Estate of Sandra Brust and Philip Brust, Etc. v. Acf

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3431-13T4
ESTATE OF SANDRA BRUST and PHILIP
BRUST, individually and as Executor
and Executor ad Prosequendum of the
Estate of Sandra Brust,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION
v. November 19, 2015
ACF INDUSTRIES, LLC, f/k/a APPELLATE DIVISION
American Car & Foundry Co.;
AMSTED RAIL GROUP, individually
and as successor to and d/b/a
Griffin Wheel Company;
BOMBARDIER TRANSPORTATION
(HOLDINGS) USA INC.; CBS
CORPORATION, a Delaware
corporation, f/k/a Viacom, Inc.,
successor by merger to CBS
Corporation, a Pennsylvania
corporation, f/k/a Westinghouse
Electric Corp.; CARRIER
CORPORATION; CERTAINTEED CORP.,
individually and as successor-
in-interest to Gustin Bacon;
EATON CORPORATION, as successor-
in-interest to Eaton Electrical,
Inc., and Cutler-Hammer, Inc.;
FOSTER WHEELER ENERGY CORPORATION;
GENERAL ELECTRIC COMPANY; GE LEASING,
individually and as successor to ITEL
Leasing, The Pullman Leasing Company
and The Pullman Company; GRIMES
AEROSPACE CORPORATION, individually
and as successor to FL Aerospace
Corporation and Midland-Ross Corp.;
KAWASAKI RAIL CAR INC.; NEW YORK
AIR BRAKE CORPORATION; PULLMAN
TECHNOLOGY INC., individually and
as successor to The Pullman Company;
ROCKWELL AUTOMATION INC., as
successor by merger to Allen-Bradley,
Inc.; SIEMENS ENERGY & AUTOMATION,
INC., f/k/a I-T-E Circuit Breakers;
SQUARE-D COMPANY; THYSSENKRUPP BUDD CO.,
f/k/a and as successor to The Budd
Company; TRANE US, INC., f/k/a
American Standard, Inc., f/k/a
Westinghouse Air Brake Company;
TRINITY INDUSTRIES, individually and
as successor to The Pullman
Transportation Company and The Pullman
Company; UNION CARBIDE CORP.; WABTEC
CORPORATION, individually and as
successor in interest to Westinghouse
Air Brake Co. (WABCO) and MotivePower
Industries, Inc.; GOULD ELECTRONICS,
INC., individually and as successor-
in-interest to ITE Circuit Breakers;
OLD ORCHARD INDUSTRIAL CORP.,
individually and as successor-in-
interest to Vapor Corporation; and
AMSTED INDUSTRIES, INC., f/k/a
American Steel Foundries (ASF),
Defendants,
and
DELAWARE RIVER PORT AUTHORITY
(DRPA), individually and d/b/a
Port Authority Transit
Corporation (PATCO); HONEYWELL
INTERNATIONAL, INC., f/k/a
Allied Signal, Inc. as
successor-in-interest to The
Bendix Corporation; PEP BOYS-
MANNY MOE & JACK OF DELAWARE,
INC.; PNEUMO-ABEX, LLC, as
successor-in-interest to Abex
Corporation, f/k/a American Brake
Shoe Company; PORT AUTHORITY TRANSIT
CORPORATION (PATCO); and RAILROAD
2 A-3431-13T4
FRICTION PRODUCTS CORPORATION,
individually and d/b/a Cobra,
Defendants-Respondents.
Argued October 7, 2015 – Decided November 19, 2015
Before Judges Alvarez, Ostrer, and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Docket No. L-5049-11.
Jeffrey P. Blumstein argued the cause for
appellants (Szaferman, Lakind, Blumstein &
Blader, P.C. and Levy Konigsberg, LLP,
attorneys; Robert E. Lytle, on the briefs).
Christopher R. Gibson argued the cause for
respondent Delaware River Port Authority and
Port Authority Transit Corporation (Archer &
Greiner, attorneys; Mr. Gibson, of counsel
and on the brief; Patrick M. Flynn, on the
brief).
John C. Garde argued the cause for
respondent Honeywell International Inc.,
f/k/a Allied Signal, Inc. as successor-in-
interest to The Bendix Corporation (McCarter
& English, LLP and Gibbons, P.C., attorneys;
Debra M. Perry, Kim M. Catullo, and Ethan D.
Stein, of counsel; Mr. Garde and Jean
Patterson, on the brief).
Walter F. Kawalec, III, argued the cause for
respondent Pep Boys – Manny Moe & Jack of
Delaware, Inc. (Marshall Dennehey Warner
Coleman & Goggin, attorneys; Paul Johnson,
Lisa Only, and Mr. Kawalec, on the brief).
Reagan W. Simpson (Yetter Coleman LLP) of
the Texas bar, admitted pro hac vice, argued
the cause for respondent Pneumo Abex, LLC
(Roy F. Viola, Jr. (Hawkins Parnell
Thackston & Young LLP), and Mr. Simpson,
3 A-3431-13T4
attorneys; Mr. Viola and Mr. Simpson, on the
brief).
