Ordner v. K-H Corp., 97-001ML.

Decision Date19 July 1999
Docket NumberNo. 97-001ML.,97-001ML.
Citation74 F.Supp.2d 150
PartiesJack C. ORDNER and Debra L. Ordner, Individually and on Behalf of their minor children, Corrin D. Ordner and Chelsea L. Ordner, and Jessica F. Ordner, Individually, v. K-H CORPORATION and John Doe Corporations 1-25.
CourtU.S. District Court — District of Rhode Island

Mark B. Decof, Decof & Grimm P.C., Providence, RI, for Jack C. Ordner, Debra L. Ordner, Jessica F. Ordner, plaintiffs.

Benjamin V. White, III, Michael W. Long, Vetter & White, Incorporated, Providence, RI, Leonard A. Spivak, Allen S. Joslyn, Cahill, Gordon & Reindel, New York City, for K-H Corporation, defendant.


LISI, District Judge.

This case is before the Court for consideration of K-H Corporation's objections to a Report and Recommendation issued May 14, 1998. See 28 U.S.C. § 636(b)(1)(B); D.R.I.Loc.R. 32(c). For the reasons outlined herein, the Court adopts Magistrate Judge Lovegreen's recommendation that the defendant's motion for summary judgment should be denied. The Court travels a different route in arriving at that determination.

I. Standard of Review

Pursuant to the mandates of Fed. R.Civ.P. 72(b), this Court reviews de novo K-H's written objections to the magistrate judge's Report and Recommendation. See Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 11, 13 (1st Cir.1992) (per curiam) (stating that district court should employ de novo standard when reviewing findings and recommendations made pursuant to 28 U.S.C. § 636(b)(1)(B)).

In reviewing a motion for summary judgment, the district court should grant such a motion if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence on that issue, viewed in a light that is most agreeable to the non-movant, is "sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A fact is "material" if a dispute over that fact "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. Facts

The Court recounts the undisputed facts in a light most favorable to the non-moving party, here the plaintiffs. See, e.g., One Nat'l Bank v. Antonellis, 80 F.3d 606, 608 (1st Cir.1996).

On September 3, 1986, the Liquid and Bulk Tank Division of Fruehauf Corporation ("Fruehauf") manufactured, designed, constructed, and tested a Department of Transportation (DOT) Specification MC 306 cargo tank1 ("Tanker"), serial number 1H4TO4324HK003001. Fruehauf constructed the Tanker to transport hazardous materials. Pursuant to federal regulations then extant, Fruehauf equipped the top of the Tanker with guards to protect the vehicle's manhole assemblies in the event of a rollover. The guards consisted of two inverted, "V"-shaped rails that ran the length of the Tanker on either side of the manhole assemblies. Fruehauf affixed end plates to the rails, which were higher than any part of an individual manhole assembly.

On or about March 27, 1994, the plaintiff Jack Ordner ("Ordner") was operating the Tanker when it rolled over and gasoline began to spill from it. The gasoline ignited, causing Ordner to suffer severe burn injuries as a result of the accident. Ordner and the other plaintiffs (collectively "Plaintiffs") filed this action on January 3, 1997, naming Fruehauf Trailer Corporation, Fruehauf's successor, as the sole party defendant.

After filing the initial complaint, a number of procedural skirmishes ensued. Plaintiffs filed two amended complaints in an attempt to secure the proper party defendants. The parties then agreed to dismiss certain defendants from the action. As a result, K-H Corporation ("K-H") and the John Doe Corporations remain the only party defendants to this action. K-H assumes the liabilities of Fruehauf Trailer Corporation as its successor corporation.

Plaintiffs' Second Amended Complaint alleges that K-H was negligent when it designed, manufactured, and tested the "manhole protectors" on the Tanker. The complaint also alleges that K-H was negligent in its failure to warn the product's users of this dangerous condition. Plaintiffs allege that because Defendant manufactured a dangerous instrumentality, it "owed a legal duty ... to exercise the highest degree of care consistent with the practical operation of its business" to prevent injury to the foreseeable user or operator. The complaint also sounds in strict products liability, alleging that the manufacturer distributed a product that was defective and unreasonably dangerous, and that the manufacturer failed to provide an adequate warning of the product's defective and dangerous condition. K-H has moved for summary judgment pursuant to Fed.R.Civ.P. 56.

