KURNS v. RAILROAD FRICTION PRODUCTS CORP.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–879

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GLORIA GAIL KURNS, executrix of the ESTATE OF GEORGE M. CORSON, DECEASED, et al., PETITIONERS v. RAILROAD FRICTION PRODUCTS CORPORATION et al.

on writ of certiorari to the united states court of appeals for the third circuit

[February 29, 2012]

Justice Thomas delivered the opinion of the Court.

This case requires us to determine whether petitioners’ state-law tort claims for defective design and failure to warn are pre-empted by the Locomotive Inspection Act (LIA), 49 U. S. C. §20701 et seq. The United States Court of Appeals for the Third Circuit determined that petitioners’ claims fall within the field pre-empted by that Act, as that field was defined by this Court’s decision in Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926) . We agree.

I

George Corson was employed as a welder and machinist by the Chicago, Milwaukee, St. Paul & Pacific Railroad from 1947 until 1974. Corson worked in locomotive repair and maintenance facilities, where his duties included installing brakeshoes on locomotives and stripping insulation from locomotive boilers. In 2005, Corson was diagnosed with malignant mesothelioma.

In 2007, Corson and his wife filed suit in Pennsylvania state court against 59 defendants, including respondents Railroad Friction Products Corporation (RFPC) and Viad Corp (Viad). According to the complaint, RFPC distributed locomotive brakeshoes containing asbestos, and Viad was the successor-in-interest to a company that manufactured and sold locomotives and locomotive engine valves containing asbestos. Corson alleged that he handled this equipment and that he was injured by exposure to asbestos. The complaint asserted state-law claims that the equipment was defectively designed because it contained asbestos, and that respondents failed to warn of the dangers of asbestos or to provide instructions regarding its safe use. After the complaint was filed, Corson passed away, and the executrix of his estate, Gloria Kurns, was substituted as a party. Corson’s widow and the executrix are petitioners here.

Respondents removed the case to the United States District Court for the Eastern District of Pennsylvania and moved for summary judgment. Respondents argued that petitioners’ state-law claims were pre-empted by the LIA. The District Court agreed and granted summary judgment for respondents. See Kurns v. A. W. Chesterton, Civ. Action No. 08–2216 (ED Pa., Feb. 3, 2009), App. to Pet. for Cert. 39a. The Third Circuit affirmed. See Kurns v. A. W. Chesterton, Inc., 620 F. 3d 392 (2010). We granted certiorari. 563 U. S. ___ (2011).

II

Congress enacted the predecessor to the LIA, the Boiler Inspection Act (BIA), in 1911. The BIA made it unlawful to use a steam locomotive “unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate . . . without unnecessary peril to life or limb.” Act of Feb. 17, 1911, ch. 103, §2, 36Stat. 913–914. In 1915, Congress amended the BIA to apply to “the entire locomotive and tender and all parts and appurtenances thereof.” 1 Act of Mar. 4, 1915, ch. 169, §1, 38Stat. 1192. The BIA as amended became commonly known as the Locomotive Inspection Act. As relevant here, the LIA provides:

“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;

“(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. §20701. 2

The issue presented in this case is whether the LIA pre-empts petitioners’ state-law claims that respondents defectively designed locomotive parts and failed to warn Corson of dangers associated with those parts. In light of this Court’s prior decision in Napier, supra, we conclude that petitioners’ claims are pre-empted.

III A

The Supremacy Clause provides that federal law “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U. S. Const., Art. VI, cl. 2. Pre-emption of state law thus occurs through the “direct operation of the Supremacy Clause.” Brown v. Hotel Employees, 468 U. S. 491, 501 (1984) . Congress may, of course, expressly pre-empt state law, but “[e]ven without an express provision for preemption, we have found that state law must yield to a congressional Act in at least two circumstances.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000) . First, “state law is naturally preempted to the extent of any conflict with a federal statute.” Ibid. Second, we have deemed state law pre-empted “when the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively.” Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995) . We deal here only with the latter, so-called field pre-emption.

B

We do not, however, address the LIA’s pre-emptive effect on a clean slate, because this Court addressed that issue 85 years ago in Napier. In that case, railroads challenged two state laws that “prohibit[ed] use within the State of locomotives not equipped with” certain prescribed devices, on the ground that the Interstate Commerce Commission (ICC), the agency then vested with the authority to carry out the LIA’s requirements, had not required the devices in question. 3 272 U. S., at 607, 609. In response, the States argued that their requirements were not pre-empted because they were directed at a different objective than the LIA. Id., at 612. According to the States, their regulations were intended to protect railroad workers from sickness and disease, whereas “the federal regulation endeavors solely to prevent accidental injury in the operation of trains.” Ibid.

To determine whether the state requirements were pre-empted, this Court asked whether the LIA “manifest[s] the intention to occupy the entire field of regulating locomotive equipment[.]” Id., at 611. The Court answered that question in the affirmative, stating that “[t]he broad scope of the authority conferred upon the [ICC]” by Congress in the LIA led to that conclusion. Id., at 613. The power delegated to the ICC, the Court explained, was a “general one” that “extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.” Id., at 611.

The Court rejected the States’ contention that the scope of the pre-empted field was to “be determined by the object sought through the legislation, rather than the physical elements affected by it.” Id., at 612. The Court found it dispositive that “[t]he federal and the state statutes are directed to the same subject—the equipment of locomotives.” Ibid. Because the States’ requirements operated upon the same physical elements as the LIA, the Court held that the state laws, “however commendable or however different their purpose,” id., at 613, fell within the LIA’s pre-empted field.

IV

Against the backdrop of Napier, petitioners advance two arguments in support of their position that their state-law claims related to the use of asbestos in locomotive equipment do not fall within the LIA’s pre-empted field. Petitioners first contend that Napier no longer defines the scope of the LIA’s pre-empted field because that field has been narrowed by a subsequently enacted federal statute. Alternatively, petitioners argue that their claims do not fall within the LIA’s pre-empted field, even as that field was defined by Napier. We address each of petitioners’ arguments in turn.

A

First, petitioners suggest that the Federal Railroad Safety Act of 1970 (FRSA), 84Stat. 971 (codified at 49 U. S. C. §20102 et seq.), altered the LIA’s pre-emptive scope. The FRSA grants the Secretary of Transportation broad regulatory authority over railroad safety. See §20103(a). Petitioners point to the FRSA’s pre-emption provision, which provides in part that “[a] State may adopt or continue in force a law, regulation, or order related to railroad safety . . . until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement.” §20106(a)(2) (2006 ed., Supp. III). According to petitioners, the FRSA’s pre-emption provision supplanted the LIA’s pre-emption of the field, with the result that petitioners’ claims are not pre-empted because the Secretary has not issued a regulation or order addressing the use of asbestos in locomotives or locomotive parts.

Petitioners’ reliance on the FRSA is misplaced. The FRSA instructs that “[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.” §20103(a) (2006 ed.) (emphasis added). By its terms, the FRSA does not alter pre-existing federal statutes on railroad safety. “Rather, it leaves existing statutes intact, . . . and authorizes the Secretary to fill interstitial areas of railroad safety with supplemental regulation.” Marshall v. Burlington Northern, Inc., 720 F. 2d 1149, 1152–1153 (CA9 1983) (Kennedy, J.). Because the LIA was already in effect when the FRSA was enacted, we conclude that the FRSA left the LIA, and its pre-emptive scope as defined by Napier, intact.

B

Since the LIA’s pre-emptive scope remains unaltered, petitioners must contend with Napier. Petitioners do not ask us to overrule Napier and thus do not seek to overcome the presumption of stare decisis that attaches to this 85-year-old precedent. See Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. ___, ___ (2011) (slip op., at 9) (noting the “special force of the doctrine of stare decisis with regard to questions of statutory interpretation” (internal quotation marks omitted)). Instead, petitioners advance several arguments aimed at demonstrating that their claims fall outside of the field pre-empted by the LIA, as it was defined in Napier. Each is unpersuasive.

1

Petitioners, along with the Solicitor General as amicus curiae, first argue that petitioners’ claims do not fall within the LIA’s pre-empted field because the claims arise out of the repair and maintenance of locomotives, rather than the use of locomotives on a railroad line. Specifically, they contend 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, they argue, does not extend to the regulation of hazards arising from the repair or maintenance of locomotives. Therefore, the argument goes, state-law claims arising from repair or maintenance—as opposed to claims arising from use on the line—do not fall within the pre-empted field.

We reject this attempt to redefine the pre-empted 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. 272 U. S., at 611. 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 612.

2

Petitioners further argue that, even if their design-defect claims are pre-empted, their failure-to-warn claims do not suffer the same fate. In their complaint, petitioners alleged in closely related claims (1) that respondents negligently failed to warn of the risks associated with asbestos and to provide instructions concerning safeguards for working with asbestos; and (2) that the asbestoscontaining products were defective because respondents failed to give sufficient warnings or instructions concerning the “risks, dangers, and harm inherent in said asbestos products.” See App. 20–27 (¶¶7–10, 12), 42 (¶8); see also Brief for Petitioners 11. According to petitioners, these claims do not fall within the LIA’s pre-empted field because “[t]he basis of liability for failure to warn . . . is not the ‘design’ or ‘manufacture’ of a product,” but is instead “the failure to provide adequate warnings regarding the product’s risks.” Reply Brief for Petitioners 16.

