Kurns v. A.W. Chesterton Inc.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 09-1634
_____________

GLORIA GAIL KURNS,
Executrix of The Estate of George M. Corson, Deceased;
FREIDA E JUNG CORSON, Widow In Her Own Right

v.

A.W. CHESTERTON INC., et al.;
BOC INC., Airco Welders Supply Inc.;
RAILROAD FRICTION PRODUCTS CORPORATION;
VIAD CORP.

Gloria Gail Kurns;
Freida E. Jung Corson,
Appellants
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil No. 08-2216)
District Judge: Hon. Mitchell S. Goldberg

Argued January 11, 2010

Before: RENDELL, AMBRO, and CHAGARES, Circuit Judges.

(Filed September 9, 2010)

______________

Robert E. Paul (argued)
Richard P. Myers
1608 Walnut Street
Suite 500
Philadelphia, PA 19103
Counsel for Appellant

W. Thomas McGough, Jr. (argued)
Robert H. Owen
Reed Smith LLP
Reed Smith Centre, 225 Fifth Avenue
Pittsburgh, PA 15222-2716
Counsel for Appellee Railroad Friction Products Corporation

Daniel Markewich (argued)
Ellen G. Margolis
Mound Cotton Wollan & Greengrass
One Battery Park Plaza
24 Whitehall Street
New York, NY 10004

David P. Helwig
Marks, O’Neill, O’Brien & Courteney, P.C.
2600 Gulf Tower
707 Grant Street
Pittsburgh, PA 15219
Counsel for Appellee Viad Corporation

______________

OPINION
______________

CHAGARES, Circuit Judge.

Appellants Gloria Gail Kurns and Freida E. Jung Corson
brought suit on behalf of the decedent, George M. Corson,
asserting a number of state law causes of action related to his
alleged exposure to asbestos during his years employed by a
railroad company. While the suit was filed in state court, the
matter was removed to federal court on the basis of diversity
jurisdiction, and the District Court granted the appellees Viad

2
Corporation and Railroad Friction Products Corporation’s motions
for summary judgment, holding that the plaintiffs’ claims were all
preempted by the Locomotive Inspection Act, 49 U.S.C. § 20701,
et seq. (“LIA”). The plaintiffs appeal from the District Court’s
entry of summary judgment on behalf of the appellees and argue
that their claims are not preempted by federal law. For the reasons
set forth below, we will affirm.

I.

From 1947 to 1994, George M. Corson (the “decedent”)
worked as a welder, machinist, and supervisor for the Chicago,
Milwaukee, St. Paul, & Pacific Railroad. He was employed at
different facilities in Montana and South Dakota. Much of his job
involved removing insulation from locomotive boilers and putting
brake shoes on the locomotives. The plaintiffs claim that
throughout this time period, the decedent was repeatedly exposed
to asbestos from the insulation and the brake shoes. After his
retirement, the decedent was diagnosed with malignant
mesothelioma, the only known cause of which is exposure to
asbestos. He passed away after the initiation of this litigation, and
is represented by both his widow and the executor of his estate.

The plaintiffs sued the two appellees, as well as a number of
other defendants (fifty-nine defendants in all), in Pennsylvania
state court, seeking to recover compensatory and punitive damages
for the harmful effects to the decedent’s health resulting from his
exposure to asbestos. The plaintiffs alleged that the decedent
installed brake pads containing asbestos that were manufactured
and sold by Railroad Friction Products Corporation (“RFPC”).
They further alleged that Viad was a successor in interest to a
different company that manufactured and sold engine valves, also
containing asbestos, which the decedent installed. Viad moved for
summary judgment on the grounds that the plaintiffs’ claims were
preempted by federal law, but the state court denied that motion.
All of the defendants then moved for summary judgment on the
grounds that there was insufficient evidence linking their products
to the decedent’s exposure to asbestos. The state court granted
these motions with regard to all of the defendants except Viad and
RFPC.

3
 The plaintiffs brought this case in state court because one of
the other original defendants defeated diversity jurisdiction, but
when the state court granted that defendant’s motion for summary
judgment and that party was released from the case, there was
complete diversity of citizenship between the parties. At that point,
Viad and RFPC removed the case to the District Court. Once in
federal court, the defendants again filed a motion for summary
judgment on the grounds that the plaintiffs’ claims were preempted
by federal law.