David J. Bird (Reed Smith LLP) of the
Pennsylvania bar, admitted pro hac vice,
argued the cause for respondent Railroad
Friction Products Corporation (Bonner
Kiernan Trebach & Crociata, LLP, attorneys;
Mark A. Lockett, on the brief).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
Plaintiffs, the Estate of Sandra Brust and Philip Brust,
appeal from the summary judgment dismissal of their complaint.
Sandra Brust (Brust) was diagnosed with mesothelioma in October
2010, and passed away from the disease while this litigation was
pending. Plaintiffs allege Brust's father John Noga's
employment from 1970 to 1977 as a train operator, yard operator,
and supervisor with defendant Port Authority Transit Corporation
(PATCO) resulted in take-home asbestos exposure leading to her
illness.1
Noga's job duties included the repair and maintenance of
air brake systems on PATCO's multiple unit (MU) locomotives. 2 In
1
By virtue of an interstate compact between New Jersey and
Pennsylvania, defendant Delaware River Port Authority (DRPA)
owns the New Jersey tracks and right-of-way through which PATCO
operates the high speed line between Lindenwold, New Jersey, and
Philadelphia, Pennsylvania.
2
In addition to PATCO and the DRPA, the "railroad defendants"
include Railroad Friction Products Corporation (RFPC), which
(continued)
4 A-3431-13T4
the process, asbestos dust would then be released into the air
and land on his work clothes. Upon returning home, Noga would
play with his children, including Brust, who was born May 23,
1963, before changing or showering.
Additionally, plaintiffs claim Brust's mesothelioma may
have been caused by her exposure to asbestos dust as Noga
replaced automobile brakes on cars he worked on after hours. 3
Between 1963 and 1978, when the family moved to Georgia, Noga
would buy an average of one used car per year, which he would
repair for resale.
From 1970 to 1985, starting at about age seven, Brust would
help her mother wash her father's clothes, including his PATCO
uniform. Brust's expert opined that she developed mesothelioma
as a result of secondary exposure to friable asbestos fibers
through direct contact with her father and while laundering his
asbestos-laden clothes.
(continued)
distributed Cobra brand locomotive air brake shoes as well as
Thyssenkrupp Budd Company (Budd) and Pneumo-Abex, LLC (Abex),
among others. RFPC supplied Budd with locomotive air brakes
manufactured by RFPC; the replacement brake shoes were
manufactured and supplied by Abex. Both incorporate asbestos
into their design.
3
Included in these counts are the automotive defendants: Pep
Boys–Manny Moe and Jack of Delaware, Inc., Honeywell, formerly
known as Allied Signal, Inc., successor-in-interest to The
Bendix Corporation, and Abex as successor-in-interest of Abex
Corporation, formerly known as American Brake Shoe Company.
5 A-3431-13T4
In deciding the railroad defendants' motion for summary
judgment, Judge Vincent LeBlon concluded that federal
legislation and precedent preempt state tort claims related to
locomotives. He rejected plaintiffs' argument that their claim
was exempt from preemption because PATCO was not regulated by
federal transportation agencies or regulations.
As to the automotive defendants, Judge LeBlon found that
there was no evidence that Brust's contacts with automotive
brake dust were sufficiently frequent, regular, and proximate to
demonstrate causation. Thus, plaintiffs' proofs did not
establish the elements of a prima facie case.
In sum, the judge granted the railroad defendants' motions
for summary judgment as a matter of law. He granted summary
judgment to the automotive defendants because, even when the
facts were viewed in the light most favorable to plaintiffs, no
genuine issue of material fact remained which could expose them
to any liability. We affirm.
I.
Rule 4:46-2(c) provides that summary judgment must be
granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
6 A-3431-13T4
entitled to a judgment . . . as a matter of law." The
appropriate inquiry is "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail . . . ."
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
On appeal, we review summary judgment orders de novo,
utilizing the same standards applied by the trial courts. See
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,
374 (2010).
II.
Plaintiffs contend on appeal, as they did before the Law
Division judge, that their state law claims against PATCO, DRPA,
RFPC, and Abex, arising out of the design and manufacture of
asbestos-contaminated locomotive brake shoes, were not preempted
by federal law. The basis for their argument is that PATCO is
an urban rapid transit operation, not a railroad, not subject to
federal railroad safety regulations or to federal law generally.
A.
A brief discussion of the doctrine of preemption is
warranted. It arises from the supremacy clause, which states
that federal law "shall be the supreme Law of the Land; and the
7 A-3431-13T4
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding." U.S. Const. art. VI, cl. 2.
"Where a state statute conflicts with, or frustrates,
federal law, the former must give way." CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 663, 113 S. Ct. 1732, 1737, 123 L. Ed.
2d 387, 396 (1993). "The ultimate question is always whether
Congress intended to preempt the subject matter of the state
legislation." Chamber of Commerce v. State, 89 N.J. 131, 142
(1982); see also Comm. to Recall Robert Menendez from the Office
of U.S. Senator v. Wells, 204 N.J. 79, 103 (2010) (discussing
federal preemption). "Congress may preempt state common law as
well as state statutory law through federal legislation." Dewey
v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 77 (1990) (citing
Chicago N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,
325-26, 101 S. Ct. 1124, 1134, 67 L. Ed. 2d 258, 270 (1981)).
