Estate of Sandra Brust and Philip Brust, Etc. v. Acf

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3431-13T4

ESTATE OF SANDRA BRUST and PHILIP
BRUST, individually and as Executor
and Executor ad Prosequendum of the
Estate of Sandra Brust,

Plaintiffs-Appellants, APPROVED FOR PUBLICATION

v. November 19, 2015

ACF INDUSTRIES, LLC, f/k/a APPELLATE DIVISION
American Car & Foundry Co.;
AMSTED RAIL GROUP, individually
and as successor to and d/b/a
Griffin Wheel Company;
BOMBARDIER TRANSPORTATION
(HOLDINGS) USA INC.; CBS
CORPORATION, a Delaware
corporation, f/k/a Viacom, Inc.,
successor by merger to CBS
Corporation, a Pennsylvania
corporation, f/k/a Westinghouse
Electric Corp.; CARRIER
CORPORATION; CERTAINTEED CORP.,
individually and as successor-
in-interest to Gustin Bacon;
EATON CORPORATION, as successor-
in-interest to Eaton Electrical,
Inc., and Cutler-Hammer, Inc.;
FOSTER WHEELER ENERGY CORPORATION;
GENERAL ELECTRIC COMPANY; GE LEASING,
individually and as successor to ITEL
Leasing, The Pullman Leasing Company
and The Pullman Company; GRIMES
AEROSPACE CORPORATION, individually
and as successor to FL Aerospace
Corporation and Midland-Ross Corp.;
KAWASAKI RAIL CAR INC.; NEW YORK
AIR BRAKE CORPORATION; PULLMAN
TECHNOLOGY INC., individually and
as successor to The Pullman Company;
ROCKWELL AUTOMATION INC., as
successor by merger to Allen-Bradley,
Inc.; SIEMENS ENERGY & AUTOMATION,
INC., f/k/a I-T-E Circuit Breakers;
SQUARE-D COMPANY; THYSSENKRUPP BUDD CO.,
f/k/a and as successor to The Budd
Company; TRANE US, INC., f/k/a
American Standard, Inc., f/k/a
Westinghouse Air Brake Company;
TRINITY INDUSTRIES, individually and
as successor to The Pullman
Transportation Company and The Pullman
Company; UNION CARBIDE CORP.; WABTEC
CORPORATION, individually and as
successor in interest to Westinghouse
Air Brake Co. (WABCO) and MotivePower
Industries, Inc.; GOULD ELECTRONICS,
INC., individually and as successor-
in-interest to ITE Circuit Breakers;
OLD ORCHARD INDUSTRIAL CORP.,
individually and as successor-in-
interest to Vapor Corporation; and
AMSTED INDUSTRIES, INC., f/k/a
American Steel Foundries (ASF),

Defendants,

and

DELAWARE RIVER PORT AUTHORITY
(DRPA), individually and d/b/a
Port Authority Transit
Corporation (PATCO); HONEYWELL
INTERNATIONAL, INC., f/k/a
Allied Signal, Inc. as
successor-in-interest to The
Bendix Corporation; PEP BOYS-
MANNY MOE & JACK OF DELAWARE,
INC.; PNEUMO-ABEX, LLC, as
successor-in-interest to Abex
Corporation, f/k/a American Brake
Shoe Company; PORT AUTHORITY TRANSIT
CORPORATION (PATCO); and RAILROAD

2 A-3431-13T4
FRICTION PRODUCTS CORPORATION,
individually and d/b/a Cobra,

Defendants-Respondents.

Argued October 7, 2015 – Decided November 19, 2015

Before Judges Alvarez, Ostrer, and Manahan.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Docket No. L-5049-11.

Jeffrey P. Blumstein argued the cause for
appellants (Szaferman, Lakind, Blumstein &
Blader, P.C. and Levy Konigsberg, LLP,
attorneys; Robert E. Lytle, on the briefs).

Christopher R. Gibson argued the cause for
respondent Delaware River Port Authority and
Port Authority Transit Corporation (Archer &
Greiner, attorneys; Mr. Gibson, of counsel
and on the brief; Patrick M. Flynn, on the
brief).

John C. Garde argued the cause for
respondent Honeywell International Inc.,
f/k/a Allied Signal, Inc. as successor-in-
interest to The Bendix Corporation (McCarter
& English, LLP and Gibbons, P.C., attorneys;
Debra M. Perry, Kim M. Catullo, and Ethan D.
Stein, of counsel; Mr. Garde and Jean
Patterson, on the brief).

Walter F. Kawalec, III, argued the cause for
respondent Pep Boys – Manny Moe & Jack of
Delaware, Inc. (Marshall Dennehey Warner
Coleman & Goggin, attorneys; Paul Johnson,
Lisa Only, and Mr. Kawalec, on the brief).

Reagan W. Simpson (Yetter Coleman LLP) of
the Texas bar, admitted pro hac vice, argued
the cause for respondent Pneumo Abex, LLC
(Roy F. Viola, Jr. (Hawkins Parnell
Thackston & Young LLP), and Mr. Simpson,

3 A-3431-13T4
 attorneys; Mr. Viola and Mr. Simpson, on the
brief).

David J. Bird (Reed Smith LLP) of the
Pennsylvania bar, admitted pro hac vice,
argued the cause for respondent Railroad
Friction Products Corporation (Bonner
Kiernan Trebach & Crociata, LLP, attorneys;
Mark A. Lockett, on the brief).

