or federal law” (emphasis added). /d. This language
begs the question before the Court. Inasmuch as BIA field preemption
bars all suits against manufacturers relating to locomotive equipment,
parts, and materials, perforce no law permitting indemnification or
contribution is “otherwise applicable.” Accordingly, Ayers certainly gives
the injured employee no right of action against the manufacturer in
such a case.

. on

same time. Jd. at 835, quoting Vorhees v. Naper Aero Club, Inc.,
272 F.3d 398, 403 (7" Cir. 2001). Inasmuch as it is plain that a
BIA claim can be brought only through FELA, under which
there is concurrent federal and state-court subject-matter
jurisdiction, the Seventh Circuit’s decision in Adkins cannot
fairly be understood as undercutting Napier or any of the other
federal or state appellate decisions — none of which the Seventh
Circuit discusses or even cites — that have consistently upheld
the defense of BIA field preemption.

Indeed, unlike Adkins, Vorhees — written by the same circuit
judge — clearly sets forth the difference between “complete”
and other forms of preemption: “[T]he fact that a federal statute
creates a defense to a state law claim does not necessarily mean
that “Congress has, by statute, taken the subject away from state
tribunals and given it to federal courts.’ . . . The question is
whether, in enacting the Federal Aviation Act, Congress clearly
intended completely to replace state law with federal law and
create a federal forum, or, more likely, if it only intended to
provide a federal defense to the application of state law.”
(Citations omitted.) Jd. at 403. As Wnght, Miller and Cooper
explains, the “complete-preemption doctrine, which has been
invoked in a significant — and ever-increasing — number of cases
and contexts,” has nothing to do with “the defense of federal
preemption” as such but instead concerns the “removal t:. federal
court” of “a narrow class of claims,” even if framed by a “well-
pleaded complaint” as “based solely on state law.” 14B Wright,
Miller and Cooper, Federal Practice and Procedure § 3722.1
(3 ed.), “Cases Based on the Existence of a Federal Question:
Complete Preemption.” The rule of complete preemption — and
thus the Adkins decision — is irrelevant to the case at bar.

Likewise unhelpful to petitioners, Engvall actually agrees
with all of the other federal and state cases holding “that the
field preempted by the LIA includes all state law respecting the

23

design, construction, or material of locomotives” and that
“claims seeking to impose a state law standard of care on a
manufacturer (or a railroad) are preempted” by the BIA. /d. at
569-71. But then Engvall, sidestepping field preemption,
postulates the existence of a right of action under state common
law for violating a federal standard of care under the BIA."
Among other errors, Engvall fails to consider that there is no
basis in law for asserting a private right of action against a
manufacturer — in that case, General Motors — for violating a
BIA standard. Both the outcome and the reasoning of Engvall
were expressly rejected in Roth, supra, as well as in Union
Pacific R. Co. v. Motive Equip., Inc., 714 N.W.2d 232, 236 (Ct.
App. Wis. 2006), and Bonner v. Union Pacific R. Co., No. CV03-
134-S, 2005 WL 1593635, at *9-10 (D. Ida. July 6, 2005)."*

In any event, Engvall does not assist petitioners in their
assertion that asbestos tort claims can proceed against Viad under
the BIA’s federal standard of care. in Engvall, the Minnesota
Supreme Court, construing its own holding in Mahutga v.
Minneapolis, St. Paul & Sault Ste. Marie Ry., 182 Minn. 362
(1931), held that “when the FRA has found a particular design
of a part or appurtenance to be safe to operate as required by the
LIA, a jury cannot find otherwise.” Engvall, 632 N.W.2d at 567.
That 1s exactly the case here, where the FRA’s September 1996

"” Petitioners’ Engvail argument in this Court, that they might have
a claim based on violation of the BIA itself, was neither properly raised
nor passed on below. See Rule 14.1(g)(i).

'® That Ayers cites Engvaill in a footnote (Pet. 15-16) is of no
moment. The reference, Ayers, 538 U.S. at 162 n.21, is merely a string
citation collecting cases mentioned in an A.L.R.3d article and
supplement — also cited in the footnote — authorizing separate suits for
contribution by railroad FELA defendants. The mere inclusion of Engvall
in this string cite cannot reasonably be read as this Court’s imprimatur
for the correctness of the Minnesota Supreme Court’s holding under
the BIA.

24

Report to Congress, mandated by a 1992 federal statute'’, found
unequivocally that no asbestos regulations should be prescribed
“to improve the safety and working conditions of locomotive
cabs” because the presence of asbestos in older locomotives
still on line posed no safety hazard to humans or the
environment. Report to Congress, Locomotive Crashworthiness
and Cab Working Conditions at 10-1, 10-12, 12-9. Respondent’s
Appendix D, page Ila. In the face of this FRA “on-point”
determination that “locomotive components” containing
asbestos are “safe to operate as required by the LIA,” “a jury
cannot find otherwise.” Engvall, 632 N.W.2d at 567. For “a
jury cannot be permitted to substitute its judgment in lieu of the
judgment of the Commission, upon whom the law places the
responsibility for such determination.” Mahutga, 182 Minn. at
366. Accordingly, even if petitioners were correct in their general
contention that state tort claims can be brought using BIA
standards of care, such an approach would be barred insofar as
asbestos in locomotives is concerned.