There are three categories of preemption: 1) express
preemption as contained in the specific language of the federal
law; 2) implied or "field preemption" where Congress has
exclusively occupied the field of regulation; and 3) conflict
preemption where state law conflicts with federal law. Kurns v.
Railroad Friction Products Corp., ___ U.S. ___, 132 S. Ct. 1261,
1265-66, 182 L. Ed. 2d 116, 123 (2012); English v. Gen. Elec.
8 A-3431-13T4
Co., 496 U.S. 72, 78-79, 110 S. Ct. 2270, 2275, 110 L. Ed. 2d
65, 74 (1990); R.F. v. Abbott Labs., 162 N.J. 596, 618 (2000);
Dewey, supra, 121 N.J. at 77-78.
Field preemption, at issue here, occurs "where the scheme
of federal regulation is so pervasive as to make reasonable the
inference that Congress left no room for the States to
supplement it . . . ." Gonzalez v. Ideal Tile Imp. Co., 184
N.J. 415, 419 (2005) (quoting Gade v. Nat'l Solid Wastes Mgmt.
Ass'n, 505 U.S. 88, 98, 112 S. Ct. 2374, 2383, 120 L. Ed. 2d
73, 84 (1992)), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042,
163 L. Ed. 2d 857 (2006).
B.
Since 1926, it has been settled that in enacting the
Locomotive Inspection Act (LIA), 49 U.S.C.A. §§ 20701-20703,
Congress intended to occupy the entire field of locomotive
equipment. Congress thereby preempted both state legislation
that would affect the design, construction, and material of
every part of the locomotive and its appurtenances, Napier v.
Atl. Coast Line R.R. Co., 272 U.S. 605, 611, 47 S. Ct. 207, 209,
71 L. Ed. 432, 438 (1926), and state law tort claims for
defective design of locomotive equipment, Kurns, supra, ___ U.S.
at ___, 132 S. Ct. at 1265-66, 182 L. Ed. 2d at 123.
9 A-3431-13T4
Preemption under the LIA "allows railroad carriers to abide
by a single set of national equipment regulations, instead of
having to meet different standards and, potentially, to change
equipment when a train crosses state lines." Del. & Hudson R.R.
Co. v. Knoedler Mfrs., Inc., 781 F.3d 656, 666 (3d Cir.), cert.
denied, ___ U.S. ___, ___ S. Ct. ___, 193 L. Ed. 2d ___ (2015).
This broad preemptive sweep is necessary to
maintain uniformity of railroad operating
standards across state lines. Locomotives
are designed to travel long distances, with
most railroad routes wending through
interstate commerce. 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."
[Law v. Gen. Motors Corp., 114 F.3d 908, 910
(9th Cir. 1997) (quoting S. Pac. Transp. Co.
v. Pub. Util. Comm'n, 9 F.3d 807, 811 (9th
Cir. 1993)).]
C.
The LIA, originally enacted in 1911 as the "Locomotive
Boiler Inspection Act" (BIA),4 provides that:
4
The BIA was enacted in 1911 when railroads used steam engines
and initially applied only to "boilers and appurtenances
thereto," but in 1915 was amended to "include the entire
locomotive and tender and all parts thereof." Napier, supra,
272 U.S. at 608, 47 S. Ct. at 208, 71 L. Ed. at 437.
10 A-3431-13T4
A railroad carrier[5] 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;
(2) have been inspected as required under
this chapter . . . and regulations
prescribed by the Secretary of
Transportation under this chapter . . .; and
(3) can withstand every test prescribed by
the Secretary under this chapter . . . .
[49 U.S.C.A. § 20701.]
An interstate railroad carrier has an absolute duty under
the LIA to maintain the parts and appurtenances of its
locomotives in safe and proper condition. Lilly v. Grand Trunk
W. R.R. Co., 317 U.S. 481, 485, 63 S. Ct. 347, 351, 87 L. Ed.
411, 415 (1943). The "prime purpose" of the LIA is "the
protection of railroad employees and perhaps also of passengers
and the public at large . . . from injury due to industrial
accident." Urie v. Thompson, 337 U.S. 163, 191, 69 S. Ct. 1018,
1035, 93 L. Ed. 1282, 1304 (1949).
The Secretary of Transportation (Secretary), pursuant to
the LIA, has the authority to regulate the design and inspection
of all locomotive parts, including air brake systems. The
5
A "railroad carrier" is defined as "a person providing railroad
transportation." 49 U.S.C.A. § 20102(3).
11 A-3431-13T4
Secretary has promulgated highly detailed regulations
establishing air brake system calibration, maintenance, and
testing, 49 C.F.R. § 229.29 (2015), 49 C.F.R. § 238.309 (2015),
and safety and design, 49 C.F.R. §§ 229.46 to 229.59 (2015).
