Norfolk S. Ry. Co. v. Bogle

• Decision Date: 10 October 2007
• Docket Number: No. 2006-1025.,2006-1025.
• Citation: 2007 Ohio 5248,115 Ohio St.3d 455,875 N.E.2d 919
• Parties: NORFOLK SOUTHERN RAILWAY CO., Appellant v. BOGLE et al., Appellees.
• Court: Ohio Supreme Court

875 N.E.2d 919

115 Ohio St.3d 455

2007-Ohio-5248

NORFOLK SOUTHERN RAILWAY CO., Appellant v. BOGLE et al., Appellees.

No. 2006-1025.

Supreme Court of Ohio.

Submitted May 1, 2007.

Decided October 10, 2007.

Gallagher Sharp, Kevin C. Alexandersen, Colleen A. Mountcastle, and Holly M. Olarczuk-Smith, Cleveland, for appellant.

Squire Sanders & Dempsey, L.L.P., and Charles F. Clarke, Cleveland, urging reversal for amicus curiae, Association of American Railroads.

O'DONNELL, J.

{¶ 1} The central issue presented for our consideration concerns whether the application of the prima facie filing requirements of 2003 Am.Sub.H.B. 292 ("H.B. 292"), as codified in R.C. 2307.92, to asbestos claims arising out of the Federal Employers' Liability Act ("FELA") or the Locomotive Boiler Inspection Act ("LBIA") infringes upon the Supremacy Clause of the United States Constitution and therefore is preempted by federal law. For the reasons that follow, we have concluded that the appellate court erred in finding preemption, and therefore, we reverse the judgment of the court of appeals.

H.B. 292

{¶ 2} Based on its belief that "[t]he current asbestos personal injury litigation system is unfair and inefficient, imposing a severe burden on litigants and taxpayers alike," the General Assembly enacted H.B. 292. H.B. 292, Section 3(A)(2), 150 Ohio Laws, Part III, 3970, 3988. By the end of 2000, "over six hundred thousand people [had] filed asbestos claims" nationwide, and Ohio had "become a haven for asbestos claims and, as a result, is one of the top five state court venues for asbestos filings." Id. at Section 3(A)(3)(a) and (b), 150 Ohio Laws, Part III, 3989. The General Assembly further noted that in Cuyahoga County alone, the asbestos docket increased from approximately 12,800 cases in 1999 to over 39,000 cases by October 2003. Id. at Section 3(A)(3)(e), 150 Ohio Laws, Part III, 3989. Eighty-nine percent of claimants do not allege that they suffer from cancer, and "[s]ixty-six to ninety per cent of these non-cancer claimants are not sick." Id. at Section 3(A)(5), 150 Ohio Laws, Part III, 3990.

{¶ 3} Upon these considerations, the General Assembly enacted R.C. 2307.91 through 2307.98 to serve four primary purposes: (1) to give priority to those claimants who can demonstrate actual physical harm caused by asbestos, (2) to preserve the rights of those who were exposed for future action, (3) to enhance the state's system of supervision and control over asbestos-related litigation, and (4) to conserve the scarce resources of the defendants so as to allow compensation for cancer victims while also securing a right to similar compensation for those who suffer harm in the future. Id. at Section 3(B), 150 Ohio Laws, Part III, 3991.

{¶ 4} At issue here are R.C. 2307.92 and 2307.93. R.C. 2307.92(B) provides, "No person shall bring or maintain a tort action alleging an asbestos claim based on a non-malignant condition in the absence of a prima-facie showing" of physical injury caused by asbestos exposure. The prima facie showing requires the claimant to submit a report containing medical findings and to include a demonstration "that the exposed person has a physical impairment, that the physical impairment is a result of a medical condition, and that the person's exposure to asbestos is a substantial contributing factor to the medical condition." Id. The statute also contains prima facie filing requirements for asbestos claimants who bring a wrongful-death action, and for claimants who are smokers suffering from lung cancer. R.C. 2307.92(C) and (D).

{¶ 5} In cases filed after the effective date of the legislation, a claimant has 30 days after initiating the action to comply with these prima facie requirements. R.C. 2307.93(A)(1). In cases pending at the time of the bill's passing — such as those in the instant matter — claimants have 120 days from the effective date to comply. R.C. 2307.93(A)(2). Failure to file the report results in administrative dismissal, a procedure by which the case is essentially rendered inactive, but the court retains jurisdiction over the matter. R.C. 2307.93(C). A claimant may move to reinstate the case to the active docket if the claimant "makes a prima-facie showing that meets the minimum requirements specified in division (B), (C), or (D) section 2307.92 of the Revised Code." Id.