The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

Plaintiffs, the Estate of Sandra Brust and Philip Brust,

appeal from the summary judgment dismissal of their complaint.

Sandra Brust (Brust) was diagnosed with mesothelioma in October

2010, and passed away from the disease while this litigation was

pending. Plaintiffs allege Brust's father John Noga's

employment from 1970 to 1977 as a train operator, yard operator,

and supervisor with defendant Port Authority Transit Corporation

(PATCO) resulted in take-home asbestos exposure leading to her

illness.1

Noga's job duties included the repair and maintenance of

air brake systems on PATCO's multiple unit (MU) locomotives. 2 In

1
By virtue of an interstate compact between New Jersey and
Pennsylvania, defendant Delaware River Port Authority (DRPA)
owns the New Jersey tracks and right-of-way through which PATCO
operates the high speed line between Lindenwold, New Jersey, and
Philadelphia, Pennsylvania.
2
In addition to PATCO and the DRPA, the "railroad defendants"
include Railroad Friction Products Corporation (RFPC), which
(continued)

4 A-3431-13T4
the process, asbestos dust would then be released into the air

and land on his work clothes. Upon returning home, Noga would

play with his children, including Brust, who was born May 23,

1963, before changing or showering.

Additionally, plaintiffs claim Brust's mesothelioma may

have been caused by her exposure to asbestos dust as Noga

replaced automobile brakes on cars he worked on after hours. 3

Between 1963 and 1978, when the family moved to Georgia, Noga

would buy an average of one used car per year, which he would

repair for resale.

From 1970 to 1985, starting at about age seven, Brust would

help her mother wash her father's clothes, including his PATCO

uniform. Brust's expert opined that she developed mesothelioma

as a result of secondary exposure to friable asbestos fibers

through direct contact with her father and while laundering his

asbestos-laden clothes.

(continued)
distributed Cobra brand locomotive air brake shoes as well as
Thyssenkrupp Budd Company (Budd) and Pneumo-Abex, LLC (Abex),
among others. RFPC supplied Budd with locomotive air brakes
manufactured by RFPC; the replacement brake shoes were
manufactured and supplied by Abex. Both incorporate asbestos
into their design.
3
Included in these counts are the automotive defendants: Pep
Boys–Manny Moe and Jack of Delaware, Inc., Honeywell, formerly
known as Allied Signal, Inc., successor-in-interest to The
Bendix Corporation, and Abex as successor-in-interest of Abex
Corporation, formerly known as American Brake Shoe Company.

5 A-3431-13T4
 In deciding the railroad defendants' motion for summary

judgment, Judge Vincent LeBlon concluded that federal

legislation and precedent preempt state tort claims related to

locomotives. He rejected plaintiffs' argument that their claim

was exempt from preemption because PATCO was not regulated by

federal transportation agencies or regulations.

As to the automotive defendants, Judge LeBlon found that

there was no evidence that Brust's contacts with automotive

brake dust were sufficiently frequent, regular, and proximate to

demonstrate causation. Thus, plaintiffs' proofs did not

establish the elements of a prima facie case.

In sum, the judge granted the railroad defendants' motions

for summary judgment as a matter of law. He granted summary

judgment to the automotive defendants because, even when the

facts were viewed in the light most favorable to plaintiffs, no

genuine issue of material fact remained which could expose them

to any liability. We affirm.

I.

Rule 4:46-2(c) provides that summary judgment must be

granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact challenged and that the moving party is

6 A-3431-13T4
entitled to a judgment . . . as a matter of law." The

appropriate inquiry is "whether the evidence presents a

sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail . . . ."

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,

106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

On appeal, we review summary judgment orders de novo,

utilizing the same standards applied by the trial courts. See

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,

374 (2010).

II.

Plaintiffs contend on appeal, as they did before the Law

Division judge, that their state law claims against PATCO, DRPA,

RFPC, and Abex, arising out of the design and manufacture of

asbestos-contaminated locomotive brake shoes, were not preempted

by federal law. The basis for their argument is that PATCO is

an urban rapid transit operation, not a railroad, not subject to

federal railroad safety regulations or to federal law generally.

A.

A brief discussion of the doctrine of preemption is

warranted. It arises from the supremacy clause, which states

that federal law "shall be the supreme Law of the Land; and the

7 A-3431-13T4
Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding." U.S. Const. art. VI, cl. 2.

"Where a state statute conflicts with, or frustrates,

federal law, the former must give way." CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 663, 113 S. Ct. 1732, 1737, 123 L. Ed.

2d 387, 396 (1993). "The ultimate question is always whether

Congress intended to preempt the subject matter of the state

legislation." Chamber of Commerce v. State, 89 N.J. 131, 142

(1982); see also Comm. to Recall Robert Menendez from the Office

of U.S. Senator v. Wells, 204 N.J. 79, 103 (2010) (discussing

federal preemption). "Congress may preempt state common law as

well as state statutory law through federal legislation." Dewey

v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 77 (1990) (citing

Chicago N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,

325-26, 101 S. Ct. 1124, 1134, 67 L. Ed. 2d 258, 270 (1981)).