Federal regulations define a locomotive and also define an MU
locomotive. 49 C.F.R. § 229.5 (2015). The federal railroad
safety laws, including the LIA, apply only to "railroads." 49
U.S.C.A. § 20101. The term "railroad" is not defined in the
LIA, but is defined by federal regulation, 49 C.F.R. 229.5
(2014), in accord with the Federal Railroad Safety Act (FRSA),
49 U.S.C.A. §§ 20102 to 20155,6 to exclude "rapid transit
operations within an urban area that are not connected to the
general railroad system of transportation." "Urban rapid
transit operations," such as the high speed line operated by
PATCO, are not defined in the federal railroad safety statutes
or regulations. See Chicago Transit Auth. v. Flohr, 570 F.2d
1305, 1311 (7th Cir. 1977) (Chicago Transit Authority is not a
"railroad" as the term is used in the Railroad Safety Act of
1970 and thus not subject to Federal Railroad Administration
(FRA) "railroad" regulations).
6
FRSA contains a preemption provision, which provides that
"[l]aws, regulations, and orders related to railroad safety
. . . shall be nationally uniform to the extent practicable,"
but allows State law causes of action in limited circumstances.
49 U.S.C.A. § 20106. The LIA does not contain such a provision.
12 A-3431-13T4
By delegation from the Secretary, the FRA enforces federal
railroad safety statutes, including the LIA. 49 U.S.C.A. §
20702; 49 U.S.C.A. § 20103; 49 C.F.R. 229.1 (2015). The FRA has
jurisdiction over all rail operations except rapid transit
operations in an urban area that are not connected to the
general railroad system of transportation. See 49 U.S.C.A. §
20102(2).
Urban rapid transit operations are not subject to federal
regulations prescribing safety standards for locomotives and its
appurtenances under the LIA, 49 C.F.R. §§ 229.3(b)(2), 229.5
(2015), or other federal safety regulations. See, e.g., 49
C.F.R. § 213.3(b)(3) (2015) (tracks); 49 C.F.R. § 215.5(f)
(2015) (freight cars); 49 C.F.R. § 217.3(b)(2) (2015) (trains);
49 C.F.R. § 218.3(b)(2) (2015) (operating regulations); 49
C.F.R. § 219.5 (drug and alcohol use) (2015); 49 C.F.R. §
220.3(b)(2) (2015) (communication); 49 C.F.R. § 230.2(b)(3)
(2015) (steam locomotives); and 49 C.F.R. § 232.3(c)(4) (2015)
(brake systems for freight trains). The Federal Transit
Administration (FTA), an agency of the United States Department
of Transportation, has jurisdiction, under its rules governing
"rail fixed guideway systems," over rapid transit systems not
otherwise subject to FRA regulation.
13 A-3431-13T4
Federal law requires a "state to oversee the safety and
security of rail fixed guideway systems through a designated
oversight agency." 49 C.F.R. § 659.1 (2014). A "rail fixed
guideway system" is defined as "any light, heavy, or rapid rail
system" not regulated by the FRA. 49 C.F.R. § 659.5 (2015).
The New Jersey Department of Transportation (NJDOT) is this
state's oversight agency. N.J.A.C. 16:53E-1.1. In fulfilling
this responsibility, the NJDOT has adopted rules, regulations,
and guidelines accomplishing that goal. It is undisputed that
PATCO is an urban rapid transit operation subject in our state
to general oversight by NJDOT.
D.
The question plaintiffs raise is whether the LIA preempts
state law claims arising from locomotive equipment even if the
entity operating the equipment is "not subject to federal
railroad regulations." We answer the question in the
affirmative.
In our view, state law claims for defective design of the
"locomotive equipment," and for failure to warn about its risks,
fall within the field preempted by the LIA as defined in Napier,
supra, 272 U.S. at 611, 47 S. Ct. at 209, 71 L. Ed. at 438. The
preempted field is the subject of locomotive equipment,
regardless of the entity using it. The notion was recently
14 A-3431-13T4
reaffirmed in Kurns, supra, ___ U.S. at ___, 132 S. Ct. at 1265-
66, 182 L. Ed. 2d at 123.
In Napier, the United States Supreme Court found a Georgia
statute that required locomotives to have an automatic fire
door, and a Wisconsin statute that required locomotives to have
a cab curtain, were preempted by the LIA because the statutes
were directed at the "equipment of locomotives." Napier, supra,
272 U.S. at 612, 47 S. Ct. at 210, 71 L. Ed. at 439. The LIA
preempted "the entire field of regulating locomotive equipment,"
and the power delegated to the Interstate Commerce Commission
(ICC), the predecessor to the FRA, extended "to the design, the
construction and the material of every part of the locomotive
and tender and of all appurtenances." Id. at 611, 47 S. Ct. at
209, 71 L. Ed. at 438.
The Court specifically rejected the states' contention that
the scope of the preempted field was to "be determined by the
object sought through the legislation," which was to promote the
health and comfort of railroad engineers, "rather than the
physical elements affected by it." Id. at 612, 47 S. Ct. 209,
71 L. Ed. 439. The federal and state statutes were "directed to
the same subject -- the equipment of locomotives." Ibid. Thus,
because the state laws, "however commendable or however
different their purpose," operated on the same physical object
15 A-3431-13T4
as the LIA, the laws fell in the preempted field. Id. at 613,
47 S. Ct. at 210, 71 L. Ed. at 439.
After the decision in Napier, Congress enacted various
statutes amending the LIA, transferring the ICC's regulatory
authority to the Department of Transportation, enacting the
FRSA, and codifying all federal railroad statutes under Title
49. Congress did not alter the LIA's broad preemptive field.
A number of state courts since have held that the broad
field preempts state tort law claims against manufacturers of
locomotive equipment for injuries sustained by asbestos
exposure. See Wright v. Gen. Elec. Co., 242 S.W.3d 674, 680
(Ky. Ct. App. 2007) (the LIA state common-law tort claims
against locomotive manufacturers of brake shoes and other
equipment are preempted under the LIA); Darby v. A-Best Prods.
