Hassell v. Budd Co., CONSOLIDATED UNDER MDL 875
| Decision Date | 05 April 2019 |
| Docket Number | E.D. Pa. Civil Action No. 2:09-cv-90863-ER,CONSOLIDATED UNDER MDL 875 |
| Citation | 374 F.Supp.3d 433 |
| Parties | Peggy HASSELL, Individually, and as Personal Representative of the Estate of Billie L. Hassell, Deceased v. The BUDD COMPANY, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Hector L. Sandoval, Sandoval & Waldman, John D. Roven, Roven Kaplan, Houston, TX, for Plaintiff.
Edward P. Abbot, Roy F. Viola, Jr., Hawkins Parnell Thackston & Young, New York, NY, Joseph E. Richotte, Butzel Long PC, Bloomfield Hills, MI, Nathan R. Horne, Segal McCambridge Singer & Mahoney Ltd., Austin, TX, G. Daniel Bruch, Jr., Swartz Campbell, LLC, John C. McMeekin, Rawle & Henderson, Philadelphia, PA, James E. Wynne, Mary Mullin, William J. Kliffel, Butzel Long, Detroit, MI, George Plato Pappas, Wesley Tyler Sprague, Sheehy, Ware & Pappas, P.C., Holli V. Pryor-Baze, John K. Grantham, Akin Gump Strauss Hauer & Feld LLP, Houston, TX, for Defendants.
Before the Court are the motions for summary judgment of railcar manufacturer Defendants The Budd Company ("Budd") (ECF No. 110) and Resco Holdings, L.L.C. ("Resco") (ECF No. 111) (together, "Defendants"), asserting that the claims of Plaintiff Peggy Hassell are pre-empted by federal statutes intended to regulate the entire fields of locomotive equipment and train safety, specifically, the Locomotive Inspection Act ("LIA") and the Safety Appliance Act ("SAA"). Also pending are: motions for judgment on the pleadings by these same Defendants, on the same basis (i.e., pre-emption of Plaintiff's claims) (ECF Nos. 107, 108, and 109), a Daubert motion filed by Plaintiff seeking to exclude an expert report and certain testimony of Francis W. Weir, Ph.D. (ECF No. 113), and a motion by Plaintiff seeking leave of court to amend her complaint to add alternative causes of action. (ECF No. 114).
Plaintiff initially filed this case in state court in Texas, asserting against various defendants Texas state law claims of negligence and strict liability (as well as loss of consortium) by Peggy Hassell, individually and as personal representative of the estate of Billie Hassell. Plaintiff alleged that Decedent died as a result of occupational asbestos exposure from railway equipment. The case was removed to the United States District Court for the Southern District of Texas on grounds of federal question jurisdiction. It was subsequently transferred to this Court, where it became part of MDL-875. (ECF Nos. 1 and 7-9).
This Court dismissed Defendants on the grounds that Plaintiff's claims were pre-empted by the LIA after concluding that the asbestos covered pipes at issue were attached to the locomotive.1 (ECF No. 70). The Third Circuit Court of Appeals vacated this Court's dismissal order and the case was remanded to this Court for further proceedings. (ECF No. 77); In re Asbestos Prod. Liab. Litig. (No. VI) ("Hassell"), 822 F.3d 125 (3d Cir. 2016). The Third Circuit's decision pertained to this Court's procedural handling of the motions to dismiss and did not directly or fully address the merits of the motions regarding the pre-emptive effect of the LIA or SAA. Specifically, the Third Circuit held that this Court had converted the motions to dismiss into motions for summary judgment but improperly applied the summary judgment standard. 822 F.3d at 135. The Third Circuit held that this Court did not view the facts in the light most favorable to Plaintiff and concluded that Plaintiff had properly raised a genuine dispute of material fact regarding whether the pipes at issue were attached to the locomotive. Id. Thereafter, additional limited discovery was conducted (ECF No. 79), and the present motions were filed.