There are three categories of preemption: 1) express

preemption as contained in the specific language of the federal

law; 2) implied or "field preemption" where Congress has

exclusively occupied the field of regulation; and 3) conflict

preemption where state law conflicts with federal law. Kurns v.

Railroad Friction Products Corp., ___ U.S. ___, 132 S. Ct. 1261,

1265-66, 182 L. Ed. 2d 116, 123 (2012); English v. Gen. Elec.

8 A-3431-13T4
Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 2275, 110 L. Ed. 2d

65, 74 (1990); R.F. v. Abbott Labs., 162 N.J. 596, 618 (2000);

Dewey, supra, 121 N.J. at 77-78.

Field preemption, at issue here, occurs "where the scheme

of federal regulation is so pervasive as to make reasonable the

inference that Congress left no room for the States to

supplement it . . . ." Gonzalez v. Ideal Tile Imp. Co., 184

N.J. 415, 419 (2005) (quoting Gade v. Nat'l Solid Wastes Mgmt.

Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383, 120 L. Ed. 2d

73, 84 (1992)), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042,

163 L. Ed. 2d 857 (2006).

B.

Since 1926, it has been settled that in enacting the

Locomotive Inspection Act (LIA), 49 U.S.C.A. §§ 20701-20703,

Congress intended to occupy the entire field of locomotive

equipment. Congress thereby preempted both state legislation

that would affect the design, construction, and material of

every part of the locomotive and its appurtenances, Napier v.

Atl. Coast Line R.R. Co., 272 U.S. 605, 611, 47 S. Ct. 207, 209,

71 L. Ed. 432, 438 (1926), and state law tort claims for

defective design of locomotive equipment, Kurns, supra, ___ U.S.

at ___, 132 S. Ct. at 1265-66, 182 L. Ed. 2d at 123.

9 A-3431-13T4
 Preemption under the LIA "allows railroad carriers to abide

by a single set of national equipment regulations, instead of

having to meet different standards and, potentially, to change

equipment when a train crosses state lines." Del. & Hudson R.R.

Co. v. Knoedler Mfrs., Inc., 781 F.3d 656, 666 (3d Cir.), cert.

denied, ___ U.S. ___, ___ S. Ct. ___, 193 L. Ed. 2d ___ (2015).

This broad preemptive sweep is necessary to
maintain uniformity of railroad operating
standards across state lines. Locomotives
are designed to travel long distances, with
most railroad routes wending 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."

[Law v. Gen. Motors Corp., 114 F.3d 908, 910
(9th Cir. 1997) (quoting S. Pac. Transp. Co.
v. Pub. Util. Comm'n, 9 F.3d 807, 811 (9th
Cir. 1993)).]

C.

The LIA, originally enacted in 1911 as the "Locomotive

Boiler Inspection Act" (BIA),4 provides that:

4
The BIA was enacted in 1911 when railroads used steam engines
and initially applied only to "boilers and appurtenances
thereto," but in 1915 was amended to "include the entire
locomotive and tender and all parts thereof." Napier, supra,
272 U.S. at 608, 47 S. Ct. at 208, 71 L. Ed. at 437.

10 A-3431-13T4
 A railroad carrier[5] may use or allow to
be used a locomotive or tender on its
railroad line only when the locomotive or
tender and its parts and appurtenances—

(1) are in proper condition and safe to
operate without unnecessary danger of
personal injury;

(2) have been inspected as required under
this chapter . . . and regulations
prescribed by the Secretary of
Transportation under this chapter . . .; and

(3) can withstand every test prescribed by
the Secretary under this chapter . . . .

[49 U.S.C.A. § 20701.]

An interstate railroad carrier has an absolute duty under

the LIA to maintain the parts and appurtenances of its

locomotives in safe and proper condition. Lilly v. Grand Trunk

W. R.R. Co., 317 U.S. 481, 485, 63 S. Ct. 347, 351, 87 L. Ed.

411, 415 (1943). The "prime purpose" of the LIA is "the

protection of railroad employees and perhaps also of passengers

and the public at large . . . from injury due to industrial

accident." Urie v. Thompson, 337 U.S. 163, 191, 69 S. Ct. 1018,

1035, 93 L. Ed. 1282, 1304 (1949).

The Secretary of Transportation (Secretary), pursuant to

the LIA, has the authority to regulate the design and inspection

of all locomotive parts, including air brake systems. The

5
A "railroad carrier" is defined as "a person providing railroad
transportation." 49 U.S.C.A. § 20102(3).

11 A-3431-13T4
Secretary has promulgated highly detailed regulations

establishing air brake system calibration, maintenance, and

testing, 49 C.F.R. § 229.29 (2015), 49 C.F.R. § 238.309 (2015),

and safety and design, 49 C.F.R. §§ 229.46 to 229.59 (2015).