Co., 811 N.E.2d 1117, 1125-26 (Ohio 2004) (the LIA preempts
state law tort claims against manufacturers of railroad
locomotives for injuries caused by exposure to asbestos), cert.
denied, 543 U.S. 1146, 125 S. Ct. 1297, 161 L. Ed. 2d 106
(2005); In re W. Va. Asbestos Litig., 592 S.E.2d 818, 824 (W.
Va. 2003) (state law tort claims against manufacturers of parts
or components of railroad locomotives are preempted by federal
law under the LIA).
16 A-3431-13T4
In 2012, the Court in Kurns reaffirmed Napier. In Kurns
the decedent, George M. Corson, was a former locomotive
repairman. Plaintiffs alleged he developed mesothelioma as a
result of his exposure to asbestos while employed installing
brake shoes on locomotives and stripping insulation from
locomotive boilers. Kurns, supra, ___ U.S. at ___, 132 S. Ct.
at 1264, 182 L. Ed. 2d at 122. The plaintiffs brought
Pennsylvania state law tort claims for defective design and
failure to warn against RFPC, and other manufacturers. Ibid.
Coincidentally, RFPC is a defendant in this case, and the
manufacturer and distributor of Cobra brand locomotive brake
shoes containing asbestos.
In Kurns, the Court reaffirmed the breadth of the preempted
field established in Napier, holding that the plaintiffs' claims
were preempted because they were directed at "the subject of
locomotive equipment." Id. at ___, 132 S. Ct. at 1270, 182 L.
Ed. 2d at 128. The plaintiffs' defective-design claims were
found to fall "within the pre-empted field because they would
impose state-law requirements on a locomotive's physical
makeup." Id. at ___, 132 S. Ct. at 1272, 182 L. Ed. 2d at 130
(Sotomayor, J., concurring in part, dissenting in part). In
other words, the Court in Kurns rejected the plaintiffs' attempt
to redefine the preemptive field established in Napier, which
17 A-3431-13T4
had constituted settled law for eighty-five years. Id. at ___,
132 S. Ct. at 1268-69, 182 L. Ed. 2d at 125-27.
Significant to this appeal, the Court rejected the
plaintiffs' argument that their state law claims against the
manufacturers of locomotive equipment fell outside the LIA's
preemptive field because the manufacturers were not subject to
regulation under the LIA at the time the plaintiff was exposed
to asbestos.7 Id. at ___, 132 S. Ct. at 1268-69, 182 L. Ed. 2d
at 126-27.
The Court described that position as "inconsistent with
Napier," because
Napier defined the field pre-empted by the
LIA on the basis of the physical elements
regulated —— "the equipment of locomotives"
—— not on the basis of the entity directly
subject to regulation. . . . Because
petitioners' claims are directed at the
equipment of locomotives, they fall within
the pre-empted field.
[Id. at ___, 132 S. Ct. at 1269, 182 L. Ed.
2d at 127 (emphasis added).]
The Court went on to state:
Petitioners' proposed rule is also
contrary to common sense. Under
7
The LIA as originally enacted subjected only "common carriers"
to civil penalties, but after the plaintiffs' exposure in Kurns,
it was revised under the "Rail Safety Improvement Act of 1988,"
102 Stat. 624 § 14, later repealed and recodified at 49 U.S.C.A.
§ 21303, to provide that an "act by an individual that causes a
railroad carrier to be in violation is a violation."
18 A-3431-13T4
petitioners' approach, a State could not
require railroads to equip their locomotives
with parts meeting state-imposed
specifications, but could require
manufacturers of locomotive parts to produce
only parts meeting those state-imposed
specifications. We rejected a similar
approach in an express pre-emption context
in Engine [Manufacturers] Ass'n. v. South
Coast Air Quality Management [District], 541
U.S. 246, 124 S. Ct. 1756, 158 L. Ed. 2d 529
(2004). There, a state entity argued that
its rules prohibiting the purchase or lease
of vehicles that failed to meet stringent
emissions requirements were not pre-empted
by the Clean Air Act, 42 U.S.C. §7543(a),
because the rules in question were aimed at
the purchase of vehicles, rather than their
manufacture or sale. . . . We observed,
however, that "treating sales restrictions
and purchase restrictions differently for
pre-emption purposes would make no sense,"
because the "manufacturer's right to sell
federally approved vehicles is meaningless
in the absence of a purchaser's right to buy
them." Id. at 255, 124 S. Ct. 1756, 158 L.
Ed. 2d 529. Similarly, a railroad's ability
to equip its fleet of locomotives in
compliance with federal standards is
meaningless if manufacturers are not allowed
to produce locomotives and locomotive parts
that meet those standards. Petitioners'
claims thus do not avoid pre-emption simply
because they are aimed at the manufacturers
of locomotives and locomotive parts.