On February 5, 2009, the District Court granted summary
judgment in favor of RFPC and Viad, holding that the plaintiffs’
state law product liability tort claims were preempted by federal
law, namely the LIA.1 The District Court held that the LIA
occupies the field of regulating locomotives and locomotive parts
used in interstate commerce based on the Supreme Court’s decision
in Napier v. Atlantic Coast Line Railroad Co., 272 U.S. 605, 613
(1926), in which the court explained that the LIA occupies the field
of locomotive equipment.2 The District Court rejected the
plaintiffs’ contention that federal law only preempted state
regulations involving locomotives which were “in use” at the time,
and that since their case involved the actual installation, repair, and

1
The LIA provides, inter alia, that:

A railroad carrier may use or allow to be used a
locomotive or tender on its railroad line only when
the locomotive or tender and its parts and
appurtenances --

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

49 U.S.C. § 20701.
2
The District Court noted that other district courts in our
circuit have reached similar conclusions. See, e.g., Consol. Rail
Corp. v. Pa. Pub. Util. Comm’n, 536 F. Supp. 653, 655 (E.D. Pa.
1982) (holding that the LIA preempts the field of locomotive
equipment and therefore states cannot regulate speed recorders in
locomotives), aff’d mem., 696 F.2d 981 (3d Cir. 1982).

4
removal of locomotive parts, federal preemption did not apply.
The Court held that there was no indication in the law that
Congress intended to make such a distinction. Finally, the Court
rejected the plaintiffs’ claim that the Federal Railroad Safety Act
(“FRSA”) materially abrogated the scope of federal preemption of
the entire field of railroad parts. The Court held that the FRSA had
not changed the scope of LIA preemption to such an extent that it
would no longer preempt the plaintiffs’ claims.

The plaintiffs filed a timely appeal from the District Court’s
order.

II.

The District Court had diversity jurisdiction over this matter
pursuant to 28 U.S.C. § 1332(a)(1). This Court has jurisdiction
under 28 U.S.C. § 1291. We review a district court’s order
granting summary judgment under a plenary standard of review.
Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Summary
judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When
reviewing a grant of summary judgment, we view all evidence in
the light most favorable to the non-moving party, and will affirm
only if there is no genuine issue of material fact. Startzell v. City
of Phila., 533 F.3d 183, 192 (3d Cir. 2008).

III.

On appeal, the plaintiffs contend that state law design defect
and failure to warn product liability claims are not preempted by
the LIA. The plaintiffs urge that the LIA preempts the regulation
of locomotive equipment, but does not preempt “railroad workers’
personal injury claims under state tort law for failure to warn about
hazardous substances released during the repair of locomotives
which [are] not in service.” Plaintiffs’ Br. at 19. We disagree and
hold that the plaintiffs’ claims are preempted by the LIA.

A.

5
 We first turn to the plaintiffs’ contention that the LIA does
not preempt a state law or regulation related to working conditions
in a facility that manufactures, installs, repairs, or removes
locomotive parts and appurtenances.

The doctrine of preemption is grounded in the Supremacy
Clause of Article VI of the Constitution, which provides that “the
Laws of the United States . . . shall be the supreme Law of the
Land.” U.S. Const. art. VI. Under that clause, “any state law,
however clearly within a State’s acknowledged power, which
interferes with or is contrary to federal law, must yield.” Free v.
Bland, 369 U.S. 663, 666 (1962). In cases like the present one,
courts are called upon to determine whether an act of Congress
preempts state law. See Deweese v. Nat’l R.R. Passenger Corp.,
590 F.3d 239, 245 (3d Cir. 2009).

There are three distinct types of federal preemption: express
preemption, implied conflict preemption, and field preemption.
Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S.
707, 713 (1985); Bruesewitz v. Wyeth Inc., 561 F.3d 233, 238-39
(3d Cir. 2009). Express preemption occurs when a federal law
contains express language providing for the preemption of any
conflicting state law. Lorillard Tobacco Co. v. Reilly, 533 U.S.
525, 541 (2001). Implied conflict preemption occurs when it is
either “impossible for a private party to comply with both state and
federal requirements, or where state law ‘stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.’” English v. Gen. Elec. Co., 496 U.S. 72,
79 (1990) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)
(citation omitted)). The final type of preemption, which is relevant
to this case, is field preemption, which arises when a state law or
regulation intrudes upon a “field reserved for federal regulation.”
United States v. Locke, 529 U.S. 89, 111 (1990).