We disagree. 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.” 620 F. 3d, at 398, n. 8. Because petitioners’ failure-to-warn claims are therefore directed at the equipment of locomotives, they fall within the pre-empted field defined by Napier. 272 U. S., at 612. 4

3

Petitioners also contend that their state-law claims against manufacturers of locomotives and locomotive parts fall outside of the LIA’s pre-empted field because manufacturers were not regulated under the LIA at the time that Corson was allegedly exposed to asbestos. Petitioners point out that the LIA, as originally enacted in the BIA, subjected only common carriers to civil penalties. Act of Feb. 17, 1911, §9, 36Stat. 916. It was not until 1988, well after the events of this case, that the LIA’s penalty provision was revised to apply to “[a]ny person” violating the LIA. Rail Safety Improvement Act of 1988, §14(7)(A), 102Stat. 633; see also §14(7)(B) (amending penalty provision to provide that “an act by an individual that causes a railroad to be in violation . . . shall be deemed a violation”).

This argument fails for the same reason as the two preceding arguments: It is inconsistent with Napier. 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. 272 U. S., at 612. Because petitioners’ claims are directed at the equipment of locomotives, they fall within the pre-empted field.

Petitioners’ proposed rule is also contrary to common sense. Under 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 Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U. S. 246 (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. 541 U. S., at 248. 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. 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.

4

Finally, petitioners contend that the LIA’s pre-emptive scope does not extend to state common-law claims, as opposed to state legislation or regulation. Petitioners note that “a preempted field does not necessarily include state common law.” Brief for Petitioners 38–39 (citing Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984) ; Sprietsma v. Mercury Marine, 537 U. S. 51 (2002) ). Napier, however, held that the LIA “occup[ied] the entire field of regulating locomotive equipment” to the exclusion of state regulation. 272 U. S., at 611–612. That categorical conclusion admits of no exception for state common-law duties and standards of care. As we have recognized, state “regulation can be . . . effectively exerted through an award of damages,” and “[t]he obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 247 (1959) . Cf. Riegel v. Medtronic, Inc., 552 U. S. 312, 324 (2008) (“Absent other indication, reference to a State’s ‘requirements’ [in a federal express pre-emption provision] includes its common-law duties”). We therefore conclude that state common-law duties and standards of care directed to the subject of locomotive equipment are pre-empted by the LIA.

*  *  *

For the foregoing reasons, we hold that petitioners’ state-law design-defect and failure-to-warn claims fall within the field of locomotive equipment regulation pre-empted by the LIA, as that field was defined in Napier. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

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1  A “tender” is a “[a] car attached to a locomotive, for carrying a supply of fuel and water.” Webster’s New International Dictionary of the English Language 2126 (1917).

2  At the time of Corson’s employment, this provision of the LIA was worded somewhat differently. See 45 U. S. C. §23 (1946 ed.). Petitioners do not argue that the change in statutory language makes any difference in this case.

3  Act of Feb. 17, 1911, §6, 36Stat. 915. That authority has sincebeen transferred to the Secretary of Transportation. Department of Transportation Act, §§6(e)(1)(E) and (F), 80Stat. 939; see 49 U. S. C. §§20701–20702.

4  Justice Sotomayor apparently agrees that petitioners’ failure-to-warn claims are directed at the equipment of locomotives. Post, at 5 (opinion concurring in part and dissenting in part). Yet, she argues, those claims affect locomotive equipment only “ ‘tangentially.’ ” Ibid. (quoting English v. General Elec. Co., 496 U. S. 72, 85 (1990) ). Notso. A failure-to-warn claim imposes liability on a particular design of locomotive equipment unless warnings deemed sufficient under state law are given. This duty to warn and the accompanying threat of liability will inevitably influence a manufacturer’s choice whether to use that particular design. By influencing design decisions in that manner, failure-to-warn liability has a “ ‘direct and substantial effect’ ” on the “physical elements” of a locomotive. Post, at 5 (quoting English, supra, at 85).

SUPREME COURT OF THE UNITED STATES

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No. 10–879

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GLORIA GAIL KURNS, executrix of the ESTATE OF GEORGE M. CORSON, DECEASED, et al., PETITIONERS v. RAILROAD FRICTION PRODUCTS CORPORATION et al.

on writ of certiorari to the united states court of appeals for the third circuit

[February 29, 2012]

Justice Sotomayor, with whom Justice Ginsburg and Justice Breyer join, concurring in part and dissenting in part.

I concur in the Court’s holding that the Locomotive Inspection Act (LIA), 49 U. S. C. §20701 et seq., pre-empts petitioners’ tort claims for defective design, but I respectfully dissent from the Court’s holding that the same is true of petitioners’ claims for failure to warn. In my view, the latter escape pre-emption because they impose no state-law requirements in the field reserved for federal regulation: “the equipment of locomotives.” Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 612 (1926) .

I

Statutory stare decisis compels me to agree that the LIA occupies “the field of regulating locomotive equipment used on a highway of interstate commerce.” Id., at 607. Perhaps this Court might decide Napier differently today. The LIA lacks an express pre-emption clause, and “our recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 617 (1997) (Thomas, J., dissenting). The LIA contains no substantive regulations, let alone a “scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . Instead of relying on such indications of Congress’ intent to oust state law, Napier implied field pre-emption from the LIA’s mere delegation of regulatory authority to the Interstate Commerce Commission. Compare 272 U. S., at 612–613, with, e.g., Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 717 (1985) , and New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973) . Nonetheless, Napier’s construction of the LIA has been settled law for 85 years, and “ ‘[c]onsiderations of stare decisis have special force in the area of statutory interpretation.’ ” Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991) .

Consistent with the values served by statutory stare decisis, however, it is important to be precise about what Napier held: Napier defined the pre-empted field as the physical composition of locomotive equipment. See 272 U. S., at 611 (“[T]he power delegated . . . by the [LIA] . . . extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances”); id., at 612 (“The federal and the state statutes are directed to the same subject—the equipment of locomotives. They operate upon the same object”); see also Act of June 7, 1924, §2, 43Stat. 659 (making the LIA’s standard of care applicable to the “locomotive, its boiler, tender, and all parts and appurtenances thereof”). Petitioners’ defective-design claims fall within the pre-empted field because they would impose state-law requirements on a locomotive’s physical makeup. See ante, at 7–8.

II

Petitioners’ failure-to-warn claims, by contrast, proceed on a fundamentally different theory of tort liability that does not implicate a product’s physical composition at all. A failure-to-warn claim asks nothing of a product’s design, but requires instead that a manufacturer caution of nonobvious dangers and provide instructions for safe use. Indeed, a product may be flawlessly designed and still subject its manufacturer or seller to liability for lack of adequate instructions or warnings. See, e.g., Madden, The Duty To Warn in Products Liability: Contours and Criticism, 89 W. Va. L. Rev. 221 (1987) (“Although a product is unerringly designed, manufactured and assembled, injury or damage occasioned by its intended or reasonably foreseeable use may subject the seller to liability. Such liability may be found if the product has a potential for injury that is not readily apparent to the user” (cited in Restatement (Third) of Torts: Products Liability §2, Reporter’s Note, Comment i, n. 1 (1997) (hereinafter Restatement)); see also Madden, 89 W. Va. L. Rev., at 221, n. 1 (collecting cases). Petitioners’ complaint embodies just this conceptual distinction. Compare App. 22–23, ¶¶10(c)–(e), (g), with id., at 25, ¶10(p). 1

In the jurisdictions relevant to this suit, failure to warn is “a distinct cause of action under the theory of strict products liability.” Riley v. American Honda Motor Co., 259 Mont. 128, 132, 856 P. 2d 196, 198 (1993). Thus, “ ‘a failure to warn of an injury[-]causing risk associated with the use of a technically pure and fit product can render such product unreasonably dangerous.’ ” Ibid.; see also, e.g., Jahnig v. Coisman, 283 N. W. 2d 557, 560 (S. D. 1979) (“In products liability suits based upon strict liability, . . . the product itself need not be defective. Where a manufacturer or seller has reason to anticipate that danger may result from a particular use of his product, and he fails to give adequate warning of such a danger, the product sold without such warning is in a defective condition within the strict liability doctrine”); Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F. 2d 85, 92–93 (CA3 1976) (finding that “failure to adequately warn of inherent or latent limitations in a product, which do not necessarily amount to a design defect” is “an independent basis of liability” under Pennsylvania law). 2

Similarly, this Court has explained that a failure-to-warn claim is “narrower” than a claim that alleges a defect in the underlying product. Wyeth v. Levine, 555 U. S. 555, 565 (2009) . Thus in Wyeth, this Court affirmed a state damages award based on a drug manufacturer’s failure to provide sufficient warnings to clinicians against intravenous administration of the drug, but noted that it was unnecessary to decide “whether a state rule proscribing intravenous administration would be pre-empted.” Ibid. Cf. Bates v. Dow Agrosciences LLC, 544 U. S. 431, 444 (2005) (“Rules that require manufacturers to design reasonably safe products . . . plainly do not qualify as requirements for ‘labeling or packaging.’ None of these common-law rules requires that manufacturers label or package their products in any particular way”).