[Ibid.]
Accordingly, the Court concluded that the LIA preempts state
tort claims based on injuries caused by exposure to asbestos
used in locomotive brake shoes even if the manufacturers were
not subject to the LIA regulation. Ibid.
19 A-3431-13T4
The Court in Kurns also rejected plaintiffs' argument that
their claims did not fall within the preemptive field because
they arose out "of the repair and maintenance of locomotives,"
as opposed to the "use of locomotives on a railroad line." Id.
at ___, 132 S. Ct. at 1267, 182 L. Ed. 2d at 125. The
plaintiffs contended that "the scope of the field pre-empted by
the LIA is coextensive with the scope of the Federal
Government's regulatory authority under the LIA," which did "not
extend to the regulation of hazards arising from the repair or
maintenance of locomotives." Ibid.
Nonetheless, the Court refused to "redefine" the preempted
field:
In Napier, the Court held that Congress, in
enacting the LIA, "manifest[ed] the
intention to occupy the entire field of
regulating locomotive equipment," and the
Court did not distinguish between hazards
arising from repair and maintenance as
opposed to those arising from use on the
line. . . . The pre-empted field as defined
by Napier plainly encompasses the claims at
issue here. Petitioners' common-law claims
for defective design and failure to warn are
aimed at the equipment of locomotives.
Because those claims "are directed to the
same subject" as the LIA, Napier dictates
that they fall within the pre-empted field
. . . .
[Id. at ___, 132 S. Ct. at 1267-68, 182 L.
Ed. 2d at 125-26 (emphasis added).]
20 A-3431-13T4
Finally, the Court rejected the plaintiffs' argument that
their failure-to-warn claims did not fall within the preempted
field because the basis for liability was the failure to provide
adequate warnings, not the design of the product. Id. at ___,
132 S. Ct. at 1268, 182 L. Ed. 2d at 126.
On this point, the Court said:
A failure-to-warn claim alleges that the
product itself is unlawfully dangerous
unless accompanied by sufficient warnings or
instructions. Restatement (Third) of Torts:
Products Liability §2(c) (1997) (A failure-
to-warn claim alleges that a product is
defective "when the foreseeable risks of
harm posed by the product could have been
reduced or avoided by the provision of
reasonable instructions or warnings by the
seller or other distributor, . . . and the
omission of the instructions or warnings
renders the product not reasonably safe");
see also id., Comment l, at 33 ("Reasonable
designs and instructions or warnings both
play important roles in the production and
distribution of reasonably safe products").
Thus, 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 locomotive parts and appurtenances."
. . . . Because petitioners' failure-to-
warn claims are therefore directed at the
equipment of locomotives, they fall within
the pre-empted field defined by Napier,
supra, 272 U.S. at 612, 47 S. Ct. 207, 71 L.
Ed. 432.
[Id. at ___, 132 S. Ct. at 1268, 182 L. Ed.
2d at 126.]
21 A-3431-13T4
Here, it is undisputed that PATCO's MU locomotives,
supplied by Budd, were "locomotives" as defined in 49 C.F.R. §
229.5 (2015), which ran on standard gauge track —— the gauge on
which most railroads, including Amtrak, operate. Moreover, it
is undisputed that the "locomotive equipment" at issue —— the
locomotive air brake shoes installed on PATCO locomotives ——
were designed and manufactured as components of a locomotive air
brake system, designed for use on locomotives operated by
railroad carriers subject to regulation under the LIA. See 49
C.F.R. 232.5 (2015) ("Air brake means a combination of devices
operated by compressed air, arranged in a system, and controlled
manually, electrically, electronically, or pneumatically, by
means of which the motion of a railroad car or locomotive is
. . . arrested"). See also Perry v. A.W. Chesterton, Inc., 985
F. Supp. 2d 669, 675-76 (E.D. Pa. 2013) (the plaintiff's state
law claims pertaining to exposure to asbestos-containing brake
shoes located on railcars are preempted under the LIA). In
fact, the locomotive equipment was physically indistinguishable
from the equipment in Kurns —— that is, Cobra brand locomotive
air brake shoes manufactured by RFPC and designed for the air
brake system of a locomotive capable of travelling on a standard
gauge track.
22 A-3431-13T4
Because plaintiffs' negligence and products liability
claims are directed at "the subject of locomotive equipment,"
they are therefore preempted under the sweeping field preemption
adopted in Napier, and reaffirmed in Kurns. Plaintiffs' claims
are preempted as state actions that would affect "the design,
the construction, and the material" of locomotives, including
claims for failure-to-warn. Kurns, supra, ___ U.S. at ___, 132
S. Ct. at 1267, 182 L. Ed. 2d at 124.
That the locomotive equipment operated by PATCO was a rapid
transit operation not subject to the LIA regulation does not
undercut the analysis. Kurns defines the preempted field as the
locomotive equipment, not by the entity that purchases or uses
the equipment. Id. at ___, 132 S. Ct. at 1267-68, 182 L. Ed. 2d
at 125. In Kurns, the preempted field was not coextensive with
the scope of the federal government's regulatory authority under
the LIA. But that fact was found to be irrelevant to the
application of the preemption doctrine. Id. at ___, 132 S. Ct.
at 1267-69, 182 L. Ed. 2d at 125-27.