VI. The BIA Applies to Locomotives Whether They Are
“On Line” or “Off Line”

Petitioners argue (Pet. 16-18) that the BIA is inapplicable
because they allegedly were exposed to asbestos-containing
products in connection with locomotives that were “off line.”
This proposition confuses two very different concepts under
the BIA; the first of these is absolute liability, the second is
field preemption. The decisions petitioners cite — all of which
discuss only the first issue — have no bearing on the second.
What these cases hold is that, under FELA, injuries from
locomotives not “in use” are not subject to the BIA’s absolute
liability standard. But this concept has absolutely nothing to do
with the question of whether, under the BIA, state common-

'9 See Rail Safety Enforcement and Review Act of 1992, Pub. L.
No. 103-365, § 10, 106 Stat. 972 (1992).

"23

law tort law is preempted and, for railroad workers, replaced by
FELA.

Petitioners’ argument is wrong on at least five counts:

(i) The federal field is defined not by where the regulation is
applied but by what is regulated — the physical “object” of it.
Napier, 272 U.S. at 611-13. The physical object of petitioners’
claimed common-law rule is the locomotive and the design,
construction, and material of its parts. Therefore, state regulation
is preempted. /d.

(ii) Petitioners’ premise is that a state can regulate a
locomotive’s design, construction, parts, or materials when the
locomotive is being repaired off line, but not when it is in
operation on line. That argument is metaphysical. A locomotive’s
design, parts, construction, and materials are the same on line
or off.” Indeed, the job of off-line roundhouses is to put the
locomotive and its on-line parts in condition to operate on line.
Perhaps petitioners’ thesis is that railroads must replace federally
lawful on-line parts with state-lawful off-line parts while the
parts are being repaired, and then replace the state-lawful off-
line parts with the federally sanctioned on-line parts after the
parts are repaired. Such a scheme is obviously utterly
unworkable.

(iii) Any regulation of locomotive parts necessarily applies to
the manufacturer upon delivery of the locomotive; “once they
sell the train, it’s out of their hands.” Law, 114 F.3d at 912 n.3.
State regulation of locomotive parts, whether applicable on line
or off, would thus require the manufacturer to deliver — and,

0 See Seaman, 184 Misc. 2d at 607 (holding “irrelevant whether
the plaintiff was exposed to asbestos from locomotives in use or ‘off-
line,’ because a locomotive’s design, construction, parts and materials,
which are regulated by the BIA, are the same whether or not the
locomotive is in use”).

26

accordingly, the railroad to buy — a locomotive meeting the state
regulation. That is exactly what preemption of state law forbids.
Cf. Law, 114 F.3d at 910-11; Carrillo v. ACF Ind., Inc., 20 Cal.
4" 1158, 1168-69 (1999); Taylor AG Ind. v. Pure-Gro, 54 F.3d
_ 555, 562 (9" Cir. 1995) (state regulation could not regulate
indirectly what it was preempted from regulating directly).

(iv) Petitioners’ reasoning that the BIA applies to parts on line,
but has nothing to do with the inspection and repair of them off
line, is a non sequitur, indeed impossible. A locomotive and its
parts could not meet federal standards on line if they were not
inspected and repaired to be in compliance with them off line.
Moreover, the FRA in fact regulates numerous off-line activities,
including inspection, testing, maintenance, and repair; after all,
the law is called an “Inspection Act.” Indeed, the BIA commands
that a locomotive not inspected, tested, and repaired while off
line cannot be used at all on line. 49 U.S.C. § 20701(2).

(v) Petitioners’ on-line cases are, finally, beside the point. None
has anything to do with preemption, products liability, or even
locomotive design. All involve FELA suits against railroads
essentially alleging breach of the duty properly to maintain
locomotives and their parts, and the issue is “at what point the
railway becomes absolutely liable for injuries caused by
defective equipment under the Act.” Angell v. Chesapeake &
Ohio Ry. Co., 618 F.2d 260, 262 (4" Cir. 1980). These cases
simply hold that the railroad’s absolute duty to maintain under
the BIA applies through FELA to the locomotive’s operation
on line, but not when it is in repair or at rest off line, for the
very good reason that a locomotive while off line (perhaps for
months) need not be in condition to operate on line. See, e.g.,
Southern Ry. Co. v. Lunsford, 297 U.S. 398 (1936) (rejecting
plaintiff's claim that railroad violated BIA by failing properly
to maintain experimental device not “part” or “appurtenance”
of locomotive); Phillips v. CSX Transp., Inc., 190 F.3d 285 (4"