The majority treats defective-design and failure-to-warn claims as congruent, reasoning that each asserts a product defect. See ante, at 8–9 (citing Restatement §2(c) and Comment l). That may be true at a high level of generality, but “[d]esign and failure-to-warn claims . . . rest on different factual allegations and distinct legal concepts.” Restatement §2, at 35, Comment n. For example, a manufacturer or seller cannot escape liability for an unreasonably unsafe design merely by issuing a warning. See id., at 33, Comment l (“Warnings are not . . . a substitute for the provision of a reasonably safe design”). In a fundamental sense, therefore, a failure-to-warn claim proceeds by taking a product’s physical design as a given. A failure-to-warn claim alleges a “defect” by asserting that a product, as designed, is safe for use only when accompanied by a warning—not that a product must be designed differently.

The majority further conflates defective-design and failure-to-warn claims by noting that each is “directed at” locomotive equipment. Ante, at 9. That is insufficient. Not every state law that “could be said to affect tangentially” matters within the regulated field is pre-empted. English v. General Elec. Co., 496 U. S. 72, 85 (1990) . Rather, “for a state law to fall within the pre-empted zone, it must have some direct and substantial effect” on the primary conduct of entities subject to federal regulation. Ibid. As explained above, the LIA regulates the physical equipment of locomotives. But petitioners’ failure-to-warn claims, if successful, would have no necessary effect on the physical equipment of locomotives at all, as respondents themselves acknowledge. See Brief for Respondents 55 (petitioners’ failure-to-warn claims “may not themselves literally mandate physical alteration of the locomotive’s design or construction”).

In the majority’s view, a “duty to warn and the accompanying threat of liability will inevitably influence” a manufacturer’s design choices. Ante, at 9, n. 4. But an “influence” is not the same as an “effect,” and not every state law with some imaginable impact on matters within a federally regulated field is, for that reason alone, pre-empted. See English, 496 U. S., at 85–86; Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 256 (1984) . Indeed, the majority elides the distinction between indirect and direct regulation, even though this Court has explained that the two are not equivalent for pre-emption purposes. See Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 186 (1988) (“Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not”). State wage-and-hour laws, workplace safety standards, or tax credits for green technology, for example, could all “influence” the means and materials of locomotive equipment manufacture without imposing direct obligations. Nor does the majority substantiate its assertion that the “influence” exerted by a duty to warn need be “inevitabl[e]” or “substantial.” Ante, at 9, n. 4. To the contrary, the requirements imposed by such a duty could be light, and the corresponding liability negligible, in comparison to the commercial value of retaining an existing design.

Respondents could have complied with state-law duties to warn by providing instructions for the safe maintenance of asbestos-containing locomotive parts in equipment manuals. See, e.g., Baldwin-Lima-Hamilton Corp., Engine Manual for 600 Series Diesel Engines (1951), online at http://www.rr-fallenflags.org/manual/blh-6em.html (last visited Feb. 27, 2012, and available in Clerk of Court’s case file). Or respondents could have ensured that repair shops posted signs. See Restatement §2, at 29–30, Comment i (duty to warn “may require that instructions and warnings be given not only to purchasers, users, and consumers, but also to others who a reasonable seller should know will be in a position to reduce or avoid the risk of harm”); see also, e.g., Patch v. Hillerich & Bradsby Co., 361 Mont. 241, 246, 257 P. 3d 383, 388 (2011) (“While placing a warning directly on a product is one method of warning, other methods of warning exist, including, but not limited to, issuing oral warnings and placing warnings in advertisements, posters, and media releases”). Neither step would encroach on the pre-empted field of locomotives’ “physical elements.” Napier, 272 U. S., at 612. The majority is therefore wrong to say 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 locomotive parts and appurtenances.’ ” Ante, at 8–9 (quoting Kurns v. A. W. Chesteron, Inc., 620 F. 3d 392, 398, n. 8 (CA3 2010)). Rather, the “gravamen” of these claims is that petitioners’ decedent George Corson could have avoided the harmful consequences of exposure to asbestos while repairing precisely the same locomotive parts had respondents cautioned him, for example, to wear a mask.

Finally, preserving petitioners’ failure-to-warn claims coheres with the LIA’s regulatory regime. Neither the Interstate Commerce Commission, to which Congress first delegated authority under the LIA, nor the Federal Railroad Administration (FRA), to whom that authority now belongs, has ever regulated locomotive repair and maintenance. To the contrary, the FRA takes the position that it lacks power under the LIA to regulate within locomotive maintenance and repair facilities. Brief for United States as Amicus Curiae in John Crane, Inc. v. Atwell, O. T. 2010, No. 10–272, p. 10 (“[T]he field covered by the LIA does not include requirements concerning the repair of locomotives that are not in use”); Brief for United States as Amicus Curiae 13 (“The preempted field . . . does not include tort claims based on injuries arising when locomotives are not in use”). The FRA has determined that the Occupational Safety and Health Administration, not itself, bears primary responsibility for workplace safety, including with respect to hazardous materials. 43 Fed. Reg. 10583–10590 (1978); cf., e.g., English, 496 U. S., at 83, and n. 6. And the FRA has not promulgated regulations that address warnings specific to maintenance and repair. Because the pre-empted field is congruent with the regulated field, see, e.g., United States v. Locke, 529 U. S. 89, 112 (2000) , the majority’s decision sweeps far too broadly. 3

*  *  *

In short, the majority affords the LIA field-pre-emptive effect well beyond what Napier requires, leaving petitioners without a remedy for what they allege was fatal exposure to asbestos in repair facilities. “It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.” Silkwood, 464 U. S., at 251. That is doubly true in light of the LIA’s “purpose . . . of facilitating employee recovery, not of restricting such recovery or making it impossible.” Urie v. Thompson, 337 U. S. 163, 189 (1949) .

I therefore concur in part and dissent in part.

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1  Nor do petitioners’ failure-to-warn claims allege that respondents’ locomotive parts should have been altered, for example, by affixing warnings to the products themselves. See App. 22–23, ¶¶10(c)–(e), (g); id., at 27, ¶12(d).

2  Petitioners brought suit in Pennsylvania, but alleged that their decedent, George Corson, was exposed to asbestos at railroad maintenance and repair shops in Montana and South Dakota. Id., at 42, ¶¶6–7. Because the District Court granted summary judgment on the issue of pre-emption, it performed no choice-of-law analysis to identify the applicable substantive state law. See App. to Pet. for Cert. 22a–39a.

3  Disagreeing with the agency’s interpretation, Justice Kagan concludes that the LIA empowers the FRA to require warnings as an incident of the authority to prescribe locomotive design. Compare ante, 2–3 (concurring opinion), with, e.g., Tr. of Oral Arg. 22–23. Such power, if it exists, must be limited to warnings that impose direct requirements on the physical composition of locomotive equipment. Cf. n. 1, supra; 49 CFR §§229.85, 229.113 (2010). That may be a formal line, but it is the line that this Court drew in describing the scope of the authority conferred by the LIA, and therefore the pre-empted field. See Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 –612 (1926). And it is the line that separates petitioners’ design-defect claims from their claims for failure to warn.

SUPREME COURT OF THE UNITED STATES

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No. 10–879

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GLORIA GAIL KURNS, executrix of the ESTATE OF GEORGE M. CORSON, DECEASED, et al., PETITIONERS v. RAILROAD FRICTION PRODUCTS CORPORATION et al.

on writ of certiorari to the united states court of appeals for the third circuit

[February 29, 2012]

Justice Kagan, concurring.

Like Justice Sotomayor, post, at 1 (opinion concurring in part and dissenting in part), I doubt this Court would decide Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 (1926) , in the same way today. The Napier Court concluded that Congress had “manifest[ed] the intention to occupy the entire field of regulating locomotive equipment,” based on nothing more than a statute granting regulatory authority over that subject matter to a federal agency. Id., at 611. Under our more recent cases, Congress must do much more to oust all of state law from a field. See, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973) (rejecting preemption even though Congress had enacted a “detailed” and “comprehensive” regulatory scheme). Viewed through the lens of modern preemption law, Napier is an anachronism.

But Napier governs so long as Congress lets it—and that decision provides a straightforward way to determine whether state laws relating to locomotive equipment are preempted. According to Napier, the scope of the agency’s power under the Locomotive Inspection Act (LIA) determines the boundaries of the preempted field. See 272 U. S., at 611 (state regulations were preempted because they fell “within the scope of the authority delegated to the Commission”); see also ante, at 5 (the “ ‘broad scope of the authority’ ” given to the agency “led to [Napier’s] conclusion”); post, at 7–8 (“[T]he pre-empted field is congruent with the regulated field”). And under that test, none of the state-law claims at issue here can survive.

All of us agree that the petitioners’ defective-design claims are preempted. Napier recognized the federal agency’s delegated authority over “the design, the construction and the material of every part of the locomotive.” 272 U. S., at 611. In doing so, Napier did not distinguish between “hazards arising from repair and maintenance” of the parts and hazards stemming from their “use on the line.” Ante, at 7. The agency thus has authority to regulate the design of locomotive equipment—like the asbetos-containing brakeshoes here—to prevent either danger. And that fact resolves the preemption question. Because the agency could have banned use of the brakeshoes as designed, the petitioners’ defective-design claims—which would effectively accomplish the identical result—fall within the preempted field.