Federal regulations define a locomotive and also define an MU

locomotive. 49 C.F.R. § 229.5 (2015). The federal railroad

safety laws, including the LIA, apply only to "railroads." 49

U.S.C.A. § 20101. The term "railroad" is not defined in the

LIA, but is defined by federal regulation, 49 C.F.R. 229.5

(2014), in accord with the Federal Railroad Safety Act (FRSA),

49 U.S.C.A. §§ 20102 to 20155,6 to exclude "rapid transit

operations within an urban area that are not connected to the

general railroad system of transportation." "Urban rapid

transit operations," such as the high speed line operated by

PATCO, are not defined in the federal railroad safety statutes

or regulations. See Chicago Transit Auth. v. Flohr, 570 F.2d

1305, 1311 (7th Cir. 1977) (Chicago Transit Authority is not a

"railroad" as the term is used in the Railroad Safety Act of

1970 and thus not subject to Federal Railroad Administration

(FRA) "railroad" regulations).

6
FRSA contains a preemption provision, which provides that
"[l]aws, regulations, and orders related to railroad safety
. . . shall be nationally uniform to the extent practicable,"
but allows State law causes of action in limited circumstances.
49 U.S.C.A. § 20106. The LIA does not contain such a provision.

12 A-3431-13T4
 By delegation from the Secretary, the FRA enforces federal

railroad safety statutes, including the LIA. 49 U.S.C.A. §

20702; 49 U.S.C.A. § 20103; 49 C.F.R. 229.1 (2015). The FRA has

jurisdiction over all rail operations except rapid transit

operations in an urban area that are not connected to the

general railroad system of transportation. See 49 U.S.C.A. §

20102(2).

Urban rapid transit operations are not subject to federal

regulations prescribing safety standards for locomotives and its

appurtenances under the LIA, 49 C.F.R. §§ 229.3(b)(2), 229.5

(2015), or other federal safety regulations. See, e.g., 49

C.F.R. § 213.3(b)(3) (2015) (tracks); 49 C.F.R. § 215.5(f)

(2015) (freight cars); 49 C.F.R. § 217.3(b)(2) (2015) (trains);

49 C.F.R. § 218.3(b)(2) (2015) (operating regulations); 49

C.F.R. § 219.5 (drug and alcohol use) (2015); 49 C.F.R. §

220.3(b)(2) (2015) (communication); 49 C.F.R. § 230.2(b)(3)

(2015) (steam locomotives); and 49 C.F.R. § 232.3(c)(4) (2015)

(brake systems for freight trains). The Federal Transit

Administration (FTA), an agency of the United States Department

of Transportation, has jurisdiction, under its rules governing

"rail fixed guideway systems," over rapid transit systems not

otherwise subject to FRA regulation.

13 A-3431-13T4
 Federal law requires a "state to oversee the safety and

security of rail fixed guideway systems through a designated

oversight agency." 49 C.F.R. § 659.1 (2014). A "rail fixed

guideway system" is defined as "any light, heavy, or rapid rail

system" not regulated by the FRA. 49 C.F.R. § 659.5 (2015).

The New Jersey Department of Transportation (NJDOT) is this

state's oversight agency. N.J.A.C. 16:53E-1.1. In fulfilling

this responsibility, the NJDOT has adopted rules, regulations,

and guidelines accomplishing that goal. It is undisputed that

PATCO is an urban rapid transit operation subject in our state

to general oversight by NJDOT.

D.

The question plaintiffs raise is whether the LIA preempts

state law claims arising from locomotive equipment even if the

entity operating the equipment is "not subject to federal

railroad regulations." We answer the question in the

affirmative.

In our view, state law claims for defective design of the

"locomotive equipment," and for failure to warn about its risks,

fall within the field preempted by the LIA as defined in Napier,

supra, 272 U.S. at 611, 47 S. Ct. at 209, 71 L. Ed. at 438. The

preempted field is the subject of locomotive equipment,

regardless of the entity using it. The notion was recently

14 A-3431-13T4
reaffirmed in Kurns, supra, ___ U.S. at ___, 132 S. Ct. at 1265-

66, 182 L. Ed. 2d at 123.

In Napier, the United States Supreme Court found a Georgia

statute that required locomotives to have an automatic fire

door, and a Wisconsin statute that required locomotives to have

a cab curtain, were preempted by the LIA because the statutes

were directed at the "equipment of locomotives." Napier, supra,

272 U.S. at 612, 47 S. Ct. at 210, 71 L. Ed. at 439. The LIA

preempted "the entire field of regulating locomotive equipment,"

and the power delegated to the Interstate Commerce Commission

(ICC), the predecessor to the FRA, extended "to the design, the

construction and the material of every part of the locomotive

and tender and of all appurtenances." Id. at 611, 47 S. Ct. at

209, 71 L. Ed. at 438.

The Court specifically rejected the states' contention that

the scope of the preempted field was to "be determined by the

object sought through the legislation," which was to promote the

health and comfort of railroad engineers, "rather than the

physical elements affected by it." Id. at 612, 47 S. Ct. 209,

71 L. Ed. 439. The federal and state statutes were "directed to

the same subject -- the equipment of locomotives." Ibid. Thus,

because the state laws, "however commendable or however

different their purpose," operated on the same physical object

15 A-3431-13T4
as the LIA, the laws fell in the preempted field. Id. at 613,

47 S. Ct. at 210, 71 L. Ed. at 439.

After the decision in Napier, Congress enacted various

statutes amending the LIA, transferring the ICC's regulatory

authority to the Department of Transportation, enacting the

FRSA, and codifying all federal railroad statutes under Title

49. Congress did not alter the LIA's broad preemptive field.

A number of state courts since have held that the broad

field preempts state tort law claims against manufacturers of

locomotive equipment for injuries sustained by asbestos

exposure. See Wright v. Gen. Elec. Co., 242 S.W.3d 674, 680

(Ky. Ct. App. 2007) (the LIA state common-law tort claims

against locomotive manufacturers of brake shoes and other

equipment are preempted under the LIA); Darby v. A-Best Prods.