27

Cir. 1999) (FELA/SAA claims dismissed; train not “in use” at
time of injury); Deans v. CSX Transp., Inc., 152 F.3d 326 (4"
Cir. 1998) (SAA claim reinstated because train “in use” when
plaintiff released hand brake; FELA claim dismissed); Varney
v. Norfolk & Western Ry. Co., 899 F. Supp. 280 (S.D.W. Va.
1995) (detached radio not “part” or “appurtenance” of
locomotive; BIA therefore inapplicab:. to plaintiff's claims);
Trinidad v. Southern Pacific Transp. Co., 949 F.2d 187 (5" Cir.
1991) (SAA claim dismissed; brake provisions of SAA do not
apply to trains during pre-departure inspection); Pinkham v.
Maine Central R. Co., 874 F.2d 875 (1* Cir. 1989) (affirming
directed verdict in favor of railroad on BIA claim; locomotive
not “in use” at time of injury); Steer v. Burlington Northern,
Inc., 720 F.2d 975 (8" Cir. 1983) (same); Angell, supra (verdict
in favor of plaintiff on FELA/BIA claims affirmed where train
“in use” because engine had passed inspection and been
“okayed” for service); Estes v. Southern Pacific Transp. Co.,
598 F.2d 1195 (10" Cir. 1979) (affirming favorable FELA verdict
and dismissal of BIA claim; locomotive not “in use” at time of
injury).

In sum, petitioners’ notion that states may regulate the
design of locomotive parts off line would require railroads to
meet conflicting state standards off and on line; or — assuming
no conflict — either to meet the most stringent state regulation
on and off line or not to repair locomotives needing repair in
States whose most stringent off-line regulations the locomotive
does not meet. Requiring locomotives to “adhere to the standard
set by the most stringent state” would undermine “Congress’s
goal of uniform federal railroad regulation.” Carrillo, 2) Cal.
4" at 1169 (citations omitted); Oglesby, 180 F.3d at 461.
Deterring railroads from repairing locomotives in any state
would make no sense at all, indeed would flatly violate
Congress’s mandate that locomotives be maintained and

28

promptly repaired wherever they go.”! That would stand as an
obstacle to the “accomplishment and execution of the full
purposes and objectives of Congress,” and accordingly be
preempted on that ground as well. /nt’] Paper Co. v. Ouellette,
479 U.S. 481, 491-92 (1987).

CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted,

DANIEL MARKEWICH
Counsel of Record
ELLEN MARGOLIS
Mounp Cotton WOLLAN
& GREENGRASS

One Battery Park Plaza
New York, NY 10004
(212) 804-4200

Counsel for Respondent
Viad Corp

21 The BIA mandates repair at the first facility on the route if a
locomotive falls out of compliance; otherwise, the locomotive cannot
be used to haul freight. 49 C.F.R. § 229.9(a), (b)(2). A state is preempted
from imposing additional requirements as the price of federally -required
maintenance. See Xerox Corp. v. County of Harris, Texas, 459 U.S.
145, 150-54 (1982) (state tax preempted because it would financially
penalize acts federal law sought to foster); Nash v. Florida Ind. Comm'n,
389 U.S. 235, 240-41 (1967) (state law preempted because it discouraged
act congressional policy sought to leave uninhibited; state cannot “retard,
impede, burden or in any manner contro] the operations of the
constitutional laws enacted by Congress”) (citation omitted).

APPENDIX

la

APPEN} A — APPELLEES’ PETITION FOR
REHEAn«iNG IN THE SUPREME COURT OF
APPEALS OF WEST VIRGINIA

IN THE SUPREME COURT OF APPEALS
OF WEST VIRGINIA

IN RE: WEST VIRGINIA ASBESTOS LITIGATION
CIVIL ACTION NO. 02-C-9004
KANAWHA COUNTY CIRCUIT COURT

CASE NO.: 31237
APPELLEES’ PETITION FOR REHEARING
[Tables Intentionally Omitted]
I. INTRODUCTION

These cases involve the claims of thousands of railroad
employees against several manufacturers of railroad car and/
or locomotive components for asbestos related injuries. Two
of the appellants, Vapor and Viad (or their predecessors)
manufactured locomotives and/or locomotive components
that contained asbestos. The other two appellants, Railroad
Friction Products Corporation (RRFPC) and American
Standard, Inc.(ASI) manufactured and supplied rail car and
locomotive brakes which at certain times in the past contained
asbestos.

