Little v. Budd Co.

• Decision Date: 03 April 2020
• Docket Number: No. 19-3014,19-3014
• Citation: 955 F.3d 816
• Parties: Nancy LITTLE, individually and as personal representative of the estate of Robert L. Rabe, Plaintiff - Appellee, v. The BUDD COMPANY, INC., Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

955 F.3d 816

Nancy LITTLE, individually and as personal representative of the estate of Robert L. Rabe, Plaintiff - Appellee,

v.The BUDD COMPANY, INC., Defendant - Appellant.

No. 19-3014

United States Court of Appeals, Tenth Circuit.

FILED April 3, 2020

As Corrected April 6, 2020

Toby Crouse, Crouse, LLC, Overland Park Kansas (Vincent E. Gunter, Rasmussen, Dickey & Moore, LLC, Kansas City, Missouri; and Clayton J. Kaiser, Foulston Siefkin LLP, Wichita, Kansas, with him on the briefs), for Appellant.

John Roven, Roven-Kaplan, LLP, Houston, Texas (Blain D. Myhre, Blain Myhre, LLC, Englewood, Colorado, with him on the brief), for Appellee.

Before HOLMES, MURPHY, and PHILLIPS, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Robert Rabe worked as a pipefitter in an Atchison Topeka & Santa Fe Railroad ("ATSF") repair shop. In that capacity, he replaced pipe insulation on passenger cars manufactured by The Budd Company ("Budd"). Rabe died from malignant mesothelioma. Nancy Little, individually and as personal representative of Rabe’s estate, brought state common-law tort claims against Budd, claiming Rabe died from exposure to asbestos-containing insulation surrounding the pipes on Budd-manufactured railcars. A jury ruled in Little’s favor. On appeal, Budd asserts Little’s state tort claims are preempted by the Locomotive Inspection Act ("LIA"), 49 U.S.C. §§ 20701 to 20703. Budd’s theory on appeal is that the claims are preempted because all passenger railcars are "appurtenances" to a complete locomotive. See id. § 20701 (requiring all locomotives and their appurtenances to comply with LIA); Kurns v. R.R. Friction Prods. Corp. , 565 U.S. 625, 637-38, 132 S.Ct. 1261, 182 L.Ed.2d 116 (2012) (holding preempted all state tort claims that attempt to regulate LIA-covered locomotive equipment). Because Budd did not raise this issue before the district court, and because Budd does not seek plain-error review, this particular assertion of error is waived. Alternatively, Budd asserts Little’s tort claims are preempted by the Safety Appliance Act ("SAA"), 49 U.S.C. §§ 20301 to 20306. This assertion, however, is foreclosed by the Supreme Court’s decision in Atlantic Coast Line Railroad Co. v. Georgia , 234 U.S. 280, 34 S.Ct. 829, 58 L.Ed. 1312 (1914). Accordingly, this court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms the district court’s judgment.

II. BACKGROUND

Because the issues raised by Budd on appeal are purely legal in nature, the relevant background facts are mostly procedural in nature. Because this appeal is before this court following a jury verdict, we state the facts in the light most favorable to the jury’s decision. See Macsenti v. Becker , 237 F.3d 1223, 1242 (10th Cir. 2001).

In 2012, Rabe died of malignant mesothelioma. Rabe was a pipefitter for forty years with ATSF’s Topeka car shops, a maintenance facility for non-motorized passenger railcars. No locomotives were serviced at ATSF’s car shops. Budd, a manufacturer of passenger cars, sold hundreds of such cars to ATSF during the 1950s and 1960s.

On arrival at the car shops, passenger cars were hoisted onto tripods to reveal the undercarriage. The car shops employed pipefitters, like Rabe, who worked under the cars removing, repairing, insulating, and reinstalling a maze of steam, water, and air conditioning pipes. All types of pipe were insulated with asbestos; a "cotton-like material" in a black jacket that wrapped around the pipes. Over time, the black jacket deteriorated and the underlying asbestos disintegrated into pieces and particles. After pipefitters stripped the old insulation away from the pipes, laborers disposed of it with shovels, brooms, and wheelbarrows. This created dusty conditions in the car shops.¹

Steam, water, and air conditioning pipes ran alongside one another in the undercarriage of Budd-manufactured passenger cars, with each type of pipe having different terminal connections. Ultimately, after the cars were assembled and assigned to trains, the steam pipes connected to either a boiler in the rear of locomotives or steam generator cars containing their own boilers. These steam generator cars were independent of, and unconnected to, any locomotive. Rabe also worked on asbestos-wrapped air conditioning and water pipes. Each car had its individual water tank and piping, not connected to the steam line. Budd’s mechanical specifications revealed that each air conditioned car during Rabe’s tenure had electro-mechanical compressors not powered by steam. Both water and air conditioning pipes, therefore, had zero connection to any steam line or locomotive.

