Guest Blogger Nicolas S. Allison is an Associate in Epstein Becker & Green’s Asbestos Group in New York. A graduate of Princeton University and Boston University Law School, in addition to his mass tort asbestos work, Nick also represents firm clients in a wide variety of industries, including financial institutions, health care providers and health care insurers. He also defends environmental claims brought under the New York State Navigation Law. In discussing the Supreme Court’s recent decision in Kurns v. Railroad Friction Products Corp, Nick and I examine the reasoning of the majority opinon, the concurring opinion and the concurring/dissenting opinion and how the justices address plaintiff’s failure to warn and design defect claims in light of the preemption under the Locomotive Inspection Act .
On February 29, 2012, the Supreme Court issued a preemption decision in Kurns v. Railroad Friction Production Corp, an asbestos product liability case. The case is noteworthy for product liability and toxic tort practitioners because of the Court’s split analysis concerning the potential preemptive effect of federal legislation on failure to warn claims.
Plaintiff’s decedent, George Corson, was a machinist for the Chicago, Milwaukee, St. Paul and Pacific Railroad. As a machinist, his duties included the removal and replacement of asbestos-containing brake shoes and insulation on the company’s locomotives. In 2005, Corson was diagnosed with malignant mesothelioma, after which Corson sued several dozen manufacturers, including part suppliers of the railroad company’s locomotives. The trial court granted summary judgment to the railroad supplier defendants on preemption grounds and the Third Circuit affirmed. The issue before the Supreme Court was whether federal preemption should result in dismissal not just of the design defect claim, but to the failure to warn claim as well
Writing for the 6-3 majority, Justice Thomas summarily rejected Plaintiff’s argument that, as a distinct cause of action, her failure to warn claim was not preempted by federal law. Thomas reasoned that “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 the locomotive parts.” By summarily rejecting the argument and conflating failure to warn claims with defective design claims, Thomas does little to present a concrete roadmap for evaluating the preemptive effect of federal law involving product liability causes of action.
Dissenting in part and concurring in part, Justice Sotomayor more or less adopted plaintiff’s approach, drawing a distinction between failure to warn claims and design defect claims. Sotomayor reasoned that "a product may be flawlessly designed and still subject its manufacturer or seller to liability for lack of adequate instructions or warnings." Despite a scholarly analysis of product liability jurisprudence, Sotomayor did not persuasively explain how the distinction precludes the preemptive effect of the federal legislation at issue. It is noteworthy that her analysis failed to persuade six other justices on the Court. .
In practical terms, Justice Kagan’s concurring opinion possibly articulates the strongest underpinning of the majority opinion. Her preemption analysis examined the broad regulatory authority granted under the Locomotive Inspection Act. Kagan reasoned that “if an agency has the power to prohibit the use of locomotive equipment, it also has the power to condition the use of that equipment on proper warnings.” Under this reasoning, Kagan determined that because the agency could have required warnings about the equipment’s use, the petitioner’s failure to warn claim, no less than her defective design claims, was preempted. Thus, under Kagan’s preemptive analysis, regulatory silence has the same preemptive effect as explicit regulation.
This case represents an unusual application of field preemption–unusual because there is no indication that Congress intended to foreclose all state action concerning railroad safety rather than just the regulation of equipment used by the railroad. Some commentators have sought to isolate the case from other preemption jurisprudence by arguing that the outcome of the case may have been different if the Court did not feel bound by the precedent established in a 1926 Supreme Court case, Napier v. Atlantic Coast Line. Still others have argued that the case represents an usual departure for Justice Thomas, who generally narrowly construes the scope of federal power over the states.
What is intruiging for product liability defense counsel is the idea, impliedly advanced by Justice Kagan, that warnings and instructions (the part of the product conveyed in print) should be treated as just another part of a product’s design and not as the basis for an independent cause of action. For the past several decades, plaintiffs have always had two bites at the apple–defectiive design and failure to warn. If the product was flawlessly designed, they could retreat to their warning claim. If the product had terrific warnings, they could argue in the alternative that the poor design of the product could not be cured by strong warnings. If this case is interpreted by future trial courts (in a non-preemption context) to mean that a failure to warn claim should be considered as part and parcel of a defective design claim, rather than a separate claim, manufacturers will have obtained an important precedent in Kurns. Only time will tell.