Appellant Vapor moved for summary judgment on the
claims below solely on the basis of the Locomotive Boiler
Inspection Act (LBIA), 49 U.S.C. §§ 20701, et seg. as that

2a
Appendix A

act is germane only to locomotives. Appellants RRFPC and
ASI, on the other hand, moved for summary judgment on
the claims below on the basis of both the LBIA and the Safety
Appliance Act (SAA), 49 U.S.C. §§ 20301, ef seg. as those
companies made or distributed a product that was used both
on locomotives and rail cars.

* * *

Il. ARGUMENT IN SUPPORT OF PETITION.

A. The First Certified Question Should Have Been
Answered, And the Answer Should Have Been
in the Negative.

As indicated above, this Court determined that answering
the question with regards to the LBIA in the affirmative that
it was unnecessary to answer the questions with regards to
the SAA and the FRSA, further holding that “[b]ecause we
hold that this statute [the LBIA] preempts the plaintiffs’
claims against the defendant, we need not reach the other
questions presented to us, and decline to answer them.”
In re: West Virginia Asbestos Litigation, at 12.

While the above quoted statement is true with regards
to the LBIA appellants, Vapor and Viad it is not true with
regards to appellants RRFPC and ASI. As indicated, the
appellees have filed claims against RRFPC and ASI
stemming from exposure to asbestos containing brakes used
on both locomotives and rail cars. In answering the third
question in the affirmative this Court effectively dismissed

3a

Appendix A

claims stemming from exposure to products used on
locomotives. However, this Court’s decision on the third
question in no way impacted claims against RRFPC and ASI
stemming from exposure to products used on rail cars, nor
could it, as the LBIA applies only to locomotives.

8. 8

4a

APPENDIX B — ORDER OF THE SUPREME COURT

OF APPEALS FOR THE STATE OF WEST VIRGINIA

DENYING PETITION FOR REHEARING DATED
JANUARY 15, 2004

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals
continued and held at Charleston, Kanawha County, on the
15" day of January 2004, the following order was made and
entered:

In Re: West Virginia Asbestos Litigation

Civil Action No. 02-C-9004
Kanawha County Circuit Court

No. 31237

The Court, having maturely considered the petition for
rehearing filed by the appellees, plaintiffs below, by Robert
F. Daley, Mark T. Coulter, D. Aaron Rihn, Peirce Raimond
& Coulter; and James F. Humphreys and David Cecil, their
attorneys, on the 31st day of December, 2003, is of opinion
to and doth hereby refuse said petition for rehearing. Justice
McGraw and Judge Stone would grant.

A True Copy

Attest: s/ Rory L. Perry II
Clerk, Supreme Court of Appeals

5a

APPENDIX C — EXCERPTS FROM DEPARTMENT
OF TRANSPORTATION POLICY STATEMENT

DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration

[49 CFR Part 221]
[Docket No. ROS-1, Notice 3]

RAILROAD, OCCUPATIONAL SAFETY AND
HEALTH STANDARDS; TERMINATION

Policy Statement

* * *

Policy Concerning Exercise of Statutory Authority

A. Introduction

.... Therefore, it is essential that the safety of railroad
operations be the responsibility of a single agency and that
that agency undertake new initiatives in an informed and
deliberate fashion, weighing the impact of particular
proposals on long-standing industry practices and pre-
existing regulations.

6a

Appendix C

B. Exercise of FRA Jurisdiction Over
Railroad Operations

* * *

.... While it is expected that additional regulatory initiatives
may be undertaken, as neccssary, in each of the major
regulatory fields, it 1s the judgment of the agency that
piecemeal regulation of individual hazards in any of the three
regulatory fields by any other agency of government would
be disruptive and contrary to the public interest.

a oe
Issued in Washington, D.C. on March 10, 1978.

John M. Sullivan,
Administrator.

Ta

APPENDIX D — REPORT TO CONGRESS OF
THE U.S. DEPARTMENT OF TRANSPORTATION
DATED SEPTEMBER 1996
U.S. Department of Transportation

Federal Railroad 4 dministration

LOCOMOTIVE CRASHWORTHINESS AND
CAB WORKING CONDITIONS

REPORT TO CONGRESS
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.

8a

Appendix D

The two 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.

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 rule applies to railroad
operating employees.

14. Occupational Hazards, Sept 1994, OSHA: Final Asbestos
Rule Covers 4 Million Workers.

9a

Appendix D

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:

© 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

15. Mr. R. Shults, Manager-Product & Environment Impact,
General Electric Company (GE).

10a

Appendix D

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 specifications 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 locomotives. In the 1970's,
EMD began to curtail the use of asbestos in
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.

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

lla

Appendix D

Conclusions

FRA has reviewed literature outlining the known health
and safety effects of asbestos exposure, and contacted
representatives from both primary !ecemotive 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
amounis of asbestos, there is no evidence that the presence
of asbesios poses a problem to humans or the environment.
The use of asvestos 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1054%3A4. Public record. Not legal advice.