III. Discussion
A. Introduction

The issue presented in this case is whether certain federal laws preempt Plaintiffs' common law tort claims. K-H argues that 49 U.S.C. § 5125 preempts Plaintiffs' claims. Among other things, that statute preempts certain state "requirement[s]" that are "not substantively the same" as the federal requirements which govern the design and manufacture of containers that are used for transporting hazardous materials. The container involved in this litigation is the Tanker that Fruehauf manufactured on September 3, 1986. Magistrate Judge Lovegreen recommended the denial of K-H's motion for summary judgment, reasoning that Plaintiffs' common law tort claims were not preempted by § 5125.

K-H has objected to the Report and Recommendation on three grounds. First, the defendant contends that the magistrate judge's construction of § 5125 is inconsistent with Congress's desire to create uniform standards to govern the transportation of hazardous materials in intrastate and interstate commerce. Second, K-H argues that the magistrate judge misconstrued one of the relevant federal regulations in deciding that § 5125 did not preempt Plaintiffs' claims. Finally, K-H contends that the magistrate judge improperly determined that the affidavit of Plaintiffs' expert was sufficient to create an issue of material fact that would preclude the entry of summary judgment in the defendant's favor.

B. The Statute

The United States Court of Appeals for the First Circuit has stated: "In determining questions of preemption, a court `must examine the [act's] language against the background of its legislative history and historical context.'" Wood v. General Motors Corp., 865 F.2d 395, 404 (1st Cir.1988) (quoting California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987)). Heeding this mandate, the Court proceeds to a discussion of the relevant statute and its legislative and historical background.

In 1975, Congress enacted the Hazardous Materials Transportation Act ("HMTA"), Pub.L. No. 93-633, 88 Stat. 2156, at §§ 101-02 (1975), "to improve the regulatory and enforcement authority of the Secretary of Transportation to protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." Specifically, § 105 of the HMTA expanded the Secretary of Transportation's authority to regulate the manufacturers of containers and packages used to transport hazardous materials. See H.R.Rep. 93-1083 (1974), reprinted in 1974 U.S.C.C.A.N. 7669, 7679. Additionally, Congress believed that the federal regulations would "preclude a multiplicity of State and local regulations and the potential for varying as well as conflicting regulations in the area of hazardous materials transportation." S.Rep. No. 93-1192, at 37 (1974), quoted in National Tank Truck Carriers, Inc. v. Burke, 535 F.Supp. 509, 516 (D.R.I.1982), aff'd 698 F.2d 559 (1st Cir.1983).

In 1990, Congress amended the HMTA, passing the Hazardous Materials Transportation Uniform Safety Act of 1990 ("HMTUSA"), Pub.L. No. 101-615, 104 Stat. 3244 (1990). The HMTUSA added a section containing congressional findings, some of which are significant for purposes of this litigation. See id. at § 2. First, Congress found that several States and localities had enacted laws and regulations that varied from their federal counterparts. This collection of statutes and regulations, Congress explained, had created "the potential for unreasonable hazards in other jurisdictions" and had confounded the shippers and carriers who were required to comply with "multiple and conflicting" regulatory requirements. See id. Congress also determined that the potential health and environmental risks associated with the transportation of hazardous material made consistency in the laws governing their transport "necessary and desirable." Id. Finally, "[i]n order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels," Congress determined that "Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and foreign commerce" were necessary. Id.

The HMTUSA also made substantive changes to the HMTA's preemption language. Section 112 of the HMTA provided that "any requirement, of a State or political subdivision thereof, which is inconsistent with any requirement set forth in this title, or in a regulation issued pursuant to this title, is preempted." The HMTUSA amended this language to provide a more complex and precise preemption standard. Congress subsequently revised and codified the HMTUSA, see Pub.L. No. 103-272, 108 Stat. 745 (1994) (codified as revised at 49 U.S.C. §§ 5101-5127), and the relevant preemption provision is contained therein at 49 U.S.C § 5125.

C. Preemption
1. Introduction

The Supreme Court of the United States has stated...

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