good morning judge holmes and medleys the court when federal law occupies a field it preempts state regulation whether or not it's complimentary or inconsistent here congress given its intensive and significant investment in intercontinental or transcontinental railroad as well as that interest in interstate uninterrupted interstate train commerce has completely run regulated and occupied the field of rail bickel construction and safety but plaintiffs lawsuit intrudes upon that field and undermines the interest at stake there and it does so by indicating that the real car at issue in this case walk consistent with federal law is unreasonably unsafe under kansas state law because tho oh i have a question and i'll start with the l i thank you i have a hard time seeing how you preserve the argument that you're making now i've read through every order that the court made and looked at the arguments that you made and that those arguments related to the insulation in the pipe they did not relate to the rail car that is an entirely distinct theory as far as i can tell and i know so tell me help me out here because i don't see how this org recollection of the record is that we predict that the plaintiffs are going to object to the real core preemption and the broad preemption that would apply not only to the locomotive but also to the appurtenance so throughout the entire proceedings we entered did not relate to the real cost yes so the st order that the district court identified looked at whether or not it was the piping aspect and then so because it was the piping aspect well so then we had to address the piping aspect as the district were court didn't make that up and the courts obligation is not to pick the theory to case it's your obligation right but in the rule twelve motion we specifically identified the railcar preemption and at the time i'll get the pleadings but i believe it's jay we know i don't want  the rail car and that's the fundamental error because i think the current decision the united states supreme court decision says that you don't look at whether we slice and dice these particular aspects and where they are used rather in that case i think the locomotive  brakes were repaired and replaced i think that's what so you never brought up the pipes that was all the district court you know i think everything about this case is the piping insulation but the aspect of separating that out and segregating them out from the rail car is is a distinction that we didn't make rather because they're part of the rail car that is it makes no difference whether or not they were connected to the local militias or any anything in the record where you're correcting the district co complaining you've misunderstood our theory i don't think there's anything that the that there is a correcting or mis understood i think a the entire time we're asserting that under the current decision the only difference here is that the rail car is an apartment so i don't think that we would indicate that a rail car or i'm sorry piping beneath a rail car is in apartments because it's to a locomotive rather the entire train operates one in one in the same room so so you're characterize it is we asserted in an initially a broad view and the district court said well you know like the rd circuit it matters whether or not the piping is connected from the locomotive to each particular rail car and so we said well ok if you're going to do that it was but our point is that we didn't have to say judge your wrong this is a bigger railcar remember how we pointed out on j want to four why didn't you because you the court denied you relief on motion arguing sure i think i think that is a possible way to go about litigating a case but sometimes i would read a judge of like listen the judge is going to go this way i've made my argument i think i can still win as the judge is kind of inclined to go to and so i think i think the way that this case was litigated below is even if you want to look at apartments the record would indicate that they are connected but i don't think that makes sense in the cards decision because at the point these mr rabe was working on these it wasn't connected to a railroad much like a locomotive brakes wasn't on the railroad when the plaintiff in that case was working rather the incident is a train it's designed to be put on a track just like the locomotive in  the rail car in this case is designed to be on the trail track and it's in a pertinent to the locomotive interstate rail transportation as it's connected to well all connected to the locomotive ultimately the trains are all connected yes but whether or not the incidence of a pipe being attached to the locomotive as opposed to at the couple or is immaterial to our argument i think because what congress was designed or what congress intended the rail car regulations to do is to promote uninterrupted interstate rail transportation whether or not a particular pipe was connected from a locomotive to something else doesn't matter because the ultimate purpose isn't connection of pipes rather it's the movement so brakes you on a real car i would point you to judge or a brain knows decision in the eastern district of pennsylvania indicated that that was part and parcel of the train whether it was connected when it was worked on or not didn't matter rather the import of congress is the regulation of interstate uninterrupted interstate rail transportation and so that's why we believe the definition of impertinent appurtenances apply important well but what if we search the record and we don't agree with you a i would also point i think i mentioned a summary judgment i don't have the appendix i want to come back but i would i would point to the preemption in the answer pretrial order and post  proposed motions as well but i'll get those to you so i think if you don't agree with me on the l i then you go to the essay the safety appliance at and i think our understanding of southern railway as well as the guilt every decision is that that is an occupation of the field that would exclude state regulations what do you do then with the supreme court's terminal railroad association where the court held that the state of illinois was not preempted from regulating weather could lose was attached to the locomotive i mean  involved not not whether or not a rail car locomotive or anything else can be on the tracks i think that the language of the essay is important it's where all carriers can use in the essay it's rail cars trains and whatnot on the tracks if they have these minimal safety devices so it may be used now