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)
2

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
3

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. 
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

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
5

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.
6

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
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

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.
“[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

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
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

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.”).
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

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-towarn 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
difference”); see also Law, 114 F.3d at 910-13 (treating failure to

warn claim as a product liability claim). 

11

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
12

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. 
13

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 &
14

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
15

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
16

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.