Co., 811 N.E.2d 1117, 1125-26 (Ohio 2004) (the LIA preempts

state law tort claims against manufacturers of railroad

locomotives for injuries caused by exposure to asbestos), cert.

denied, 543 U.S. 1146, 125 S. Ct. 1297, 161 L. Ed. 2d 106

(2005); In re W. Va. Asbestos Litig., 592 S.E.2d 818, 824 (W.

Va. 2003) (state law tort claims against manufacturers of parts

or components of railroad locomotives are preempted by federal

law under the LIA).

16 A-3431-13T4
 In 2012, the Court in Kurns reaffirmed Napier. In Kurns

the decedent, George M. Corson, was a former locomotive

repairman. Plaintiffs alleged he developed mesothelioma as a

result of his exposure to asbestos while employed installing

brake shoes on locomotives and stripping insulation from

locomotive boilers. Kurns, supra, ___ U.S. at ___, 132 S. Ct.

at 1264, 182 L. Ed. 2d at 122. The plaintiffs brought

Pennsylvania state law tort claims for defective design and

failure to warn against RFPC, and other manufacturers. Ibid.

Coincidentally, RFPC is a defendant in this case, and the

manufacturer and distributor of Cobra brand locomotive brake

shoes containing asbestos.

In Kurns, the Court reaffirmed the breadth of the preempted

field established in Napier, holding that the plaintiffs' claims

were preempted because they were directed at "the subject of

locomotive equipment." Id. at ___, 132 S. Ct. at 1270, 182 L.

Ed. 2d at 128. The plaintiffs' defective-design claims were

found to fall "within the pre-empted field because they would

impose state-law requirements on a locomotive's physical

makeup." Id. at ___, 132 S. Ct. at 1272, 182 L. Ed. 2d at 130

(Sotomayor, J., concurring in part, dissenting in part). In

other words, the Court in Kurns rejected the plaintiffs' attempt

to redefine the preemptive field established in Napier, which

17 A-3431-13T4
had constituted settled law for eighty-five years. Id. at ___,

132 S. Ct. at 1268-69, 182 L. Ed. 2d at 125-27.

Significant to this appeal, the Court rejected the

plaintiffs' argument that their state law claims against the

manufacturers of locomotive equipment fell outside the LIA's

preemptive field because the manufacturers were not subject to

regulation under the LIA at the time the plaintiff was exposed

to asbestos.7 Id. at ___, 132 S. Ct. at 1268-69, 182 L. Ed. 2d

at 126-27.

The Court described that position as "inconsistent with

Napier," because

Napier defined the field pre-empted by the
LIA on the basis of the physical elements
regulated —— "the equipment of locomotives"
—— not on the basis of the entity directly
subject to regulation. . . . Because
petitioners' claims are directed at the
equipment of locomotives, they fall within
the pre-empted field.

[Id. at ___, 132 S. Ct. at 1269, 182 L. Ed.
2d at 127 (emphasis added).]

The Court went on to state:

Petitioners' proposed rule is also
contrary to common sense. Under

7
The LIA as originally enacted subjected only "common carriers"
to civil penalties, but after the plaintiffs' exposure in Kurns,
it was revised under the "Rail Safety Improvement Act of 1988,"
102 Stat. 624 § 14, later repealed and recodified at 49 U.S.C.A.
§ 21303, to provide that an "act by an individual that causes a
railroad carrier to be in violation is a violation."

18 A-3431-13T4
 petitioners' approach, a State could not
require railroads to equip their locomotives
with parts meeting state-imposed
specifications, but could require
manufacturers of locomotive parts to produce
only parts meeting those state-imposed
specifications. We rejected a similar
approach in an express pre-emption context
in Engine [Manufacturers] Ass'n. v. South
Coast Air Quality Management [District], 541
U.S. 246, 124 S. Ct. 1756, 158 L. Ed. 2d 529
(2004). There, a state entity argued that
its rules prohibiting the purchase or lease
of vehicles that failed to meet stringent
emissions requirements were not pre-empted
by the Clean Air Act, 42 U.S.C. §7543(a),
because the rules in question were aimed at
the purchase of vehicles, rather than their
manufacture or sale. . . . We observed,
however, that "treating sales restrictions
and purchase restrictions differently for
pre-emption purposes would make no sense,"
because the "manufacturer's right to sell
federally approved vehicles is meaningless
in the absence of a purchaser's right to buy
them." Id. at 255, 124 S. Ct. 1756, 158 L.
Ed. 2d 529. Similarly, a railroad's ability
to equip its fleet of locomotives in
compliance with federal standards is
meaningless if manufacturers are not allowed
to produce locomotives and locomotive parts
that meet those standards. Petitioners'
claims thus do not avoid pre-emption simply
because they are aimed at the manufacturers
of locomotives and locomotive parts.