whether that state could then add an additional train construction and i'm using it not in the building sense but rather as in the number of cars and what types of cars are if they can use that in the construction focus that would be something that is outside of the safety of the state was adding that could boost for safety purposes it was my understand your position under s a a would be that they can't do believe that train construction is something that would fall within the safety appliance act and again i'm using construction in the sense of building the train with multiple cars not as creating a real car so i think that's that's the distinction i would draw there thought i would point the court to the southern railway and go over a decision which recognizes a broad field and i think some of the court low in in those cases was it in fact the case that they were dealing with something that wasn't specified in the  doing two things one is it saying trains can be on the tracks if they have these minimum safety devices and there's absolute liability if any of those things are incorrect but what it also says is this is the minimum floor that congress has regulated it doesn't invite additional and complimentary or consistent safety activities from the states rather congress has occupied a broad field and i think that's what southern railway as well as gold we recognise is a broad preemptive power that it would exclude additional state interventions saying you need to have three guardrails instead of two or in this case you need to have a particular piping insulation because look at the result of the situation each states can have competing laws and i see i'm getting close to three minutes on the rub each state would have competing laws with regard to what there are views on safety and environmental security are in it would throw a patchwork o regulations onto the trails which would interrupt interstate uninterrupted interstate rail transportation so i think the terminal railroad association i think that was a terminal whether or not it was interstate i think is subject to dispute that's  route unless the court has any question that probably reserve the balance my time and i'll go look for the signs thank you law the supreme court upheld new york's safety regulation of passenger car heating it wouldn't exactly this is very subject matter of this case rejecting  uniformity argument just as harlan stated the following words counsel for the railroad suggested that to stop an express train on its trip from new york to boston in order that the passengers have the car heated as required by new york would be a hardship on travel that could not be endured but these possible inconveniences cannot affect the question of the power of each state to make reasonable regulations for the safety of interstate trains so long as congress deems it wise not to establish regulations on that subject that would displace any inconsistent regulations of the states covering the same ground new york new haven in hartford was heavily relied on by the supreme court in its st preemption decision that's where lee addressed the essay and that was a c l vs georgia there the state of georgia had imposed a headlight requirement allowing that headlight requirement to stand the supreme court said said it again quote if there appears to be need of standardization that remedy does not rest in the denial to the states in the absence of conflicting federal action of their powers to protect life and property but rather in the judgment of congress when it pleases to create the rule and make the standard to be observed the term that was used by justice harlan in new york new haven the term covering was also selected by congress when it passed the federal railroad safety act of one thousand nine hundred and seventy which is a far more comprehensive safety act than either of these two old statutes that act has an express preemption provision and c s x vs east or would the court said that that term covering which is used in the f r essays express preemption provision shows a solicitude toward state law and permits pre emption only when the state action is quote substantially subsumed by the federal law so but has it backwards the safety appliance  certainly preempt any state standard that infringes on ground that it covers but the usa preemption thesis on which it relies which is the alleged pervasive federal regulation of  devoid of historical proof in fact with their proper really arguing is is it is it is a storm in commerce clause of the type that was rejected in new york new haven now the southern rail it was a straightforward decision it prohibited estate from exacting penalties for an essay a violation which was a broken grab byron on a real car the usa of course regulated grab  it already had a penalty provision in the in the usa so but but the notion that southern railway somehow silently overrule atlanta coastline which was decided the year before ignore southern railways own test these this was the words of the southern railway court the test is not whether the state legislation is in conflict with the details of the federal law or supplements it but whether the state heating they already had it so so reading southern railway in the way that bud is of course overreaching they have also agreed political of course that there wouldn't it was never a federal standard for pipe insulation and that's in the appendix of page twenty eight dollars when the s a a standard of care applies of course it's absolute the failure of a statutory device to function creates absolute liability and regardless of the usage us care of the railroad and this court recognized that in the miller case were recognized that that that a motorist would have a cause of action under state law for violation of the essay and the act has to be liberally construed paver those it's protects but the subject matter of the act it covers can't exceed the intent of congress because to do otherwise would improperly expand the penal statute there are civil penalties under essay so if we say that s c covers everything that has a good safety then does the us is that mean a u s attorney is able to go to prosecute the railroad and say that there was an essay violation because this this particular part has something to do with safety we can expand the penal statute in that manner so too with tort actions just as van deventer who was then on the th circuit in us st as a ts f which is explained that whatever properly would be deemed a violation in a civil penalty action would also be a violation for personal injury so it simply makes no  