So too the petitioners’ failure-to-warn claims, and for the same reason. Napier did not specifically address warnings, because the case in no way involved them. But 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. (And that is so, contrary to Justice Sotomayor’s view, see post, at 8, n. 3, whether the warning is engraved into the part itself or posted on the workshop wall.) Here, for example, the agency need not have chosen between banning asbestos-containing brakeshoes and leaving them entirely unregulated. It could instead have required a warning about how to handle those brakeshoes safely. If, say, a mask would have protected a worker from risk, then the agency could have demanded a notice to that effect. See, e.g., Law v. General Motors Corp., 114 F. 3d 908, 911 (CA9 1997) (“As for warning requirements, these too are within the scope of the [agency’s] authority”); Scheiding v. General Motors Corp., 22 Cal. 4th 471, 484, 993 P. 2d 996, 1004 (2000) (same). 1 And because the agency could have required warnings about the equipment’s use, the petitioners’ failure-to-warn claims, no less than their defective-design claims, are preempted under Napier.

I understand these views to comport with the Court’s opinion in this case, and I accordingly join it in full.

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1  Justice Sotomayor argues that “preserving petitioners’ failure-to-warn claims coheres with the LIA’s regulatory regime” because the agency disclaims authority over locomotive repair and maintenance. Post, at 7. But that claim conflates two separate distinctions. The agency draws a line not between mandating design changes and mandating warnings, but between regulating equipment that is hazardous to repair and regulating equipment that is hazardous to use on the railroad line. In keeping with that analysis, the agency contends that the petitioners’ design-defect claims also fall outside the preempted field because the alleged defect in the brakeshoes rendered dangerous only their repair, and not their on-line use. See Brief for United States as Amicus Curiae 12–13. The agency’s understanding of its author-ity therefore does not support Justice Sotomayor’s position. As the agency agrees, the petitioners’ claims must stand or fall together if viewed through the lens of the agency’s regulatory authority. In my view, they fall because the Court rightly rejects the agency’s proffered distinction between regulating the dangers of repairing equipment and regulating the dangers of using that equipment on line. See supra,at 2.

Print this transcript Transcript: 

ORAL ARGUMENT OF DAVID C. FREDERICK ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument next this morning in Case 10-879, Kurns v. Railroad Friction Products Corporation.

Mr. Frederick.

Mr. Frederick: Thank you, Mr. Chief Justice, and may it please the Court:

Congress enacted the Locomotive Inspection Act to ensure the safety of locomotives in use on railroad lines, not to regulate hazards to mechanics conducting repairs of locomotives.

The doctrine of implied--

Justice Sonia Sotomayor: So what do you -- what do you make of the ICC in 1916, in the Tiller case, regulating the lights that railroads had to have, locomotives had to have in the yard, and that those lights had to differ when the railroad was in use.

Mr. Frederick: --That was actually I think pursuant to the Safety Appliance Act, Justice Sotomayor, if I'm not -- if I'm not mistaken.

And the principle behind the safety in use regulation that this Court construed in Napier was to ensure that locomotives were safe for fit use on the line.

And that was the consistent construction both in the ICC's statement that it made in 1922 and in this Court's post-Napier--

Justice Sonia Sotomayor: I'm not sure I understand.

It prescribed different lights when the -- when the -- when the locomotive was in the yard.

Mr. Frederick: --Yes.

Justice Sonia Sotomayor: That had nothing to do with safety in use.

It had to do with safety in repair.

Mr. Frederick: Our position is that it was not pursuant to the Locomotive Inspection Act that the ICC promulgated that rule.

As the Court has said in numerous cases, the ICC had rules in place with respect to different aspects of the train at different points in time, but the Locomotive Inspection Act was designed to address a very specific problem, which was boilers exploding on the line when the train was in operation.

And that is the consistent way that the ICC, and subsequently the Federal Railroad Administration, has construed the act.

Justice Sonia Sotomayor: Distinguish for me our reasoning in the Ray case.

Mr. Frederick: I'm sorry?

Justice Sonia Sotomayor: Distinguish for me the difference in the Ray case, that had to do with navigation, and where we held that the agency, in ensuring safety in navigation, controlled design completely, whether in repair or not.

So how do we -- why don't we apply the logic of Ray to this case?

Mr. Frederick: Well, of course in Ray you addressed the Port and Tanker Safety Act, as well as the Port and Waterway Safety Act.

In the United States v. Locke case, the Court subsequently looked at Ray in terms of design in a statute that also specifically included the word "repair and maintenance", which is absent here.

But what the Court was getting at in Ray was to ensure that States were not using their law to interfere with the design of equipment.

Of course, that was for--

Justice Sonia Sotomayor: That's the argument here, which is--

Mr. Frederick: --No.

Justice Sonia Sotomayor: --once you regulate what -- what the design or use of asbestos is, you're interfering with what available components there are for locomotives.

Mr. Frederick: If I could make two points about that, Justice Sotomayor.

That's not actually correct.

The first is, anything that the Court might think about design does not impair our failure-to warrant claims, which entail no challenge to the design of a locomotive at all, only to the instructions for its safe use.

But to the extent--

Justice Sonia Sotomayor: So you're giving up all of your other claims?

Mr. Frederick: --No.

My second argument is that the design claim here involves repair work or problems uniquely; it does not include or intrude on the fitness for service standard that this Court announced in Napier or that has consistently been applied.

The asbestos harms that the repair workers here faced are unique to the repair process, where they are scraping over the--

Chief Justice John G. Roberts: Well, but counsel, looking at Napier, the power that Justice Brandeis said was conferred in that case was to specify the sort of equipment to be used on locomotives; right?

Mr. Frederick: --Yes, but on--

Chief Justice John G. Roberts: So this is equipment that was used in locomotives?

Mr. Frederick: --Yes, but, Mr. Chief Justice, it also says on page 612 that the power delegated by Congress is to determine fitness for service.

So the words about the--

Chief Justice John G. Roberts: Yes, but that's the same -- that's the same thing, thing, I'll give you that, fitness for service.

Mr. Frederick: --No, it doesn't--

Chief Justice John G. Roberts: It doesn't say something that's going to cause harm while it's actually being used.

Mr. Frederick: --But, Mr. Chief Justice, the principle here is to ensure that the locomotives when they are outside the repair yard and are on the locomotive -- on the railroad line -- are -- are safe to operate.

That standard and Napier had no issue--

Chief Justice John G. Roberts: Why does it depend?

You want to know if this equipment is safe to operate, right, to be used, whether -- whether it's going to be used.

Mr. Frederick: --Not to be broken down.

Chief Justice John G. Roberts: If you have a boiler that's going to be used, that's within the power that was confirmed.

It's not merely to inspect, as again, as Justice Brandeis said.

Mr. Frederick: But the point here is that it is not to be broken down.

And the locomotive repair workers here face unique hazards in repairing locomotives whose safety standards are to ensure that they work properly on the rail roadway, not when they are being taken apart and repaired.

That they just--

Chief Justice John G. Roberts: I guess your argument isn't limited to being taken apart.

Your argument does depend on the fact that the asbestos doesn't come out during use; right?

Mr. Frederick: --That's absolutely correct.

That's why this is the unique cancer faced by the repair workers.

Chief Justice John G. Roberts: Yes, but if there is an accident or something does the asbestos come out during the use of the locomotive?

Mr. Frederick: If it did, it would be covered under the Locomotive Inspection Act safety standard, and that would be covered by Federal law.

Justice Antonin Scalia: You -- you would say once there is an accident and the locomotive is disabled, it's no longer in use.

I suppose that's what you'd say.

Mr. Frederick: That's correct.

Justice Antonin Scalia: It's unrealistic, but that's what you'd say.

Mr. Frederick: No.

Well, it's governed by a different statute, which is found at 49 U.S.C. 303.

Chief Justice John G. Roberts: Well, that's the old insurance cases we've had, that, you know, when the car, you know, slams into a pole or something, it's not being used as a car anymore, and therefore, the insurance doesn't cover it.

Mr. Frederick: Well, if I could finish my answer to your previous question, Mr. Chief Justice, there's a specific statute on that point, and it predated the Locomotive Inspection Act, and it provided that when there was a crippled locomotive, the -- the railroad did not face liability, civil penalties, to bring the crippled locomotive back to the yard, but it specifically said if a worker was injured during that process the railroad would face liability.

Our point here is that the Locomotive Inspection Act's field should be construed narrowly because in 1970 Congress expressly and comprehensively legislated in the Federal Rail Safety Act and provided a conflict preemption regime in which if a State had a rule in place that rule would be permitted to survive unless and until the Federal Rail Administration issued a regulation.

And there has never been a regulation on asbestos.

Justice Stephen G. Breyer: What I'm concerned about I think is the same thing that the Chief Justice mentioned, the particular language in Napier.

And whatever -- 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.

And the argument is made in Napier that this particular State regulation is aimed at preventing sickness and disease, not at making locomotives safe, and therefore it's not preempted.

And the answer to that was not: Sickness and disease are an object of the statute, too.

The answer was the Federal and the State statutes are directed to the same subject, the equipment of locomotives, and therefore it is preemptive.

Now, how could we come out in your favor without overturning what seems to be that key sentence in Napier?