[Ibid.]

Accordingly, the Court concluded that the LIA preempts state

tort claims based on injuries caused by exposure to asbestos

used in locomotive brake shoes even if the manufacturers were

not subject to the LIA regulation. Ibid.

19 A-3431-13T4
 The Court in Kurns also rejected plaintiffs' argument that

their claims did not fall within the preemptive field because

they arose out "of the repair and maintenance of locomotives,"

as opposed to the "use of locomotives on a railroad line." Id.

at ___, 132 S. Ct. at 1267, 182 L. Ed. 2d at 125. The

plaintiffs contended that "the scope of the field pre-empted by

the LIA is coextensive with the scope of the Federal

Government's regulatory authority under the LIA," which did "not

extend to the regulation of hazards arising from the repair or

maintenance of locomotives." Ibid.

Nonetheless, the Court refused to "redefine" the preempted

field:

In Napier, the Court held that Congress, in
enacting the LIA, "manifest[ed] the
intention to occupy the entire field of
regulating locomotive equipment," and the
Court did not distinguish between hazards
arising from repair and maintenance as
opposed to those arising from use on the
line. . . . The pre-empted field as defined
by Napier plainly encompasses the claims at
issue here. Petitioners' common-law claims
for defective design and failure to warn are
aimed at the equipment of locomotives.
Because those claims "are directed to the
same subject" as the LIA, Napier dictates
that they fall within the pre-empted field
. . . .

[Id. at ___, 132 S. Ct. at 1267-68, 182 L.
Ed. 2d at 125-26 (emphasis added).]

20 A-3431-13T4
 Finally, the Court rejected the plaintiffs' argument that

their failure-to-warn claims did not fall within the preempted

field because the basis for liability was the failure to provide

adequate warnings, not the design of the product. Id. at ___,

132 S. Ct. at 1268, 182 L. Ed. 2d at 126.

On this point, the Court said:

A failure-to-warn claim alleges that the
product itself is unlawfully dangerous
unless accompanied by sufficient warnings or
instructions. Restatement (Third) of Torts:
Products Liability §2(c) (1997) (A failure-
to-warn claim alleges that a product is
defective "when the foreseeable risks of
harm posed by the product could have been
reduced or avoided by the provision of
reasonable instructions or warnings by the
seller or other distributor, . . . and the
omission of the instructions or warnings
renders the product not reasonably safe");
see also id., Comment l, at 33 ("Reasonable
designs and instructions or warnings both
play important roles in the production and
distribution of reasonably safe products").
Thus, the "gravamen" of petitioners'
failure-to-warn claims "is still that
[Corson] suffered harmful consequences as a
result of his exposure to asbestos contained
in locomotive parts and appurtenances."
. . . . Because petitioners' failure-to-
warn claims are therefore directed at the
equipment of locomotives, they fall within
the pre-empted field defined by Napier,
supra, 272 U.S. at 612, 47 S. Ct. 207, 71 L.
Ed. 432.

[Id. at ___, 132 S. Ct. at 1268, 182 L. Ed.
2d at 126.]

21 A-3431-13T4
 Here, it is undisputed that PATCO's MU locomotives,

supplied by Budd, were "locomotives" as defined in 49 C.F.R. §

229.5 (2015), which ran on standard gauge track —— the gauge on

which most railroads, including Amtrak, operate. Moreover, it

is undisputed that the "locomotive equipment" at issue —— the

locomotive air brake shoes installed on PATCO locomotives ——

were designed and manufactured as components of a locomotive air

brake system, designed for use on locomotives operated by

railroad carriers subject to regulation under the LIA. See 49

C.F.R. 232.5 (2015) ("Air brake means a combination of devices

operated by compressed air, arranged in a system, and controlled

manually, electrically, electronically, or pneumatically, by

means of which the motion of a railroad car or locomotive is

. . . arrested"). See also Perry v. A.W. Chesterton, Inc., 985

F. Supp. 2d 669, 675-76 (E.D. Pa. 2013) (the plaintiff's state

law claims pertaining to exposure to asbestos-containing brake

shoes located on railcars are preempted under the LIA). In

fact, the locomotive equipment was physically indistinguishable

from the equipment in Kurns —— that is, Cobra brand locomotive

air brake shoes manufactured by RFPC and designed for the air

brake system of a locomotive capable of travelling on a standard

gauge track.

22 A-3431-13T4
 Because plaintiffs' negligence and products liability

claims are directed at "the subject of locomotive equipment,"

they are therefore preempted under the sweeping field preemption

adopted in Napier, and reaffirmed in Kurns. Plaintiffs' claims

are preempted as state actions that would affect "the design,

the construction, and the material" of locomotives, including

claims for failure-to-warn. Kurns, supra, ___ U.S. at ___, 132

S. Ct. at 1267, 182 L. Ed. 2d at 124.

That the locomotive equipment operated by PATCO was a rapid

transit operation not subject to the LIA regulation does not

undercut the analysis. Kurns defines the preempted field as the

locomotive equipment, not by the entity that purchases or uses

the equipment. Id. at ___, 132 S. Ct. at 1267-68, 182 L. Ed. 2d

at 125. In Kurns, the preempted field was not coextensive with

the scope of the federal government's regulatory authority under

the LIA. But that fact was found to be irrelevant to the

application of the preemption doctrine. Id. at ___, 132 S. Ct.

at 1267-69, 182 L. Ed. 2d at 125-27.