This broad field of preemption ensures uniformity of
railroad equipment, an important safety and practical
consideration given the national distribution of products
manufactured for use in the industry. Focusing on equipment, as
was the case in Napier and Kurns, ensures that all locomotive
23 A-3431-13T4
equipment, regardless of where or by which entity it is used,
meets federal safety standards. Creating an exception based on
the classification of the operation at the time of the injury
would conflict with the conclusions in Kurns, would threaten
uniformity, and would complicate the straightforward equipment
preemption that has remained unchanged since 1926. We therefore
reject plaintiffs' argument that because PATCO's operations were
not subject to federal regulation, their state court claims
should survive.
Motions for summary judgment should be granted where, as a
matter of law, the moving party is clearly entitled to judgment.
In this case the railroad defendants must prevail because
Congress exclusively occupies the field including the
manufacture of locomotive brakes. We therefore hold plaintiffs'
state claims are preempted by federal law, and do not reach
plaintiffs' additional claims of error as to the railroad
defendants.8
8
This broad preemptive field leaves plaintiffs without a remedy,
however, until Congress amends the LIA we are powerless "to
prevent such an injustice." See Craner v. Cedar Rapids & Iowa
City Ry., 395 U.S. 164, 167, 89 S. Ct. 1706, 1708, 23 L. Ed. 2d
176, 180 (1969) (In the context of whether state-law defenses
are available to a railroad being sued for injuries caused by
its failure to adhere to the Federal Appliance Safety Act of
1893, 27 Stat. 531, 45 U.S.C. § 2, the Court acknowledged the
unfairness of barring a non-federal employee from the recovery
that would have been available to a federal employee for
(continued)
24 A-3431-13T4
III.
Plaintiffs contend that the judge erred in ruling that
plaintiffs did not present sufficient evidence of Brust's
secondary exposure to asbestos-contaminated automobile brake
shoes and in granting summary judgment to the automotive
defendants on that basis. Again, we disagree.
In granting Honeywell's motion, the trial judge found:
[Brust] testified that the first time she
saw her father perform a brake job was
around 1970 and the family moved from New
Jersey to Georgia in 1978. Additionally, []
Noga testified that he performed
approximately one brake job per year. []
giving [Brust] all favorable inferences the
total number of exposures from all brake
jobs utilizing various brake pad
manufacturers performed by her father is
eight.
Furthermore, [Noga] when asked was
unable to quantify the number of times he
performed a brake job using brake products
manufactured, sold, and/or distributed by
Bendix [now Honeywell]. [] Noga's testimony
lacks the specificity required by the
standard outlined by the court in Sholtis
[v. Am. Cyanamid Co., 238 N.J. Super. 8, 30-
31 (App. Div. 1989)]. Therefore, Plaintiff
has failed to submit evidence that would
allow [] a reasonable jury to find that []
Brust was exposed to friable asbestos on a
(continued)
performing the same work "in the same manner" as the non-federal
employee, but added, "It is not permitted the Court to rewrite
the statute." Id. at 167, 89 S. Ct. at 1708, 23 L. Ed. 2d at
180).
25 A-3431-13T4
regular and frequent basis in close
proximity to Defendant's product.
The judge granted Abex's motion for summary judgment, regarding
its automobile brake shoes, on the same basis.
When the judge granted Pep Boys' motion for summary
judgment,9 he reiterated Brust's deposition testimony:
that she witnessed her father perform brake
jobs on the vehicles infrequently maybe []
once every two or three years. Therefore,
given that the relevant time period for
exposure was at most [eight] years, a
reasonable inference would have been that
[Brust] was present for approximately [two]
to [three] brake jobs performed by her
father.
It is undisputed that Brust assisted in washing her
father's clothes. The judge opined, however, that even when
viewing the facts in the light most favorable to her, nothing in
the record established that her illness resulted from exposure
during "Noga's use of asbestos containing brakes sold and/or
distributed by Pep Boys."
In a products liability failure-to-warn case, a plaintiff
must prove that: 1) the product was defective; 2) the defect
existed when the product left the defendant's control; 3) the
defect caused injury to a reasonably foreseeable user; and
4) the defect was the absence of warning that the product can
9
This was actually a motion for reconsideration, as the original
motion for summary judgment was denied.
26 A-3431-13T4
potentially cause injury. James v. Bessemer Processing Co., 155
N.J. 279, 296 (1998); Coffman v. Keene Corp., 133 N.J. 581, 593-
94 (1993).
In an asbestos failure-to-warn case, the plaintiff must
also prove two types of causation: product-defect and medical
causation. Becker v. Baron Bros., 138 N.J. 145, 152 (1994);
Coffman, supra, 133 N.J. at 594; Hughes v. A.W. Chesterton Co.,
435 N.J. Super. 326, 337 (App. Div.), certif. denied, 220 N.J.
41 (2014).
"Proof of direct contact 'is almost always lacking,' and
need not be proven by direct evidence of asbestos exposure."