That is the problem that's bothering me.

Mr. Frederick: Well, first, I would urge you not to read Napier like a statute, although Justice Brandeis is obviously--

Justice Stephen G. Breyer: Okay.

That's a -- the problem with A is that it's been followed and followed and followed and followed, and really read for all its worth, and so forth.

So -- so one question is, to what extent can I go back and revise that sentence?

That's A.

Okay?

What's B?

Mr. Frederick: --B is that he was addressing himself to fitness for service standards on the line.

The Wisconsin and Georgia statutes at issue there purported to regulate what the locomotive could do while it was in operation on the line.

That's not what the claims in this case are about.

Justice Stephen G. Breyer: Not -- now, is there any way that you could win your case -- reasonably, in a reasonable way, not some far-out way -- but you win your case on this, and it does not affect the manufacturers' way of dealing with their equipment?

Mr. Frederick: Yes.

Justice Stephen G. Breyer: What is that?

Mr. Frederick: First is, if you accept our proposition that warning claims are valid negligence claims.

The warning claims are not -- do not affect the equipment, how it is made at all.

It's simply how do you use the equipment safely.

Secondly, the design claims here go to the unique hazards faced by repair workers.

You can use asbestos under our theory of the case, on the locomotive in exactly the same way that the locomotive equipment manufacturers have done, so long as there is a safer way to take the asbestos off the locomotive in the repair yard.

That is a distinct kind of design claim that doesn't go to the safe operation of the locomotive.

It goes to what hazards are created when a repair worker is doing maintenance work on it.

Justice Sonia Sotomayor: I'm not sure I understand this.

Are you talking about wearing a particular hazard suit?

Mr. Frederick: That would be--

Justice Sonia Sotomayor: Are you talking about blowing out air?

Are you talking about changing the design so the asbestos comes off without the dust cloud that's generally created?

Mr. Frederick: --Both.

The dust cloud is something that can be warned against and protected against with protective gear that has nothing to do with the design of the locomotive.

There are, and there is evidence that there are, safer and were safer ways -- I remind you that asbestos isn't used on locomotives any more, so this is part of an historical debate here -- but in ways that could be removed that would not create the cloud dust.

That's the essence of the design defect claim.

And the LIA and the FRA do not regulate in the repair shop.

So there is a completely gap here in terms--

Justice Elena Kagan: Could I make sure I understand you?

If -- if the Secretary tomorrow decided to issue a regulation saying railroads should no longer use these asbestos-containing brakes because of the hazards in the repair shop, do you think the Secretary could not do that under the statute?

Mr. Frederick: --No.

Absolutely -- absolutely can do that under the Federal Rail Safety Act, which empowers the Secretary.

Justice Elena Kagan: But the Secretary cannot do that under LIA?

Is that the idea?

Mr. Frederick: It -- it very well could, because it's a fitness for service standard.

But it always -- and if you look at its regulations, in Parts 229 and 230 of 49 CFR, it always issues these regulations under both authorities, because the FRSA expanded it.

Justice Elena Kagan: Okay, then I'm a little bit lost.

If the Secretary can issue such a regulation under LIA, L-I-A, then isn't it in the scope of regulation, and then isn't it also in the scope of what's preempted?

Mr. Frederick: It would have to do so under the B&O Railroad case in the early 1930s -- there was another Justice Brandeis opinion -- in which it would have to make a finding that to make that regulation that you posit, Justice Kagan, was necessary to avoid unnecessary peril to life or limb.

In that case, the Court struck down the ICC's attempt to issue a regulation on a particular type of equipment because the ICC could not make that demonstration.

So in the current world, the FRA would regulate under the FRSA; it would not regulate under the LIA, because under this Court's jurisprudence it is a harder standard to meet to implement a regulatory standard.

That's our point.

The regulatory field here does not need to be read as expansively as the other side posits, because the FRA has all the authority it needs under the FRSA if it chooses to promulgate those rules, and it has not chosen to promulgate those rules.

The FRA can use conflict preemption to displace any State rule, but what they are seeking to do is to take the doctrine of implied field preemption, gain immunity from State law liability and not be subject to any Federal rules.

And it's that proposition that is an extraordinary proposition of implied field preemption.

We've found no case from this Court that goes that far.

Justice Ruth Bader Ginsburg: Mr. Frederick, could you -- could you clarify what is at stake for the worker here?

The railroad worker ordinarily has the FELA claim, but the FELA claim in this case was dismissed.

So can you tell us what recourse -- if you lose, what recovery can this plaintiff get?

And also explain to me why the FELA claim was -- was dismissed.

Mr. Frederick: If we lose this case, Justice Ginsburg, the decedent's family gets nothing, takes nothing, because the FELA claim was rendered summary judgment on the finding that there was no negligence by the railroad.

The only claim that the decedent's family has here is a third party claim against the manufacturer for failing to warn or design defect on the basis of State law.

Justice Stephen G. Breyer: You just -- you just said that, which I think you certainly have the right to bring a claim, don't you, to say the repair shop doesn't have adequate warnings.

And if -- if that's -- if the railroad's at fault in that, or the manufacturers or the owner of the repair shop, everybody who ever puts the asbestos in there is negligent in not putting up adequate warnings.

What's wrong with that?

Mr. Frederick: Well, here -- ordinarily, you'd bring a failure to warn claim directly against the manufacturer for not putting in the manual or stamping on the equipment or providing instructions for safe use.

Justice Stephen G. Breyer: No, no.

What about -- what about not -- what about getting away from the equipment and saying the failure here is not to fail to put it on the equipment; it's to fail to put it in the repair shop.

Mr. Frederick: It's both.

Justice Stephen G. Breyer: There's something I'm not seeing.

Mr. Frederick: No.

It's -- it's both.

Manufacturers routinely are held liable for failing to warn if in their manuals or in their other instruction materials they do not provide for instructions for the safe use of their equipment.

If I could save the balance of my time.

Chief Justice John G. Roberts: Thank you, Mr. Frederick.

Ms. Harrington.

ORAL ARGUMENT OF SARAH E. HARRINGTON, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Ms Harrington: Mr. Chief Justice, and may it please the Court:

I think it's helpful in this case to try to separate out the field preemption issues from the conflict preemption issues.

In the government's view, the only issue properly presented in this case is whether Petitioner's tort claims fall within the field preempted by the LIA, and our view is that they do not because they arise from injuries that occurred when the locomotive was not in use.

Now, Respondent would have the Court expand the field that's preempted by the LIA to include any claim that has anything to do with locomotive equipment, regardless of whether the equipment or the locomotive was in use at the time injury occurred.

But it doesn't make sense to--

Justice Antonin Scalia: Don't -- don't you think that 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?

Railroading is a national transportation industry, and whoever makes the engine has to know, if I do it this way, it's going to be okay.

Ms Harrington: --Absolutely.

Justice Antonin Scalia: And you're saying it won't be okay, because, although every State may have -- every State's requirements may be preempted when the -- when the locomotive is in use, all 50 States can have different requirements with respect to what the design has to be in order to make the engine safe when it's being repaired.

I think that truly frustrates the purpose of the Act.

Ms Harrington: I completely agree with what you're saying.

And -- and I'm sorry if you missed -- if we didn't state our position clearly in our brief.

Our view is that those kinds of requirements -- requirements that go to the design, construction, or materials on a locomotive that will be used, if those requirements are directed at the repair shop, then they would be conflict preempted.

But they wouldn't fall within the field that's governed by LIA because the LIA's substantive standard of care only applies to locomotives that are in use.

Justice Antonin Scalia: So what -- I'm not concerned about conflict preemption.

I'm concerned about State requirements that conflict with the Federal.

I'm talking about 50 State requirements that conflict with each other, so that the manufacturer has to look to all 50 States instead of looking to the secretary here, which says your engine is safe if you do this.

And you're telling me the manufacturer can no longer assume that.

Ms Harrington: No, I'm sorry.

Let me clarify.

I appreciate the opportunity to clarify.

In our view, what the conflict is, is not a conflict with a Federal rule saying you have to use this piece of equipment and you can't use that piece of equipment.

The conflict is with one of the purposes of the LIA, which is that the Federal Government be the only regulator of equipment that will be used on a locomotive.

And so what that means is if, if the Federal Government hasn't spoken to whether piece of equipment A can be used on a locomotive, that means that it can be, that the manufacturers know that it's okay.

And if you have a State rule that would have the effect of dictating the equipment that can be used on a locomotive, that would conflict with the single regulator objective of the LIA.

Justice Stephen G. Breyer: Well, what's the difference then?

How do you do it?

How do you -- what is it you're thinking of that the manufacturer's going to have to do in respect to his locomotive in order to comply with the State law about warning that is not going to mean that he changes the locomotive when it runs on the railroad?

Ms Harrington: Well, I think it depends on what the warning claim is.

Justice Stephen G. Breyer: Well, give me an example.

Ms Harrington: Well, under the -- under the Respondents -- under the Respondents' view of the field that's preempted, a State could not regulate the disposal of equipment that's removed from a locomotive during their repair process, even though--

Justice Stephen G. Breyer: Does that have anything to do with this case, the removal, never further -- no further use of a bit of a locomotive?

Ms Harrington: --No.

But also--

Justice Stephen G. Breyer: No.

Okay.