sense to split the coverage of the usa you we can't do it as the subject matter is the subject matter it makes no sense to take one hundred and thirty year old statute and end and have a preemptive feel beyond the safety and somebody injured for example buy a bios bring a car approx car brace rod would have a claim for s a a violation by virtue of the fact that the vice isn't i appliance intended for the safety of the ploys which is the top of the old title of the original act but that device the brace rod is exactly the device found not to be within the scope of the s a a in the scarlet case in one thousand and thirty seven of the act is this is the scope of the regulatory field so in summary judgment your honor i mean but quite clearly said that it's pipe covering was  safety appliance that's at seven o five but but the material specification which it produced in this case which designate all of the included safety appliances that were sold on the rail car does not include asbestos or pipes or pipe covering or the like instead they simply doesn't make the same eight devices that s a a has already already regulates and the fast best is when somehow a safety why wasn't it on the list today's passenger quitman safety standards contain their own preemption regulation which is it forty nine c f r section two hundred and thirteen with the exception of and ninety seven dollars that if the federal government does not and that the regulation covering the device that state requirements may continue state standards for rail cars are not preempt until there's a covering regulation new york new haven and hartford and doors today i want to speak just for a moment about the issue of w said the following forbade him quote seven o seven in the appendix but does not assert that the locomotive inspection act pertains to rail cars per se rather civil procedure and the disclosure requirements to rightly rely on that but what we think i mean we beat the the connection theory a trial that we have to fight another theory on appeal the steampipe interconnection theory was the same thesis advocated by their company's president mr basti in his his testimony his affidavit is discussed in the court's order denying summary judgment at eight hundred and thirty three dollars apparently though that theory has now been abandoned on appeal they're no longer arguing it so in fact in favor of this new one i think it's important for the court to understand just briefly that the diagnosis of malignant me severely on that was not contested in this case either was causation plaintiff was granted a partial summary judgment by the court and that's that issue's not for the court today but the reason that i bring it up is because a trial after victor rog will use a pathologist from duke explained that the product that they chose to use on these car pipes called woven stone was about  uncontrolled dusty conditions like under a rail car double their risk of measles still yeomen in just a few months if not less mr ray burked around the stuff for thirty years so the jury heard evidence that his risk of doubled and redoubled and redoubled exponentially now as we know from the record buds railcars had three types of piping steam air conditioning and water two of those three pipings water in the air conditioning had no connection to locomotives not even theoretical connections mr wright was exposed to them too that's an uncontested fact in the records a thirty eight joint appendix and that a trial there would be plenty of evidence that mr ray was exposed to asbestos on pipes that were never even connected or not even theoretically connected to a locomotive in fact one of them on your own the prior to trial but stipulated that it wouldn't arguments preemption theories to the jury and they never requested a jury submission on the predicate facts for this interconnection defense at all they never asked what pipes was mr supposed to there was no special issue submitted a jury and it was their burden to do so of course at the as the court is aware of fifty a motion was never made at the conclusion of the plaintiff's case here the of course here even on fifty b after judgment but again described it sell a preemption thesis as pertaining to quote steam lines running under the rail cars connect arguing now it was on a different preemption your honour's having met and defeated the steam line interconnection theory the plaintiff should not be required to fight another theory on appeal of course we never know what the corp will decide to do should the court decide to reach the merits the whole rail car theory that they're arguing now there are five distinct reasons why it's a it's a bad argument numbering on the theory that the l i in the essay together collectively preempted the field that's not that's not talking about a real car this specific l i ranch and derived from the rail car and its connection locomotive those are two different things so the statutes are different but i think the argument was in particular to that and that's what i understood yeah i understood you said it though that argument was that collectively the ally in s a a preempted the field a collective argument in the district court in its i think response your most to the motion to dismiss said well you know two plus two you know you don't get any more if you don't grant this you don't grant that you the sum is not greater than the parts right so leaving aside the collection of those i think the specific thing is in our we addressed it with regard to i would point the court to that provision i would also point to the summary judgment pleadings that starve them out to seventy three through to seventy seven dollars so we were specifically talking about not just railcar but also in our connected piping system anything with regard to the piping system that's going to be repaired or manufactured much like the brake shoes in kearns or the brake shoes in the perry decision from the eastern district of pennsylvania it doesn't matter how they're connected or whether they're connected rather it matters whether or not they're a locomotive appurtenance in the definition of a pertinence is broad enough to include the real core the piping within the rail car or other items on that rail car and that's the whole purpose is the court the district court needed to look on that extra basis whether or not the real core or even the piping system is to a railroad kerns dealt with a part of a locomotive this deals with in a permit that's what we believe the district court failed to look at the text and apply the text of the item at issue in this case