Plaintiff alleges that Decedent, who worked in Texas as an electrician from 1945 until 1989, was exposed to asbestos from insulation that was incorporated into passenger railcars manufactured by Defendants from 1945 until the mid to late 1970s and then sold to his employer, the Atchison Topeka & Santa Fe Railroad. Mr. Hassell died in May of 2009 from malignant mesothelioma
. Plaintiff alleges that asbestos from pipe and "arc chute" insulation in the passenger cars manufactured by Defendants was a cause of his mesothelioma and subsequent death.
Plaintiff's current complaint asserts Texas state law claims sounding in (1) strict product liability, (2) negligence, (3) loss of consortium, and (4) punitive damages. (ECF No. 9). Plaintiff's proposed amended complaint asserts all of these claims and also proposes a new claim for (5) per se negligence2 (as evidenced by alleged violations of the LIA and SAA). (ECF No. 114-1).
Generally, in matters involving substantive law, such as the pre-emption of state law, a federal court applies federal law as construed by the United States Court of Appeals for the circuit in which that court is located. See Various Plaintiffs v. Various Defendants ("Oil Field Cases"), 673 F.Supp.2d 358, 362-63 (E.D. Pa. 2009).
In multidistrict litigation involving cases premised on federal question jurisdiction, "on matters of procedure, the transferee court must apply federal law as interpreted by the court of the district where the transferee court sits." Id. at 362. Therefore, in addressing the substantive and procedural matters herein, the Court will apply federal law as interpreted by the Third Circuit Court of Appeals.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact."
Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997) ). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (citing Fed. R. Civ. P. 56).
The LIA, 49 U.S.C. § 20701 et seq., sets forth safety standards applicable to all "locomotives," their "tender," and "all parts and appurtenances thereto." 49 U.S.C. § 20701 ; see also Kurns v. R.R. Friction Prod. Corp., 565 U.S. 625, 629–30, 132 S.Ct. 1261, 182 L.Ed.2d 116 (2012). "[N]either the LIA nor the SAAs provide for private enforcement; instead, railroad employees can only enforce those statutes through the FELA." Delaware & Hudson Ry. Co. v. Knoedler Mfrs., Inc., 781 F.3d 656, 663 (3d Cir. 2015).
The SAA, 49 U.S.C. § 20301 et seq., was originally enacted in 1893 (prior to the LIA) and has since been amended. Hassell, 822 F.3d at 128. Its purpose is to protect employees working on railways by setting certain safety standards, mandating and regulating specific safety equipment, and imposing strict liability on rail carriers for injuries caused by any violation thereof. Eckert v. Aliquippa & S. R. Co., 828 F.2d 183, 185-86 (3d Cir. 1987) ; Delaware & Hudson Ry. Co., 781 F.3d at 659, 663. The SAA (unlike the LIA) is not limited to regulation of locomotive equipment and, instead, also regulates other aspects of trains, such as equipment on or in passenger railcars. See 49 U.S.C. § 20302 ; Gilvary v. Cuyahoga Valley Ry. Co., 292 U.S. 57, 60, 54 S.Ct. 573, 78 L.Ed. 1123 (1934) ; Delaware & Hudson Ry. Co., 781 F.3d at 663 n.9.
Texas law recognizes a loss-of-consortium claim for spouses injured by intentional or negligent conduct of others, and this claim is a derivative claim. See Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex. 1978). It also recognizes a claim for punitive damages in tort cases involving malicious or grossly negligent conduct. Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 659 (Tex. 2012).
In its decision in Kurns, the United States Supreme Court considered the issue of "whether the LIA pre-empts [injured former railroad employees'] state-law claims that [manufacturers/distributors of asbestos-containing brake shoes, locomotives, and locomotive engine valves] defectively designed locomotive parts and failed to warn [the employee] of dangers associated with those parts." Kurns, 565 U.S. at 630, 132 S.Ct. 1261. The Court held that "[i]n light of this Court's prior decision in Napier [v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926) ], we conclude that petitioners' claims are pre-empted." Id.
The Supreme Court recognized that "[w]e 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." Id. at 631, 132 S.Ct. 1261. It continued, stating that, ...
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