Let's get to this case.

Ms Harrington: --Also, in Respondent's view a State could not regulate workplace hazard, such as by requiring that workers wear goggles or masks.

Justice Stephen G. Breyer: Oh, I didn't know anybody denied that, that the State could regulate the repair shop, indeed require what warnings they wish, indeed require what equipment workers have to have.

I thought we are only talking about those rules of State law that would affect what the manufacturer has to put by way of design in his locomotive.

Ms Harrington: Yes, but when you're--

Justice Stephen G. Breyer: And that's where I'm having trouble.

I'm thinking one that would only affect repair shops and repairs, but maybe there is some kind of equipment that you could stick on the front of it and it is a hook or something and it holds something, and before it goes back on the line you take it off and put it in the locker.

And -- but you know, the more I thought along those lines I thought I'm getting into outer space.

This isn't reality.

So--

Ms Harrington: --No.

I think you could -- I'm sorry.

I think you could imagine a world where a State says when a locomotive comes into a repair shop the railroad or the repair shop has to attach a certain kind of clamp on the wheel, a certain kind of brake, that makes sure that the locomotive won't move while it is in the repair shop.

And when you're done repairing the locomotive you take them off and the locomotive has--

Justice Stephen G. Breyer: --All right.

Now, does that have more than theoretical value in this case?

Ms Harrington: --Well, I think in this case the claims that we say would not be conflict preempted or within the field are claims -- are the failure to warn claims.

Now, how a manufacturer actually issues the warning that would be required I think is a question that could be worked out as the case proceeds.

Justice Sonia Sotomayor: If the manufacturer is really not controlling the repair shop, of what value is this failure to warn claim?

Ms Harrington: Well, again I think it depends how the warning is issued.

You could require that the manufacturer tell the purchaser of the products to pass the warning along, to post warnings in a repair shop.

Justice Sonia Sotomayor: They can't control whether they do or don't.

Ms Harrington: They could require it contractual through the sale of the product.

I think those sorts of detailed issues would be things that would be worked out on a remand in this case.

Again, in our view, the only question squarely presented in this case is the field preemption question.

And--

Justice Elena Kagan: So on that question, Ms. Harrington, I'm still confused about the scope of your regulatory authority and whether you think you have the capacity to issue rules that are meant to protect repair workers on railway equipment.

So can you issue a rule under the LIA that says no asbestos-containing brakes because we are afraid that these brakes injure the guys in the roundhouse.

Ms Harrington: --No.

The LIA -- the standard of care under the LIA only goes to whether a locomotive is safe for use, and that is also the limit of the FRA's regulatory authority.

This Court, in the United States v. B&O.

Addressed that issue.

The ICC at the time had issued a regulation requiring a certain kind of reverse gear instead of a different kind of reverse gear.

Justice Antonin Scalia: Well, what -- what self-abnegation by the Federal Government, that "safe for use" does not include safe for use when it's being repaired.

Ms Harrington: Because the statute says safe for use on --

"safe for use on the line. "

It's safe for use on lines of interstate commerce.

Justice Elena Kagan: But this does seem a very limiting construction.

Napier seems to have a broader construction, and if I read some of your history right you've taken a broader understanding of your regulatory authority in the past.

So why this narrow view?

Ms Harrington: I'm not aware that we've taken a broader view of our regulatory authority under the LIA.

In Napier again what's important to remember is that the State statute at issue applied only to locomotives that were in use.

And so I think it's hard to take any statements, any broad statements, that were made in Napier and read them as applying--

Chief Justice John G. Roberts: Well, but if you're talking about -- I bet there are a lot of things on railroad cars that you can fix in the shop or you can fix while it's under way, right?

We are not always talking about brakes.

So let's suppose there's one of those things.

You get to the shop and the guy says: Boy, you got to fix this.

And they said: Well, the train's leaving and we're going to go in 10 hours.

And he says: Okay, I can fix it during the -- while it's in use.

Is that covered or not?

Ms Harrington: --Well, again the LIA only applies to the locomotive.

So if the thing that's broken that you could fix while it's in use would not make the locomotive unsafe to use, then it would not be a violation of the statute to use it while--

Chief Justice John G. Roberts: So the line you've been talking about between the repair shop and the locomotive on the tracks, that's not really the line at all.

Ms Harrington: --The line is in use versus not in use.

And that tends to match--

Chief Justice John G. Roberts: Well then, what's the answer to my question?

This is something you can fix in either place.

It's covered while it's -- if you fix it while the train is under way, but it's not covered if you wait until it's in the shop?

Ms Harrington: --Well if the -- if the fact that it's broken makes the locomotive unsafe to use, then the railroad cannot use it, cannot repair it while it's in use.

Chief Justice John G. Roberts: So then it's not whether it's in use or in the shop.

It's whether it is something that affects whether the locomotive can go, Whether it's--

Ms Harrington: That's right.

But here the injuries occur when the locomotive is not in use because it's in the repair shop.

And in those situations the LIA's substantive heightened duty of care doesn't even apply and so it doesn't make sense to think of those claims as being within the field that's preempted by the LIA, because they're not governed by the LIA.

Now those claims might bump up against the LIA in a different way by conflicting again with the--

Justice Antonin Scalia: Do you have any--

Justice Ruth Bader Ginsburg: Can you--

Justice Antonin Scalia: --I'm sorry.

Go ahead.

Justice Ruth Bader Ginsburg: --Can you explain the difference that -- you make a distinction between field preemption and conflict preemption.

Does that have any practical significance at all in this case, because I thought you agreed that the design defect claim would be barred.

Ms Harrington: --Well, we agree that they might be barred.

I think this case comes to the Court without any real development of the plaintiff's claims.

All we have is what they stated in their complaint.

Their complaint incorporates a master complaint which applies to all sorts of different kinds of plaintiffs.

So I think it's really hard to understand exactly what their claims are, what the effects of their claims would be with respect to the design defect claims.

And so in our view they would -- the design defect claims would be preempted if they would have the effect of dictating the character of equipment that could be on a locomotive while it was in use.

Chief Justice John G. Roberts: --Thank you, counsel.

Ms Harrington: Thank you.

Chief Justice John G. Roberts: Mr. Hacker.

ORAL ARGUMENT OF JONATHAN D. HACKER ON BEHALF OF THE RESPONDENTS

Mr. Hacker: Mr. Chief Justice, and may it please the Court:

The LIA as construed by this Court in Napier, in particular in the passage quoted by Justice Breyer, delegates to the DOT the exclusive authority to determine the design and the materials of locomotive equipment.

Petitioners, however, argue that States in fact may dictate locomotive design and materials so long as they do so for some purpose other than safety of use on the line.

But, as again in the passage Justice Breyer pointed out, Napier holds that LA -- LIA preemption is not about the purpose of locomotive equipment regulation and is not about the geographic location of the locomotive on or off the line when the regulation is enforced, as Justice Sotomayor pointed out in the earlier argument this morning.

Regulatory power is broader than purpose.

As Napier says, under the LIA, preemption is about the locomotive equipment itself.

What Napier referred to as the physical elements of the locomotive.

Justice Elena Kagan: Well, Mr. Hacker, could you explain to me, I wasn't sure reading your brief whether you agree or disagree with the government's point that the agency cannot under the LIA issue the kind of rule that I suggested just, you know, saying no asbestos containing brakes because of the danger that those brakes pose to the repairmen.

Mr. Hacker: Frankly, I would have thought it possible.

I would have to defer to the DOT's view.

It seems to me it would have been within DOT's power under the LIA to say a locomotive is not safe to operate if it can't be safely repaired.

Because there is no point in having a locomotive ready to go on the line if it -- as soon as it comes off the line there's a problem that's going to injure those who work with it.

But, we don't need to assert that position to defend the proposition we have now.

Justice Elena Kagan: Well, how is that?

If they are right as to the scope of their authority and maybe they are not right, but if they are right about the scope of their authority why doesn't it follow that these claims would not be field preempted; might be conflict preempted but would not be field preempted because we are no longer in the field.

Mr. Hacker: Because the field is not -- it's not about the repair shop versus not the repair shop, the field is the physical elements of the locomotive itself.

What States cannot do, what DOT has exclusive authority over is the design, the materials and the construction of the locomotive.

Justice Antonin Scalia: But only the design, materials and constructions for use.

If you make that concession, it's only those aspects of design, materials and construction that pertain to use.

And if you take the position that use includes only use on the line and not use when it's being repaired in the repair shop, I think you're in trouble.

Mr. Hacker: I think we are not, Your Honor, because the design doesn't change between the line and the repair shop.

And that's the key.

If a State comes in and says--

Justice Antonin Scalia: It's designed for use.

Mr. Hacker: --I understand, but--

Justice Antonin Scalia: I'm not talking about the word "design"; I'm talking about "design for use".

Mr. Hacker: --But the statute -- the reason the statute gives power to the DOT is to ensure that locomotives are safe for use on the line.

But in order to accomplish that objective, the power they have is plenary over the design itself.

They -- only one entity gets to decide what the design is, and that's DOT.

Justice Anthony Kennedy: It's not clear to me why a railroad executive couldn't say, now I need to use 10 locomotives in this division because I will be using two of them every week in the repair shop to repair them, right?

I don't know why that isn't use, but you don't, you don't seem to agree with that.