This broad field of preemption ensures uniformity of

railroad equipment, an important safety and practical

consideration given the national distribution of products

manufactured for use in the industry. Focusing on equipment, as

was the case in Napier and Kurns, ensures that all locomotive

23 A-3431-13T4
equipment, regardless of where or by which entity it is used,

meets federal safety standards. Creating an exception based on

the classification of the operation at the time of the injury

would conflict with the conclusions in Kurns, would threaten

uniformity, and would complicate the straightforward equipment

preemption that has remained unchanged since 1926. We therefore

reject plaintiffs' argument that because PATCO's operations were

not subject to federal regulation, their state court claims

should survive.

Motions for summary judgment should be granted where, as a

matter of law, the moving party is clearly entitled to judgment.

In this case the railroad defendants must prevail because

Congress exclusively occupies the field including the

manufacture of locomotive brakes. We therefore hold plaintiffs'

state claims are preempted by federal law, and do not reach

plaintiffs' additional claims of error as to the railroad

defendants.8

8
This broad preemptive field leaves plaintiffs without a remedy,
however, until Congress amends the LIA we are powerless "to
prevent such an injustice." See Craner v. Cedar Rapids & Iowa
City Ry., 395 U.S. 164, 167, 89 S. Ct. 1706, 1708, 23 L. Ed. 2d
176, 180 (1969) (In the context of whether state-law defenses
are available to a railroad being sued for injuries caused by
its failure to adhere to the Federal Appliance Safety Act of
1893, 27 Stat. 531, 45 U.S.C. § 2, the Court acknowledged the
unfairness of barring a non-federal employee from the recovery
that would have been available to a federal employee for
(continued)

24 A-3431-13T4
 III.

Plaintiffs contend that the judge erred in ruling that

plaintiffs did not present sufficient evidence of Brust's

secondary exposure to asbestos-contaminated automobile brake

shoes and in granting summary judgment to the automotive

defendants on that basis. Again, we disagree.

In granting Honeywell's motion, the trial judge found:

[Brust] testified that the first time she
saw her father perform a brake job was
around 1970 and the family moved from New
Jersey to Georgia in 1978. Additionally, []
Noga testified that he performed
approximately one brake job per year. []
giving [Brust] all favorable inferences the
total number of exposures from all brake
jobs utilizing various brake pad
manufacturers performed by her father is
eight.

Furthermore, [Noga] when asked was
unable to quantify the number of times he
performed a brake job using brake products
manufactured, sold, and/or distributed by
Bendix [now Honeywell]. [] Noga's testimony
lacks the specificity required by the
standard outlined by the court in Sholtis
[v. Am. Cyanamid Co., 238 N.J. Super. 8, 30-
31 (App. Div. 1989)]. Therefore, Plaintiff
has failed to submit evidence that would
allow [] a reasonable jury to find that []
Brust was exposed to friable asbestos on a

(continued)
performing the same work "in the same manner" as the non-federal
employee, but added, "It is not permitted the Court to rewrite
the statute." Id. at 167, 89 S. Ct. at 1708, 23 L. Ed. 2d at
180).

25 A-3431-13T4
 regular and frequent basis in close
proximity to Defendant's product.

The judge granted Abex's motion for summary judgment, regarding

its automobile brake shoes, on the same basis.

When the judge granted Pep Boys' motion for summary

judgment,9 he reiterated Brust's deposition testimony:

that she witnessed her father perform brake
jobs on the vehicles infrequently maybe []
once every two or three years. Therefore,
given that the relevant time period for
exposure was at most [eight] years, a
reasonable inference would have been that
[Brust] was present for approximately [two]
to [three] brake jobs performed by her
father.

It is undisputed that Brust assisted in washing her

father's clothes. The judge opined, however, that even when

viewing the facts in the light most favorable to her, nothing in

the record established that her illness resulted from exposure

during "Noga's use of asbestos containing brakes sold and/or

distributed by Pep Boys."

In a products liability failure-to-warn case, a plaintiff

must prove that: 1) the product was defective; 2) the defect

existed when the product left the defendant's control; 3) the

defect caused injury to a reasonably foreseeable user; and

4) the defect was the absence of warning that the product can

9
This was actually a motion for reconsideration, as the original
motion for summary judgment was denied.

26 A-3431-13T4
potentially cause injury. James v. Bessemer Processing Co., 155

N.J. 279, 296 (1998); Coffman v. Keene Corp., 133 N.J. 581, 593-

94 (1993).

In an asbestos failure-to-warn case, the plaintiff must

also prove two types of causation: product-defect and medical

causation. Becker v. Baron Bros., 138 N.J. 145, 152 (1994);

Coffman, supra, 133 N.J. at 594; Hughes v. A.W. Chesterton Co.,

435 N.J. Super. 326, 337 (App. Div.), certif. denied, 220 N.J.

41 (2014).