When determining whether a federal law or laws serve to
preempt an entire field, “[o]ur inquiry into the scope of a statute’s
pre-emptive effect is guided by the rule that ‘[t]he purpose of
Congress is the ultimate touchstone in every pre-emption case.’”
Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quoting
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)); see also
Deweese, 590 F.3d at 246. In doing so, we consider the intended

6
purpose of the federal regulatory scheme, and what impact any
state regulation would have on that scheme. Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 373-74 (2000). The
Supreme Court has recognized that there is a presumption against
field preemption unless congressional intent to preempt is clear and
manifest. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516
(1992).

The LIA3 was originally passed in 1911, and was amended
in 1915 and 1924. In pertinent part, it provides that “[a] railroad
carrier may use or allow to be used a locomotive or tender on its
railroad line only when the locomotive or tender and its parts and
appurtenances -- (1) are in proper condition and safe to operate
without unnecessary danger of personal injury . . . .” 49 U.S.C. §
20701. While the statute itself is silent as to any preemptive effect,
one can easily understand how a state law or action which regulates
whether a locomotive or any of its parts and appurtenances “are in
proper condition and safe to operate” could conflict with federal
safety regulations.

The Supreme Court has explicitly addressed the question of
the scope of LIA preemption. In Napier, the Court held that “the
power delegated to the [Interstate Commerce] Commission[4] 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.”5 272 U.S. at 611.

3
The LIA was originally known as the Boiler Inspection
Act, or BIA, and is referred to as such in much of the case law cited
and quoted throughout this opinion. We simply note that this is a
distinction without a difference, and both terms refer to 49 U.S.C.
§ 20701, et seq.
4
The LIA initially conferred regulatory authority over the
construction and material of locomotives and appurtenances to the
Interstate Commerce Commission. That regulatory authority has
since been transferred to the Department of Transportation. 45
U.S.C. § 28.
5
In a later decision, the Court defined the scope of “every
part of the locomotive and tender and of all appurtenances” as

7
The Court went on to “hold that state legislation is precluded,
because the Boiler Inspection Act, as we construe it, was intended
to occupy the field. The broad scope of the authority conferred
upon the Commission leads to that conclusion.” Id. at 613
(emphasis added).6 The Court also specifically noted that the
delegation of powers to a federal agency meant that any state law
in that area was preempted, regardless of whether the agency
actually exercised those powers:

It is also urged that, even if the Commission has

“[w]hatever in fact is an integral or essential part of a completed
locomotive, and all parts or attachments definitely prescribed by
lawful order of the Interstate Commerce Commission.” S. Ry. Co.
v. Lunsford, 297 U.S. 398, 402 (1936).

The plaintiffs urge that the LIA only governs “on the road
injuries” and is irrelevant when a locomotive is not “in use.”
Plaintiffs’ Br. at 20. The plaintiffs are correct that liability under
the LIA only exists if the locomotive was in use at the time of the
accident. See Crockett v. Long Island R.R., 65 F.3d 274, 277 (2d
Cir. 1995). Here, however, the plaintiffs are not asserting or
contesting liability under the LIA. But even if the fact that the
locomotive parts and appurtenances that allegedly contained
asbestos in the present case were not connected to a locomotive
which was in transit at the time of exposure prevents the plaintiffs
from bringing an action under the LIA, there are other federal
causes of action available for such a claim, as discussed infra. This
has no impact on the scope of preemption.
6
We are of course bound by a direct holding of the Supreme
Court of the United States. To the extent that the plaintiffs argue
that more recent decisions of the Supreme Court imply that the
Court may now view this issue differently, we simply note that the
Supreme Court has held that “[i]f a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected
in some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions.” Rodriguez de Quijas
v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989).

8
 power to prescribe an automatic firebox 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 the power.

Id. The Court also explicitly addressed the issue of congressional
intent, holding that although the original LIA did not show that
Congress intended federal law to preempt the entire field, it was
clear from the law as amended that this was precisely what
Congress intended. Id. at 611.7

Thus, the LIA preempts a broad field relating to the health
and safety of railroad workers, including requirements governing
the design and construction of locomotives, as well as equipment
selection and installation. Id. at 611-12; see also Urie v.
Thompson, 337 U.S. 163, 191-93 (1949) (holding that the LIA
covers claims relating to railroad employees’ health, including
diseases as well as accidents); Oglesby v. Del. & Hudson Ry. Co.,
180 F.3d 458, 460 (2d Cir. 1999) (“Through [the LIA] and other
acts, [Congress] conferred on the Interstate Commerce Commission
(and now the Department of Transportation) full authority over
virtually all aspects of locomotive safety to the exclusion of the
states.”); Law v. Gen. Motors Corp., 114 F.3d 908, 910 (9th Cir.
1996) (“It has long been settled that Congress intended federal law
to occupy the field of locomotive equipment and safety,
particularly as it relates to injuries suffered by railroad workers in
the course of their employment.”).