Mr. Hacker: Well, I don't necessarily disagree.

We would necessarily accept that proposition.

We are just saying you don't have to go there.

Justice Anthony Kennedy: I know it's use on the line, but it seems to me that the repair shop is an obvious extension of the line.

Everybody knows that they are going to have to spend one day a month in the repair shop, and that's just part of -- of the use.

Mr. Hacker: We don't disagree with you.

Justice Stephen G. Breyer: Why would their law be preempted, a law be preempted, a State law that says: Since the railroad knows that asbestos is dangerous when revealed and since it would be revealed in a repair shop, the railroad has to provide the repair shops with appropriate worker safety equipment; or alternatively, in Lesser, the railroad has to provide for the repair shop's documents to be given to the workers which explain the risks and how they can overcome them.

Now, in respect to that, which I'll lump under various kinds of failure-to-warn claims, how does the act preempt those?

It doesn't affect design of the railroad, nor does it affect the use.

Neither.

Mr. Hacker: I would say -- two points, Your Honor.

First of all, it does affect design because a way to comply with that regulation is to use something other than asbestos.

To change the design.

It's the State saying, because you're using this design, you can only use it lawfully in this State if you do the following two or three things.

Justice Ruth Bader Ginsburg: I thought that that was not the nature of the notice claim.

The design is whatever it is.

But the manufacturer has to issue warnings so that the worker can protect himself against that hazard.

So I thought that -- defective design, yes, I understand your argument.

You would have one standard for on the line and another when it's in the repair shop.

But this is not telling them to change the design in any respect.

It just says "asbestos".

You could take these measures to protect yourself.

Mr. Hacker: At common law, a design -- a failure-to-warn claim was a type of design defect claim.

It was a way of saying, you can't use that design lawfully unless you have the following type of warning.

If you -- you can't assume away the design aspect of it because it still turns on, it's a State conditioning the design.

The LIA and the FLSA and SCAA and OSHA all together solved this problem by -- and FELA, solved this problem by saying, it is the repair shop's responsibility to ensure the safety of workers.

We are not, to be absolutely clear -- Ms. Harrington was incorrect when she said: We don't believe that repair shop States have the power to impose workplace conditions to protect employee safety protection in the repair shop.

They do.

Justice Stephen G. Breyer: No, no, no.

That argument would prevent States doing what they can do lawfully which is to regulate the repair shop.

Because with any given repair, with many of them you could say, well, we wouldn't have to -- we could just change the locomotive design, for example.

It carries beds with it so that the workers who are repairing it get adequate sleep.

I mean, that isn't an answer to the argument that it doesn't affect design to say well, they could comply with it by changing design, I don't think.

Mr. Hacker: Well, what we could say is that generally applicable laws that govern the repair shop -- States have the authority to the extent not preempted by OSHA, States have authority to require workplace conditions and to require employers to protect employees working.

But what they can't do is tell manufacturers, here's the conditions under which you can use this design, sell this design, distribute the design and these materials lawfully within the State.

Justice Antonin Scalia: What would apply to the repair shop would also apply to the locomotive in use, I, suppose, and it would be of little comfort to the manufacturer that although the engine he has manufactured has been certified as safe for use by the Secretary, he is liable unless he warns the engineer: Oh, it isn't safe for use in these circumstances; I have to give you warning.

I mean, I cannot imagine that that's what -- that that's what the statute means as applied, at least to the use of the engine on the -- on the tracks.

Mr. Hacker: Well, we agree with that.

We also think it applies with respect to manufacturers' liability in the repair shop for the reason I said earlier.

The locomotive doesn't change.

So when it's certified as safe for use on line, it can't be -- and the locomotive manufacturer knows everything they know by looking at DOT regulations.

It can't be that if they can come along and say: No, no, you can't use any of that design, you have to use this completely different design because this will make it safe in the repair shop.

Justice Stephen G. Breyer: What you're saying is because when you open up the box, something no one does on line, you will expose yourself to risks.

And what we are saying is, therefore, you must post a notice that tells workers about those risks.

And indeed there is a conflict, conflict preemption will take care of it.

But why should that kind of thing fall within the scope of field preemption even under Napier which, of course, referred to equipment while this rule doesn't.

It refers to a sign.

You're not going to change the equipment.

Mr. Hacker: Well, for the reason I said earlier, Your Honor, which is, you don't know in advance.

If you say, in theory, a State can adopt a warning requirement specific to a design otherwise approved by the DOT, you don't know in advance whether the warning requirements -- the manufacturers will be able to easily comply with all 50 different types of warning requirements and whether or not the warning requirements -- some will be so stringent that it will be easier to simply adopt a different design.

The point of the LIA is to take that kind of decision making out of the State's hands and put it into a Federal authority which can make the relevant and appropriate decisions as to what designs are unlawful.

Justice Anthony Kennedy: Suppose the allegation is it's the failure to warn workers to use a special kind of mask that's very important if you're working near asbestos.

That's the claim they want.

Now, are you saying that the manufacturer cannot be required to give that warning?

Mr. Hacker: That's correct.

Justice Anthony Kennedy: Are you also saying the railroad cannot be forced to give that warning in its repair shop?

Mr. Hacker: The railroad can be required to ensure the safe protection of employees that work there.

A workplace safety sign isn't really a warning claim.

Justice Anthony Kennedy: No.

No.

Can the railroad be held liable for failing to tell the worker to use the mask?

Mr. Hacker: It can be under OSHA, be held liable for that.

Justice Antonin Scalia: Can the manufacturer be liable for failing to tell the railroad?

Mr. Hacker: No.

That would be a failure to--

Justice Antonin Scalia: How is the railroad going know whether it's unsafe or not?

Mr. Hacker: --Because they have the--

Justice Antonin Scalia: How is the railroad going to know whether there is asbestos in there unless the manufacturer at least tells the railroad, even it doesn't have to tell the worker?

Mr. Hacker: --Railroads have a duty under FELA to ensure a safe workplace environment.

That's clear.

And so they have adequate incentives to ensure that their employees have a safe work environment.

If they are -- if a worker's exposed to asbestos--

Justice Anthony Kennedy: But you could -- could State law say you need a special kind of mask?

Mr. Hacker: --Well, not under the current regime because FELA would preempt any claim by a railroad worker.

So there wouldn't be -- there isn't room for State law.

Justice Anthony Kennedy: What about an independent contractor who is not covered by [= FELA]?

Mr. Hacker: Could be -- could not have a claim against the manufacturer, an independent contractor would not have claim against the manufacturer--

Justice Anthony Kennedy: Under State law which by hypothesis says you need this very special kind of mask.

It's required only in Illinois.

Mr. Hacker: --Right.

The manufacturer could not be held liable under that State law.

That would be a condition on the design, an effort by the State to prescribe the condition, the type of design that can be--

Justice Anthony Kennedy: Could the railroad be held liable for failure to do that kind of mask under State law if it's not a FELA worker?

Mr. Hacker: --If it's a generally applicable law about asbestos use, yes.

I would say at some point a law like that that's directed to a particular type of equipment becomes potentially conflict preemptive because it puts the condition on the design of the particular equipment.

States are free to enforce generally applicable laws about safe workplace environments, asbestos handling.

Justice Anthony Kennedy: Let me ask this question.

Is it your position that the engine is as much in use when it's in the shop as when it's running on the track?

Is that your position?

Mr. Hacker: We don't have a problem with that position.

We don't have -- we don't have a -- because we don't believe you have to establish that it's in use in the repair shop to establish that the preemption described by Justice Brandeis in Napier controls, because the preemption he was describing was -- the regulatory authority was over the equipment itself which is the same exact equipment.

A railroad -- a locomotive designed a particular way doesn't change when it enters the repair shop, so it's designed to be fit for service.

Justice Anthony Kennedy: Well, the reason it seems to me somewhat important is that I can't conceive of 50 different State regulations for the kind of gloves and things that the engineer has to wear on -- when he is running the train on the track, and if that's so, it seems to me it would help you to say that the shop was the same but you seem to say the shop was different.

Mr. Hacker: Well, I only mean to say that our position doesn't change whether or not the shop is different; because it's not, the LIA preemption -- LIA regulation isn't about repairing.

The DOT may well have authority -- they seem to think not -- over repairs under the LIA; but what the LIA is about is the design and the materials themselves, and States can't say for themselves what a better or more preferable or a locomotive design is for any other reason.

The Respondents' brief and reply brief on page 5 makes an interesting point.

They think they have proved their case when they say the LIA doesn't for example permit the DOT to impose a U.S. steel requirement, a domestic content requirement on locomotives.

The implication would be, of course, that a State could, because it's outside the field as Petitioners define it, that a State could say locomotives can only be used within our State if they are made of U.S. steel.

I don't think that makes any sense at all.

It can't possibly be right, and the reason it's not right is that it misunderstands preemption under the LIA as described by Napier.

Of course it's within the general authority of the DOT to determine that a locomotive should be made with U.S. steel, but that authority can be abused.

It might be arbitrary and capricious; it's not permissible for them to do that.

But the content of locomotives is exclusively within the jurisdiction of the DOT, and States can't decide for themselves that a locomotive otherwise compliant under Federal regulations is--

Justice Antonin Scalia: Well, they are -- they are not saying here you have to manufacture it a certain way.