After Rabe’s death, Little filed an action against Budd for survival and wrongful death. In addition to other claims not at issue in this appeal, Little asserted state law causes of action sounding in negligence, strict liability/design defect, and failure to warn. In response, Budd filed a Fed. R. Civ. P. 12(c) motion for judgment on the pleadings. Budd argued that, taken together, LIA and SAA preempted all state-law claims, whether based on positive or common law, relating to train equipment.²

The district court denied Budd’s Rule 12(c) motion, concluding, at least at the pleading stage, neither LIA nor SAA independently preempted Little’s claims and, therefore, they did not do so jointly. Little v. Budd Co. , No. 16-4170, 2018 WL 398458, at *5-9 (D. Kan. Jan. 12, 2018). As to LIA, the district court concluded Little’s complaint did not conclusively establish that her state-law causes of action were directed at the equipment of locomotives. Id. at *6 (citing In re Asbestos Prods. Liab. Litig. (No. VI) , 822 F.3d 125, 131 (3d Cir. 2016) ). The district court noted Little’s complaint did not establish either that (1) passenger railcars are locomotives or (2) "pipe insulation in passenger railcars is an ‘integral and essential part of a completed locomotive’ " so as to qualify as a part or appurtenance thereof. Id. (quoting S. Ry. Co. v. Lunsford , 297 U.S. 398, 402, 56 S.Ct. 504, 80 L.Ed. 740 (1936) ). As to SAA, the district court concluded its preemptive effect was limited to railcar "safety appliances" and Little’s complaint did not establish that the pipe insulation at issue in this case was a safety appliance for purposes of SAA. Id. at *8. Finally, the district court indicated Budd had identified no precedent for supporting its theory of "joint preemption." Id. at *9 ("[T]his argument theorizes that adding the two Acts together achieves a result that neither Act, by itself, can achieve. [Budd] cites no case law that has reached such a sweeping conclusion.").

After the parties conducted discovery, Budd sought summary judgment. As relevant to the issues on appeal, Budd’s summary judgment motion asserted as follows: (1) Little’s tort claims were preempted by LIA because Rabe "was injured from exposure to carcinogenic insulation that was part of a trainwide heating system powered by the locomotive," meaning "the heating system constituted a locomotive appurtenance"; and (2) Little’s tort claims were preempted by SAA because the asbestos "insulation constituted a railcar safety appliance."

The district court denied Budd’s motion for summary judgment. Little v. Budd Co. , 339 F. Supp. 3d 1202 (D. Kan. 2018). As to the question of LIA preemption, the district court concluded there were disputed issues of fact that precluded the determination as a matter of law that railcar heating systems were locomotive appurtenances. Id. at 1211-13. In particular, there was evidence in the record indicating Budd "designed the main steam lines of all the passenger rail cars to connect to each other and their power source—which sometimes (albeit ‘most infrequently’) was a steam generator car, not a locomotive." Id. at 1212. In addition, the district court noted evidence existed demonstrating that asbestos insulation was used on water and air conditioning pipes, pipes that were never connected to the steam lines or the locomotive. Id. at 1213. As to SAA preemption, the district court ruled as follows:

the court concludes that Congress did not intend to occupy the entire field of railcar safety appliances when it enacted the SAA. Instead, the court concludes, Congress just intended to regulate the subject of those devices that are listed in the statute. Plaintiff’s state law claims here rest on her father’s exposure to asbestos-containing pipe insulation. The SAA never lists pipe insulation as one of the safety features that railroad carriers must attach to their railcars. The court thus holds that the SAA does not preempt plaintiff's state law claims based on asbestos-containing pipe insulation.

Id. at 1217 (quotation, citation, and footnote omitted). In denying Budd summary judgment, however, the district court made clear Budd was entitled to reargue both of its preemption defenses "on a full trial record." Id. at 1218.

Before trial, both parties filed motions in limine to limit expert opinion regarding the coverage of LIA and SAA. Little sought to prevent Budd’s Industrial Hygienist from offering opinions that asbestos pipe covering constituted a safety appliance. Budd sought to prevent Little’s expert, a retired Federal Railroad Administration ("FRA") official, from explaining the FRA’s application of LIA and SAA. The parties ultimately resolved these dueling motions through a "Stipulation Regarding Federal Preemption." Budd agreed not to argue before the jury that pipe insulation was a safety appliance, a "device intended for the safety of employees," or a "locomotive part or appurtenance." Little agreed to withdraw the video of her FRA expert.

At the close of Little’s case, Budd filed a Fed. R. Civ. P. 50(a) "Motion for Directed Verdict based on Federal Preemption." The motion reasserted Budd’s claim SAA preempts all forms of state regulation over railcar equipment intended for the protection and safety of railroad employees, not just the specific safety appliances listed in the Act....