7
The plaintiffs engage in a lengthy discussion of implied
conflict preemption under Wyeth v. Levine, 129 S. Ct. 1187
(2009). Implied conflict preemption occurs when Congress has not
displaced all state law in an area, but state law actually conflicts
with federal law. Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d
237, 243 (3d Cir. 2008). Because we find that field preemption
under the LIA bars the plaintiffs’ claims, we need not analyze
implied conflict preemption.

9
 Here, the brake pads and engine valves that allegedly caused
asbestos exposure during installation are clearly locomotive
equipment and are therefore within the scope of the LIA. See
Oglesby, 180 F.3d at 461 (holding that an engineer’s seat in a
locomotive is obviously within the scope of the LIA). The
plaintiffs concede that regulations regarding locomotive equipment
are preempted by the LIA, but contend that this preemption does
not bar state tort law product liability claims, including failure-to-
warn claims, arising from the installation of locomotive parts.
However, we find that the plaintiffs’ claims “fall[ ] squarely within
the field of employment hazards that the [LIA] was intended to
cover.” Id. at 462.

The goal of the LIA is to “prevent the paralyzing effect on
railroads from prescription by each state of the safety devices
obligatory on locomotives that would pass through many of them.”
Id. at 461 (quotation marks omitted); see also Law, 114 F.3d at 910
(“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.’” (quoting S. Pac.
Transp. Co. v. Pub. Util. Comm’n of Or., 9 F.3d 807, 811 (9th Cir.
1993))). In order to accomplish this goal, suits against
manufacturers of locomotive parts for product liability claims
should be included in the scope of the LIA’s field preemption,
particularly because the LIA governs both the design and the
construction of a locomotive’s parts.8 See Oglesby, 180 F.3d at

8
The plaintiffs also argue that even if this Court holds that
their negligence and other state law claims are preempted by the
LIA, their claim for failure to warn is not preempted because it
involves a failure to place a warning label on some of the products
in question, and does not directly involve the parts and
appurtenances themselves. This is merely an attempt at artful
pleading. The gravamen of the plaintiffs’ claim is still that the
decedent suffered harmful consequences as a result of his exposure
to asbestos contained in locomotive parts and appurtenances. The
plaintiffs may not merely rebrand a claim in order to avoid
preemption. See Oglesby, 180 F.3d at 461 (rejecting a plaintiff’s
attempt to differentiate failure to warn cause of action from other
product liability claims, calling it “a distinction without a

10
462 (“[T]he results that Congress had hoped to obtain through the
[LIA] would be accomplished best by including the manufacturer
within the statute’s coverage.”).

If each state had its own standards for liability for railroad
manufacturers, equipment would have to be designed so that it
could be changed to fit these standards as the trains crossed state
lines, or adhere to the standard of the most restrictive states. First
Sec. Bank v. Union Pac. R.R. Co., 152 F.3d 877, 880-81 (8th Cir.
1998); Law, 114 F.3d at 910-11; cf. British Airways Bd. v. Port
Auth. of N.Y. & N.J., 558 F.2d 75, 83 (2d Cir. 1977) (holding that
if states were allowed to pass laws or regulations impacting the
airline industry, “[t]he likelihood of multiple, inconsistent rules
would be a dagger pointed at the heart of commerce”). Congress’s
goal of uniform railroad equipment regulation would clearly be
impeded by state product liability suits against manufacturers, the
purpose of which is, in part, to persuade defendants to comply with
a standard of care established by the state. See Law, 114 F.3d at
911. Furthermore, there is “no doubt” that the design of
locomotive parts and warning requirements are within the scope of
the Secretary of Transportation’s authority. Id. As the Court of
Appeals for the Ninth Circuit has observed:

The [LIA] preempts any state action that would
affect the “design, the construction, and the material”
of locomotives. Napier, 272 U.S. at 611. Imposing
tort liability on railroad equipment manufacturers
would do just that, by forcing them to conform to
design and construction standards imposed by the
states. This would transfer the regulatory locus from
the Secretary of Transportation to the state courts --
a result the [LIA] was clearly intended to foreclose.

