Argument recap: Contending with old precedent

Imagine having to contend with precedent the Court has followed, repeatedly, over the course of eighty-five years. That was the predicament faced by counsel for the petitioners during Wednesday’s oral arguments in Kurns v. Railroad Friction Products Corp., which I previewed earlier this week.

At issue in Kurns is whether the Locomotive Inspection Act (LIA) preempts state-law torts relating to locomotive repairs. The petitioners in the case are the widow and estate of George Corson, who died as a result of his exposure to asbestos at his job repairing locomotives. The question is whether their failure-to-warn and negligence claims against the manufacturers of the locomotives are preempted because Congress, in the LIA, “clearly manifested” its intent to “occupy the entire field of regulating locomotive equipment.”

The key disagreement between the parties is whether the Court’s 1926 decision in Napier v. Atlantic Coast Line R.R. Co. applies to this case. Both the Justices and the parties spent significant time at the oral argument haggling over the significance of one sentence from Napier, in which the Court explained that preemption “extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.”

Appearing on behalf of the petitioners, David C. Frederick argued that the Court’s language in Napier was limited to state-law claims that only implicate a locomotive’s “fitness for service.” The Chief Justice and Justice Scalia were unconvinced, as was Justice Breyer, who emphasized that “however this might come out today if Napier were decided again, it did come out the way it did. And Justice Brandeis did write it, and it’s been the law a long time.”  When asked by Justice Breyer for a “reasonable way” to distinguish Napier, Frederick explained that the failure-to-warn claims do not affect how locomotive equipment is designed; rather, the warning claims went only to how to use the equipment safely.

Assistant to the Solicitor Sarah E. Harrington argued on behalf of the federal government, which appeared as an amicus in support of the petitioners.  She maintained that failure-to-warn claims are not subject to field preemption because they arise from injuries incurred during the repair, rather than use, of the locomotives. That view prompted Justice Scalia to ask whether “one of the purposes of the legislation, which everybody understood, was to enable engine manufacturers to be able to construct their engines without having to worry about a variety of different State requirements?” Harrington responded that the LIA’s requirements go to the design, construction, and materials of a locomotive that is actually used; to the extent that petitioners’ claims diverge with from LIA, they are subject to conflict, rather than field, preemption.  Moreover, she pointed out, petitioners’ claims would not fall within the LIA field because the LIA’s substantive standard of care only applies to locomotives that are in use.  Finally, as a side note, Harrington reminded the Court that the only question before it was that of field preemption, and she argued that any conflict preemption issues should therefore be dealt with first by the lower courts – an argument that no Justice questioned.

Arguing for respondents, Jonathan D. Hacker quickly jumped on the Court’s hesitancy to overrule its longstanding decision in Napier. Hacker rejected the other side’s efforts to limit Napier’s scope to the use of locomotive use on the line, and to distinguish this case as involving only locomotives at the repair shop. Instead, Hacker argued, Napier makes clear that the occupied field is the physical elements of the locomotive itself. He emphasized that “what States cannot do, what [Department of Transportation] has exclusive authority over is the design, the materials and the construction of the locomotive.” Because petitioners’ claims go to the physical elements of the locomotive, they were preempted by the LIA.

In between the discussion of Napier’s scope, Justice Kagan asked Hacker whether the Court “would decide Napier the same way if it came to us today.”  Hacker responded in the affirmative, explaining that parties and courts have relied on Napier for eighty-five years, and that there is every reason to think it would be decided the very same way –leaving regulatory authority for the field to federal administrative agencies, not states.

In rebuttal, Frederick attempted to cast doubt on Hacker’s assertion that the Court would still decide Napier the same way today, emphasizing that the Court’s “approach to field preemption is so different after the New Deal era than it was before the New Deal era,” when Napier was decided.  Moreover, he concluded, Napier defined the scope of the field to be preempted “in an historical context that we just don’t live in anymore . . . and there is no reason to give manufacturers a complete pass from liability to advise . . . railroads and railroad workers on how to work on their equipment in a safe way without exposing their workers to unnecessary risks.”

A decision in the case is expected by next June at the latest.