"Proof of direct contact 'is almost always lacking,' and

need not be proven by direct evidence of asbestos exposure."

Hughes, supra, 435 N.J. Super. at 344 (citation omitted)

(quoting James, supra, 155 N.J. at 301).

Regardless, to establish medical causation, a plaintiff

must demonstrate that the exposure to the defendant's asbestos

products was a "substantial factor" in causing the disease.

James, supra, 155 N.J. at 299. New Jersey courts, as well as

courts in a majority of other jurisdictions, James, supra, 155

N.J. at 302-04, look to the "frequency, regularity, and

proximity" of exposure as pronounced in Sholtis, supra, 238 N.J.

Super. at 28. Assessment of those circumstances determines

whether exposure to the defendant's asbestos-containing product

was a "substantial factor" in causing the alleged injury.

27 A-3431-13T4
Hughes, supra, 435 N.J. Super. at 337-38; Provini v.

Asbestospray Corp., 360 N.J. Super. 234, 239 (App. Div. 2003).

Nonetheless, the frequency, regularity and proximity test

"'is not a rigid test with an absolute threshold level necessary

to support a jury verdict.'" James, supra, 155 N.J. at 302

(quoting Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir.

1992)). "The phraseology should not supply 'catch words' [and]

the underlying concept should not be lost." Sholtis, supra, 238

N.J. Super. at 29.

We held in Sholtis that "a plaintiff only need produce

evidence from which a fact-finder, after assessing the proof of

frequency and intensity of plaintiff's contacts with a

particular manufacturer's friable asbestos, could reasonably

infer toxic exposure." Ibid. "Under this test, plaintiff

cannot rest on evidence which merely demonstrates that a

defendant's asbestos product was present in the workplace or

that he had 'casual or minimal exposure' to it." Kurak v. A.P.

Green Refactories Co., 298 N.J. Super. 304, 314 (App. Div.)

(quoting Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227, 236

(App. Div. 1994)), certif. denied, 152 N.J. 10 (1997).

Thus, in order to prove medical causation in this matter,

plaintiffs must provide sufficient evidence from which a

reasonable jury could infer that from 1970 to 1978, Brust was

28 A-3431-13T4
exposed to asbestos-contaminated brakes manufactured by

Honeywell and Abex, and sold by Pep Boys, frequently, regularly,

and while she was in close proximity to those products. Viewing

plaintiffs' evidence in the most favorable light, a jury could

find that Noga replaced the brake shoes on eight cars from 1970

to 1978, and that both the old brake shoes, about which nothing

is known, and the new brakes shoes were contaminated with

asbestos. During those eight years, Brust was exposed to

asbestos through contact with her father while he handled

asbestos-contaminated brake shoes on at most four occasions, and

through washing his clothes on at most eight occasions.

Although Noga purchased most of the brake shoes from Pep

Boys, he could not recall the names of the manufacturers of the

replaced brake shoes, where most of the dust originated. He

could not quantify the number of times he installed new Abex,

Bendix, or Raybestos10 brake shoes.

Plaintiffs contend from this testimony that "the evidence

would only support a finding that one set of brakes Noga

purchased at Pep Boys was manufactured by Honeywell's

predecessor, Bendix, and one other set by Abex." And it is

10
Raymark Industries, Inc., a manufacturer of asbestos-
contaminated automotive brakes, filed a Chapter 11 bankruptcy
petition in 1998, and is not named as a defendant in this case.
In re Raytech Corp., 261 B.R. 350, 353 (Bankr. D. Conn. 2001).

29 A-3431-13T4
undisputed that mesothelioma can develop from minimal exposure

to asbestos. But the exposures established by this record are

so few and so limited that they simply fail to meet the

"frequency, regularity, and proximity" test.

That test was satisfied in Olivo v. Owens-Illinois, Inc.,

186 N.J. 394, 399 (2006), for example, where the plaintiff

alleged she developed mesothelioma as a result of laundering her

husband's asbestos-laden work clothes over a forty-year period.

Similarly, in Anderson v. A.J. Friedman Supply Co., 416 N.J.

Super. 46, 54 (App. Div. 2010), certif. denied, 205 N.J. 518

(2011), we found summary judgment should not be granted where

the plaintiff developed mesothelioma from laundering her

husband's asbestos-laden work clothes over a thirty-year period.

And, in Kurak, supra, 298 N.J. Super. at 310, 321-22, sufficient

proofs were established by the plaintiff's work as a laboratory

technician in close proximity to asbestos-contaminated pipe

insulation for at least thirteen years.

Hence, we agree with Judge LeBlon that even if Brust was

exposed to one of each of the automotive defendants' products

over an eight-year period, assuming they were sold by Pep Boys,

she failed to establish sufficient contacts to meet the

frequency, regularity, and proximity test. See, e.g., Chavers

v. Gen. Motors Corp., 79 S.W.3d 361, 370 (Ark. 2002) (one-time

30 A-3431-13T4
exposure does not satisfy regularity and frequency test). There

is no genuine issue as to any material fact. Viewing the

circumstances in the light most favorable to plaintiffs, Brust's

exposure lacked the requisite frequency, regularity, and

proximity entitling the automotive defendants to summary

judgment as a matter of law.

Affirmed.

31 A-3431-13T4