Id. at 911-12.

While no federal court of appeals has faced the precise issue
of whether the LIA preempts state law causes of action arising out
of workplace exposure to asbestos in the course of manufacturing

difference”); see also Law, 114 F.3d at 910-13 (treating failure to
warn claim as a product liability claim).

11
or working with railroad parts, the highest courts in a number of
states have considered this issue, and those courts have
unanimously held such claims to be preempted. See, e.g., Darby
v. A-Best Prods. Co., 811 N.E.2d 1117, 1125-26 (Ohio 2004); In
re W. Va. Asbestos Litig., 592 S.E.2d 818, 822 (W. Va. 2003);
Gen. Motors Corp. v. Kilgore, 853 So. 2d 171, 176-80 (Ala. 2002);
Scheiding v. Gen. Motors Corp., 993 P.2d 996, 998-1004 (Cal.
2000). The Supreme Court of West Virginia, after conducting an
exhaustive survey of the relevant case law, concluded:

In spite of the strong presumption against federal
preemption . . . , an overwhelming body of case law
persuades us that, through passage of the Boiler
Inspection Act, Congress has occupied the field of
railroad safety so pervasively that plaintiffs’ claims
against the defendants are preempted. We do not
reach this conclusion lightly, but find any other path
blocked by an avalanche of adverse authority from
other jurisdictions, both state and federal.

In re W. Va. Asbestos Litig., 592 S.E.2d at 822 (footnote omitted).

We agree with the vast majority of courts that have been
called upon to decide the issue of the scope of LIA preemption. In
Napier, the Supreme Court clearly held that in its amendments to
the LIA, Congress intended to preempt all state laws, regulations,
and causes of action which involve “the design, the construction,
and the material of every part of the locomotive and tender of all
appurtenances.” 272 U.S. at 611. The plaintiffs’ claims
undeniably involve the material used in locomotive parts, both of
which fall under the definition of “parts and appurtenances” of
locomotives, S. Ry. Co. v. Lunsford, 297 U.S. 398, 402 (1936), and
therefore are preempted by federal law. See Napier, 272 U.S. at
611.

We agree with the District Court’s determination that
Congress’s intent in enacting and amending the LIA was to
preempt completely the field of railroad parts and appurtenances,
and that the locomotive components which are the subject of the
plaintiffs’ product liability action undoubtedly fall within that
category.

12
 B.

The plaintiffs urge that the LIA does not purport to
encompass the field of safety in the manufacture of locomotives
because the Occupational Health and Safety Act of 1970, 29 U.S.C.
§ 651, et seq., governs working conditions in a repair shop.
However, the plaintiffs’ claims do not involve hazardous working
conditions. Instead, the plaintiffs assert product liability claims
(failure to warn and design defect claims) against the
manufacturers of certain locomotive parts that allegedly contained
asbestos. “Working conditions” refers to the “environmental area
in which an employee customarily goes about his daily tasks.”
Columbia Gas of Pa., Inc. v. Marshall, 636 F.2d 913, 916 (3d Cir.
1980) (quotation marks omitted). We also note that the District
Court pointed out the difference between claims involving railroad
working conditions, see Terminal R.R. Ass’n of St. Louis v. Bhd.
of R.R. Trainmen, 318 U.S. 1, 2 (1943) (upholding an Illinois law
requiring cabooses), and a claim, as here, emanating from the
material used to construct locomotive parts.

Further, we note that federal law offers recourse to workers
exposed to asbestos under the Federal Employer’s Liability Act
(“FELA”), 45 U.S.C. § 51, et seq., which provides a federal cause
of action for any railroad employee injured on the job due to
employer negligence. Contrary to the plaintiffs’ claims, LIA and
FELA provide a broad, reasonable, and comprehensive legal
framework under which railroad industry employees injured by
employer negligence may seek damages. See Law, 114 F.3d at 912
(discussing the availability of claims brought under FELA as
recourse for injuries suffered by railroad industry employees in the
course of their employment). FELA has been recognized as the
appropriate avenue of relief in several of the state supreme court
cases discussed supra, which held that tort claims claiming asbestos
exposure and seeking recourse under state law were preempted by
the LIA. See, e.g., In re W. Va. Asbestos Litig., 592 S.E.2d at 822,
n.2; Scheiding, 993 P.2d at 1001.

C.