The Supremacy Clause and Preemption

{¶ 6} The Supremacy Clause of the United States Constitution provides that "the Laws of the United States * * * shall be the supreme Law of the Land; * * * any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Clause 2, Article VI, United States Constitution. The clause grants Congress the power to preempt state laws. See Jenkins v. James B. Day & Co. (1994), 69 Ohio St.3d 541, 544, 634 N.E.2d 998, citing In re Miamisburg Train Derailment Litigation (1994), 68 Ohio St.3d 255, 259, 626 N.E.2d 85.

{¶ 7} The United States Supreme Court has identified three methods by which Congress may preempt state legislation. First, it may expressly state that an enactment preempts applicable state law. Shaw v. Delta Air Lines, Inc. (1983), 463 U.S. 85, 95-98, 103 S.Ct. 2890, 77 L.Ed.2d 490. Second, Congress may preempt an entire field of activity, without expressly stating its intention to do so, if an intent to preempt can be inferred "from a `scheme of federal regulation * * * so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' or where an Act of Congress `touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.'" (Ellipsis and brackets sic.) English v. Gen. Elec. Co. (1990), 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65, quoting Rice v. Santa Fe Elevator Corp. (1947), 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447. Finally, Congress preempts state law when a state law actually conflicts with a federal law, i.e., "where it is impossible for a private party to comply with both state and federal requirements." English, 496 U.S. at 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65.

{¶ 8} This case involves field preemption, as Congress "intended to occupy the field" when it passed the FELA, Section 51, Title 45, U.S.Code and LBIA, Section 20701, Title 49, U.S.Code. Napier v. Atlantic Coast Line RR. Co. (1926), 272 U.S. 605, 613, 47 S.Ct. 207, 71 L.Ed. 432. Despite the preemption of substantive state regulation, however, the court has instructed that "FELA cases adjudicated in state courts are subject to state procedural rules." St. Louis Southwestern Ry. Co. v. Dickerson (1985), 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303. State procedural rules therefore govern FELA claims in state court.

{¶ 9} In this instance, the FELA creates a claim based upon, inter alia, a violation of the LBIA. The LBIA "does not purport to confer any right of action upon injured employees. It merely makes violation of its prohibitions `unlawful.' Yet it has been held consistently that the Boiler Inspection Act supplements the Federal Employers' Liability Act by imposing on interstate railroads `an absolute and continuing duty' to provide safe equipment." Urie v. Thompson (1949), 337 U.S. 163, 188, 69 S.Ct. 1018, 93 L.Ed. 1282, quoting Lilly v. Grand Trunk W. RR. Co. (1943), 317 U.S. 481, 485, 63 S.Ct. 347, 87 L.Ed. 411.

Procedural History

{¶ 10} This case began when four claimants, Homer Bogle, Charles Weldon, William Monroe, the administrator of the estate of Worth Oliver Bryant, deceased, and Eric Wiles, individually and in his capacity as executor of the estate of Larry Wiles, filed separate suits against Norfolk Southern Railway Company alleging asbestos-related injuries under the LBIA and seeking relief pursuant to the FELA. After the claimants filed suit, the General Assembly enacted H.B. 292, which required claimants with cases pending at the time of enactment to comply with its provisions requiring a medical report as described in the statute. The claimants, however, failed to comply with these requirements within the prescribed 120-day time period.

{¶ 11} In response to their failure, Norfolk filed this action seeking a declaration that R.C. 2307.92 applies to these claimants and that its requirements do not violate the Supremacy Clause of the United States Constitution. The trial court concluded that the requirements violated the Supremacy Clause because substantive rights created by federal statute — in this case the FELA and LBIA — "cannot be lessened or destroyed by a rule of practice." Norfolk S. RR. Co. v. Ferebee (1915), 238 U.S. 269, 273, 35 S.Ct. 781, 59 L.Ed. 1303. In the trial court's view, "application of H.B. 292 to the instant cases is preempted by the FELA and LBIA. Furthermore, all pending and future FELA/LBIA cases filed by plaintiffs pursuant to R.C. § 2307.93, et seq., are preempted by that extensive body of federal jurisprudence."

{¶ 12} Norfolk appealed that determination to the Cuyahoga County Court of Appeals. The appellate court affirmed the trial court's judgment, reasoning that the requirements of R.C. 2307.92 "would `gnaw' at the FELA/LBIA claimants' substantive rights to assert a cause of action under federal law in a state court" and that the claimants "would essentially be indefinitely precluded from asserting their federal rights." Norfolk S. Ry. v. Bogle, 166 Ohio App.3d 449, 2006-Ohio-1540, 850 N.E.2d 1281, ¶ 26. The appellate court held that the application of the statute to asbestos claims arising under the FELA and/or the LBIA infringes on the Supremacy Clause of the United States Constitution and thus is preempted by federal law. Id. at ¶ 30.

{¶ 13} The case is now before this court upon our acceptance of Norfolk's discretionary appeal.

{¶ 14} Norfolk has asserted one proposition of law: "The medical criteria and the administrative dismissal process set forth in R.C. 2307.92 and R.C. 2307.93...