Hughes, supra, 435 N.J. Super. at 344 (citation omitted)
(quoting James, supra, 155 N.J. at 301).
Regardless, to establish medical causation, a plaintiff
must demonstrate that the exposure to the defendant's asbestos
products was a "substantial factor" in causing the disease.
James, supra, 155 N.J. at 299. New Jersey courts, as well as
courts in a majority of other jurisdictions, James, supra, 155
N.J. at 302-04, look to the "frequency, regularity, and
proximity" of exposure as pronounced in Sholtis, supra, 238 N.J.
Super. at 28. Assessment of those circumstances determines
whether exposure to the defendant's asbestos-containing product
was a "substantial factor" in causing the alleged injury.
27 A-3431-13T4
Hughes, supra, 435 N.J. Super. at 337-38; Provini v.
Asbestospray Corp., 360 N.J. Super. 234, 239 (App. Div. 2003).
Nonetheless, the frequency, regularity and proximity test
"'is not a rigid test with an absolute threshold level necessary
to support a jury verdict.'" James, supra, 155 N.J. at 302
(quoting Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir.
1992)). "The phraseology should not supply 'catch words' [and]
the underlying concept should not be lost." Sholtis, supra, 238
N.J. Super. at 29.
We held in Sholtis that "a plaintiff only need produce
evidence from which a fact-finder, after assessing the proof of
frequency and intensity of plaintiff's contacts with a
particular manufacturer's friable asbestos, could reasonably
infer toxic exposure." Ibid. "Under this test, plaintiff
cannot rest on evidence which merely demonstrates that a
defendant's asbestos product was present in the workplace or
that he had 'casual or minimal exposure' to it." Kurak v. A.P.
Green Refactories Co., 298 N.J. Super. 304, 314 (App. Div.)
(quoting Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227, 236
(App. Div. 1994)), certif. denied, 152 N.J. 10 (1997).
Thus, in order to prove medical causation in this matter,
plaintiffs must provide sufficient evidence from which a
reasonable jury could infer that from 1970 to 1978, Brust was
28 A-3431-13T4
exposed to asbestos-contaminated brakes manufactured by
Honeywell and Abex, and sold by Pep Boys, frequently, regularly,
and while she was in close proximity to those products. Viewing
plaintiffs' evidence in the most favorable light, a jury could
find that Noga replaced the brake shoes on eight cars from 1970
to 1978, and that both the old brake shoes, about which nothing
is known, and the new brakes shoes were contaminated with
asbestos. During those eight years, Brust was exposed to
asbestos through contact with her father while he handled
asbestos-contaminated brake shoes on at most four occasions, and
through washing his clothes on at most eight occasions.
Although Noga purchased most of the brake shoes from Pep
Boys, he could not recall the names of the manufacturers of the
replaced brake shoes, where most of the dust originated. He
could not quantify the number of times he installed new Abex,
Bendix, or Raybestos10 brake shoes.
Plaintiffs contend from this testimony that "the evidence
would only support a finding that one set of brakes Noga
purchased at Pep Boys was manufactured by Honeywell's
predecessor, Bendix, and one other set by Abex." And it is
10
Raymark Industries, Inc., a manufacturer of asbestos-
contaminated automotive brakes, filed a Chapter 11 bankruptcy
petition in 1998, and is not named as a defendant in this case.
In re Raytech Corp., 261 B.R. 350, 353 (Bankr. D. Conn. 2001).
29 A-3431-13T4
undisputed that mesothelioma can develop from minimal exposure
to asbestos. But the exposures established by this record are
so few and so limited that they simply fail to meet the
"frequency, regularity, and proximity" test.
That test was satisfied in Olivo v. Owens-Illinois, Inc.,
186 N.J. 394, 399 (2006), for example, where the plaintiff
alleged she developed mesothelioma as a result of laundering her
husband's asbestos-laden work clothes over a forty-year period.
Similarly, in Anderson v. A.J. Friedman Supply Co., 416 N.J.
Super. 46, 54 (App. Div. 2010), certif. denied, 205 N.J. 518
(2011), we found summary judgment should not be granted where
the plaintiff developed mesothelioma from laundering her
husband's asbestos-laden work clothes over a thirty-year period.
And, in Kurak, supra, 298 N.J. Super. at 310, 321-22, sufficient
proofs were established by the plaintiff's work as a laboratory
technician in close proximity to asbestos-contaminated pipe
insulation for at least thirteen years.
Hence, we agree with Judge LeBlon that even if Brust was
exposed to one of each of the automotive defendants' products
over an eight-year period, assuming they were sold by Pep Boys,
she failed to establish sufficient contacts to meet the
frequency, regularity, and proximity test. See, e.g., Chavers
v. Gen. Motors Corp., 79 S.W.3d 361, 370 (Ark. 2002) (one-time
30 A-3431-13T4
exposure does not satisfy regularity and frequency test). There
is no genuine issue as to any material fact. Viewing the
circumstances in the light most favorable to plaintiffs, Brust's
exposure lacked the requisite frequency, regularity, and
proximity entitling the automotive defendants to summary
judgment as a matter of law.
Affirmed.
31 A-3431-13T4