The plaintiffs also argued before the District Court, adopting
the reasoning of the Pennsylvania Supreme Court in Norfolk &

13
Western Railway Co. v. Pennsylvania Public Utility Commission,
413 A.2d 1037 (Pa. 1980), that the FRSA narrowed the scope of
the LIA’s preemption of state laws and regulations regarding
locomotive equipment. We disagree.

The Norfolk & Western decision is the lone exception to the
nearly unanimous interpretation of the breadth of LIA preemption.
In Norfolk & Western, the Supreme Court of Pennsylvania rejected
the assertion that the LIA completely preempted the field of
railroad equipment. 413 A.2d 1037. The court held that “[w]hile
the broad language of the Act at one time could have been
interpreted as reflecting Congressional intent to preempt the entire
field of railroad safety, the enactment of section 205 of the Federal
Railroad Safety Act in 1970 (FRSA) no longer permits that
reading.” Id. at 1043. Section 205, in relevant part, provided that
“[a] state may adopt or continue in force any law, rule, regulation,
order or standard relating to railroad safety until such time as the
Secretary (of Transportation) has adopted a rule, regulation, order,
or standard covering the subject matter of such State requirement.”
45 U.S.C. § 434. The court held that in certain circumstances this
statute enabled states to enact rules which regulated railroad safety.

Significantly, however, no court outside of Pennsylvania has
followed this ruling or its reasoning. Just two years after Norfolk
& Western was decided, in fact, a federal district court in
Pennsylvania explicitly rejected Norfolk & Western as being
incompatible with Napier. Consol. Rail Corp. v. Pa. Pub. Util.
Comm’n, 536 F. Supp. 653 (E.D. Pa. 1982), aff’d mem., 696 F.2d
981 (3d Cir. 1982) (table opinion). That court, noting that the
express purpose of the FRSA was to maintain broad federal
regulatory authority and ensure nationwide uniformity of
locomotive standards, held:

[I]n areas already governed by the Locomotive
Inspection Act, the states had no regulations. If the
Railroad Safety Act were to change the preemption
test for those areas, the states could expand their
regulatory authority, allowing a new reservoir of
differing, and possibly incompatible, railroad-safety
law. This would run counter to Congress’s purpose
of uniform national regulation. It is contrary to

14
 Congress’s purpose in passing the Railroad Safety
Act to allow the states to reoccupy fields from which
they previously had been displaced. Thus, I
conclude that Congress did not intend the
preemption provision of the Railroad Safety Act to
modify the total-preemptive effect of the
Locomotive Inspection Act.

Id. at 656-57 (footnotes omitted). We similarly reject the reasoning
of the Norfolk & Western court, and agree that Napier compels a
holding of preemption.

As previously noted, when determining whether a state law
cause of action is preempted, our “‘ultimate touchstone’” is
Congress’s purpose in passing a certain law. Altria Group, Inc.,
129 S. Ct. at 543 (quoting Medtronic, Inc., 518 U.S. at 485). While
the plaintiffs assert that Congress’s purpose in passing § 205 was
to allow increased state regulation over railroad safety, this is flatly
contradicted by the language of the statute itself, which provides
that “[l]aws, regulations, and orders related to railroad safety . . .
shall be nationally uniform to the extent practicable.” 49 U.S.C. §
20106(a). The Act authorizes the Secretary of Transportation to
“prescribe regulations and issue orders for every area of railroad
safety . . . .” 49 U.S.C. § 20103(a) (emphasis added). We hold that
in passing the FRSA, Congress did not intend it to disturb the
existing framework of federal preemption of the railroad industry
established by the LIA.

The FRSA has had no impact on the Department of
Transportation’s oversight of locomotive-related workplace safety
issues. The Federal Railroad Administration (“FRA”), an agency
within the Department of Transportation, has specifically
investigated and addressed the question of asbestos in locomotive
components, and concluded that the “FRA does not feel that further
action with respect to the presence of asbestos in locomotive cabs
is warranted at this time.” Federal Railroad Admin., U.S. Dep’t of
Transp., Rep. To Congress, Locomotive Crashworthiness and Cab
Working Conditions (Sept. 1996) at 10-12.

Because the express purpose of the FRSA was to maintain,
not decrease, federal uniform regulation of the railroad industry, we

15
reject the rationale of the Supreme Court of Pennsylvania’s Norfolk
& Western opinion, and reject the plaintiffs’ argument that the
FRSA narrowed the scope of LIA preemption as it applies to
product liability claims arising out of locomotive parts and
appurtenances.

IV.

For these reasons, we will affirm the judgment of the
District Court.

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