They are just saying if you manufacture it in a manner that we consider unsafe, you have to warn people.

Mr. Hacker: --Well, that's part of their argument, but their main claim is the first one, which is that you are prohibited in this State from using asbestos.

It can't happen, even though Federal regulations said you could.

That's the main part of their claim.

They have a secondary claim which is failure to warn, and which we submit is essentially a type of design defect claim that says if you're going to use asbestos, then you have to warn.

And we don't even know -- as Miss Harrington is describing, there's a lot -- there would be a lot to be determined if conflict preemption applies to failure to warn in a given case.

That's the whole problem, Your Honors, is that the LIA was saying we don't want to expose manufacturers to the potential of future State court litigation.

Justice Anthony Kennedy: Well, do we have to reach the failure to warn problem in this case?

Mr. Hacker: I think it's presented here.

I mean, we think it's completely caught up in the design defect issue, but the other side is -- is trying to defend by saying we have a design defect claim but we also have a failure to warn claim; but we submit the two are bound up together.

Justice Sonia Sotomayor: I -- if I'm understanding your argument correctly, you're saying that if Napier controls the design of -- and a locomotive part, that includes any design defect that's encompassed by State law, whether it's design in its traditional sense or failure to warn?

Mr. Hacker: That's correct.

Justice Sonia Sotomayor: That's basically what the court below said?

Mr. Hacker: That's correct and that's what Judge Koscinski said in the Law case, and Judge Winters said in--

Justice Sonia Sotomayor: Just as a practical matter, I'm assuming that some railroad repair yards are owned by the railroad itself, so the railroad repair people are railroad employees, correct?

Mr. Hacker: --I -- I think that's right, yes.

Justice Sonia Sotomayor: Are there some that are not?

They are not considered railroad employees but they are considered something else?

Mr. Hacker: I don't -- two things I would say.

I don't know the answer for sure but I think there probably are, but there are also repair shops that then -- that are owned by other railroads, and that's part of a problem that manufacturers have, is you don't know when you sell the -- the locomotive to a railroad who is going to be servicing under what conditions.

Justice Sonia Sotomayor: Just to be -- just to be clear, under your view of the LIA there could be other laws that preempt it or prohibit it?

States can tell railroad yards put signs up, wear protective equipment, do whatever it is to protect the worker from this repair.

Mr. Hacker: Yes.

Justice Sonia Sotomayor: They just can't tell them--

Mr. Hacker: Yes.

Justice Sonia Sotomayor: --include a warning on the brake, or to--

Mr. Hacker: Specific to the equipment itself.

What we would say is the State has to take the locomotive equipment as a given.

It is what it is.

And then if that locomotive equipment creates risks for workers, the employer may have to do things to account for those risks, but the equipment can't be regulated by the State.

The equipment itself can't be regulated by the State in any respect.

Justice Elena Kagan: Mr. Hacker, do you think we would decide Napier the same way if it came to us today?

Mr. Hacker: I do think so, Your Honor.

Of course I don't think that matters because Napier is what it is and has been relied upon for 85 years.

But I think there would be a very good argument that it would be decided the same way today under the Ray case that Justice Sotomayor mentioned, was a very similar kind of delegation of regulatory authority; and the Court held that there was the same kind of field preemption.

There are some differences one could discuss, but Napier is what it is, as I say.

If The Court has no more questions I'll cede the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Frederick, you have 4 minutes.

REBUTTAL ARGUMENT BY DAVID C. FREDERICK ON BEHALF OF THE PETITIONERS

Mr. Frederick: Manufacturers clearly have the best information about the dangerous aspects of their products, and they issue warnings and instructions in manuals and provide all kinds of information so that persons working on their equipment are going to know the special hazards.

It doesn't make sense to inoculate those manufacturers from liability where they have the best information to ensure that repair workers are not going to be exposed to risks.

With respect to the point about being on the line, the whole idea behind the Locomotive Inspection Act was not just for use, Justice Kennedy, but also

"safe to operate on the railroad line. "

Under the regulations, and this is well established, yard limits are drawn outside the bowl where switching operations and repair operations occur, so that everybody knows where the Federal LIA standard applies and where it doesn't.

And the reason why the LIA has had this kind of history with respect to repair work goes to the history of -- behind this Court's recognition of the Commerce Power.

Up until the New Deal era it was well settled that Congress could not legislate on intrastate activities, which are peculiar to repair yards, and so this Court when it decided the Shanks case in the mid 1910s held that a railroad worker could not bring an FELA claim because his work was not in interstate commerce; it was only in intrastate commerce; and that is why the ICC throughout this entire period never devoted regulations to repair yards, because this Court's Commerce Clause jurisprudence precluded Federal regulatory activity for that.

So if you look at this case from an historical perspective, Justice Kagan, it's not clear that the full parameters of the way the Court would explain Napier would be the same, because its approach to field preemption is so different after the New Deal era than it was before the New Deal era; and that is also why when this Court looks at regulatory implications of common law claims, it has had no problem allowing State law to have design defect claims with respect to planes, cars, motorboats and trucks, even though the implications of a State law claim might find liability for the insufficiency of the design imposing an unreasonable risk to the person who is exposed to that risk with respect to that interstate modality.

There is no reason why you have to have a broad and expansive view of the field here because Congress subsequently has enacted in this very area to give the Federal agency preemptive authority when it deems that authority appropriate; and as the Federal Government says--

Chief Justice John G. Roberts: And it knows -- it knows about Napier and what's been going on for 85 years, and if it wants to pull back on the preemptive effect of the provisions interpreted in Napier, it's free to do that, too.

Mr. Frederick: --It did so, though, Your Honor in 49 U.S.C. 20106, where it said that unless and until the Federal Government issues a regulation in a particular field, the States are allowed to have their rule be in effect.

Justice Ruth Bader Ginsburg: That was -- that was the Safety Act and they didn't amend the Locomotive Act.

The Locomotive Act is what it was and they didn't put that clause in it.

Mr. Frederick: But that's why, Justice Ginsburg, the point here is how broadly do you define the scope of the field, and Napier defined it in an historical context that we just don't live in any more; and there is no reason to give manufacturers a complete pass from liability when they have the best information to advise railroad -- railroads and railroad workers how to work on their equipment in a safe way without exposing their workers to unnecessary risks.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Elena Kagan: Justice Thomas has our opinion this morning in case 10-879, Kurns versus Railroad Friction Products Corporation.

Justice Clarence Thomas: This case comes to us on a writ of certiorari to the United States Court of Appeals for the Third Circuit.

George Corson worked as a welder and a machinist in loco in the locomotive repair and maintenance facilities.

His duties included installing brake shoes and locomotives -- on locomotives and stripping insulation from locomotive boilers.

Corson was diagnosed with cancer following his retirement.

Corson and his wife filed suit in Pennsylvania State Court against various defendants, including respondents here, alleging that Corson was injured as a result of exposure to asbestos during the course of his employment.

According to the complaint, respondents' manufactured or distributed locomotive parts containing asbestos that were handled by Corson.

The complaint asserted state law claims that respondents' products were defectively designed and that respondents failed to warn of the dangers posed by asbestos.

Corson passed away after the complaint was filed and Gloria Kurns, the executrix of the estate, was substituted as a party.

She is the petitioner here along with Corson's widow.

Respondents removed the case to federal court.

The District Court granted summary judgment to respondents, holding that petitioner's state law claims were preempted by the Federal Locomotive Inspection Act.

The Third Circuit affirmed.

In an opinion filed today with the clerk, we also affirm.

The Locomotive Inspection Act is silent as to its preemptive effect, but this Court held in Napier versus Atlantic Coast Line Railroad Company that the Act manifest an intention to occupy the entire field of regulating locomotive equipment.

Petitioners do -- and ask us to overrule Napier and we find that Napier compels the conclusion that petitioner's tort claims were preempted.

We first reject petitioner's claim that a subsequently enacted statute, the Federal Railroad Safety Act narrowed the Locomotive Inspection Act's preemptive scope.

The Railroad Safety Act leaves preexisting statutes like the Locomotive Inspection Act intact.

We, therefore, conclude that the Railroad Safety Act left the preemptive reach of the Locomotive Inspection Act in place.

Petitioners -- petitioners alternatively contend that their claims do not fall within Napier's definition of the field preempted by the Locomotive Inspection Act.

They argue that the state law claims arising from the repair or maintenance of locomotives as opposed to claims arising from the use of locomotives on the railway do not fall within the preempted field.

That argument is inconsistent with Napier's holding that Congress “Manifested the intention to occupy the entire field of regulating locomotive equipment.”

Napier did not distinguish between hazards arising from repair and those arising from use on the line.

We are also unpersuaded by petitioners' argument that their failure to warn claims do not fall within the preempted field.

A failure to warn claim alleges that a product itself is unlawfully dangerous unless accompanied by warnings or instructions deemed sufficient by a state law.

Petitioners' failure to warn claims are therefore directed at the equipment of locomotives and fall within the preempted field.

For these reasons and other reasons discussed in our opinion, the judgment of the Court of Appeals is affirmed.

Justice Kagan has filed a concurring opinion.

Justice Sotomayor has filed an opinion concurring in part and dissenting in part in which Justices Ginsburg and Breyer join.