Federal Preemption in Asbestos Cases

Decisions in our library in which the court ruled on federal preemption (other than maritime or FELA): 67 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

Under the Constitution's Supremacy Clause, federal law can override (preempt) state law. Defendants in asbestos cases have argued that federal statutes and regulations bar state-law claims about their products.

The best-known example involves railroads. In Kurns v. Railroad Friction Products Corp. (2012), the U.S. Supreme Court held that the Locomotive Inspection Act preempts state-law design-defect and failure-to-warn claims about locomotive equipment, including asbestos brake shoes and insulation. An employee of a covered railroad may still bring a FELA claim against the railroad itself, and the Act can help prove that claim.

Other preemption arguments in asbestos cases have involved federal regulation of products and workplace safety. Courts decide each argument by the specific federal law involved, and most have not found broad preemption of asbestos claims. The government contractor defense is related but separate: it is a federal common-law defense with its own requirements, not preemption by a statute.

Alabama

• General Motors Corp. v. Kilgore (2002). The Federal Locomotive Inspection Act occupies the field of locomotive equipment and safety, so state-law tort claims against locomotive manufacturers over asbestos-containing components are preempted, even absent a specific federal asbestos regulation.

California

• Elorreaga v. Viacomcbs Inc. (2024). Boyle v. United Technologies is a preemption case and does not supply the government contractor standard for federal maritime claims. Contractors may instead assert the Yearsley government contractor defense against such claims, so the district court had to consider it.
• Elorreaga v. Rockwell Automation, Inc. (2023). The Boyle government contractor defense rests on preemption of state law, so it does not apply to claims brought under federal maritime law. Plaintiffs' evidence of exposure to each defendant's products and of a substantial contributing factor was enough to create a genuine factual dispute.
• Hart v. Special Electric Company, Inc. (1st Appellate District, 5th Division, 2018). A Chapter 11 plan that allows insurers to defend claims under applicable state law does not preempt Wisconsin's two-year claims period for dissolved corporations. A dissolution notice that omits the required description of claim information has only a technical defect, which does not bar the limitations period absent prejudice to the claimant.
• Murat v. Exxon Mobil Corp. (2nd Appellate District, 4th Division, 2015). Under the Longshore Act, a vessel owner is liable to a ship repair contractor only for breach of the turnover, active control or intervention duties. A plaintiff must produce evidence of the manner and circumstances of asbestos exposure to show such a breach, and a mere possibility of exposure is not enough.
• Harris v. CBS Corporation (2012). A defendant seeking transfer under § 1404(a) must show the convenience factors favor it, and the Plaintiffs' choice of forum receives substantial deference. Field and conflict preemption could not be resolved on a motion to dismiss because of disputed facts about Navy control, the combatant activities defense did not reach peaceful training in Idaho, and an ordinary tort suit between private parties did not raise a nonjusticiable political question.
• Haver v. BNSF Railway Company (2nd Appellate District, 4th Division, 2010). Pleadings delimit the issues on summary judgment, so a plaintiff cannot defeat the motion with a new unpleaded factual theory raised in opposition without seeking leave to amend the complaint. Claims based on asbestos in locomotives are preempted by the federal Locomotive Boiler Inspection Act.
• Ransford v. Griffin Wheel Company, Inc. (1st Appellate District, 2nd Division, 2009). State common law tort claims over asbestos in locomotive and rail car brake equipment are preempted by the Locomotive Boiler Inspection Act and the Safety Appliances Act, which the Federal Railroad Safety Act did not displace; the California Supreme Court's Scheiding and Carrillo decisions bind the court.
• Frastaci v. Vapor Corporation (1st Appellate District, 4th Division, 2007). The Locomotive Boiler Inspection Act preempts state tort claims against locomotive manufacturers over the design and materials of locomotives, including asbestos, whether or not the locomotive was "in use" or off line in a roundhouse or repair shop.
• Scheiding v. General Motors Corp. (1st Appellate District, 2nd Division, 1998). The Locomotive Boiler Inspection Act occupies the field of locomotive equipment design, manufacture and materials, so it preempts state tort claims against locomotive manufacturers within that field. The court held that Napier v. Atlantic Coast Line still controls and that Medtronic and Silkwood did not undermine it.

Delaware

• In re WR Grace & Co. (2012). A § 524(g) asbestos trust and channeling injunction may be confirmed where they are fair and equitable in light of the contributions made to the trust, they cover only derivative third-party liability, and the plan treats similar claims in substantially the same manner. Bankruptcy Code § 1123(a)(5)(B) preempts anti-assignment clauses in insurance policies so that the policy rights can be transferred to the trust.
• In re WR Grace & Co. (2012). A Chapter 11 asbestos plan satisfies Section 524(g) and the Bankruptcy Code if its trusts, channeling injunction, claim classifications and payment procedures treat similar claims alike. Liability insurance policies and their proceeds are property of the debtor's estate, and Bankruptcy Code Section 1123(a)(5)(B) preempts anti-assignment clauses in insurance policies.

Idaho

• Stephens v. Union Pacific Railroad Company (2018). Field preemption under the Locomotive Inspection Act is an affirmative defense that is waived if not pleaded, not a challenge to subject matter jurisdiction. A plaintiff must prove exposure as a threshold matter and must produce evidence that the defendant's asbestos was a substantial factor in causing the disease.

Indiana

• Knox v. AC & S, Inc. (1988). CERCLA § 9658's discovery rule applies only where a state claim accompanies an underlying CERCLA action for a release into the environment, so it does not preempt Indiana's products liability statute of repose, which bars asbestos claims based on products delivered more than the repose period before suit.

Kansas

• Little v. the Budd Company, Inc. (2020). The Safety Appliance Act preempts state regulation only of the safety devices listed in the Act, so state tort claims about unlisted equipment such as asbestos pipe insulation are not preempted. A preemption theory not raised in the district court is waived on appeal.
• Little v. Budd Company (2019). Rule 37(c)(2) expenses are not owed when the party that denied a request for admission had a reasonable ground or good reason to do so. Locomotive Inspection Act preemption could not be decided as a matter of law where the jury could reasonably find the exposure came from equipment not connected to the locomotive.
• Little v. Budd Co. (2018). The Safety Appliance Act preempts only state claims about devices listed in the statute, and pipe insulation is not listed. Whether the Locomotive Inspection Act preempts the claims turns on a disputed fact: whether the insulated pipes were locomotive appurtenances.
• Little v. Budd Company (2018). Certification of an interlocutory appeal under 28 U.S.C. § 1292(b) requires a substantial ground for difference of opinion on a controlling question of law. The defendant did not show one on whether the Safety Appliance Act preempts state claims about devices the statute does not specifically list.
• Little v. the Budd Company (2018). Neither the Locomotive Inspection Act nor the Safety Appliance Act, alone or together, preempts the entire field of train equipment regulation. On the pleadings, claims over pipe insulation in non-motorized passenger railcars were not shown to be directed at locomotive equipment or at a statutory safety appliance.

Louisiana

• Barrosse v. Huntington Ingalls, Incorporated (2023). In the LHWCA twilight zone, neither express nor conflict preemption bars a Louisiana maritime worker's state-law tort claim where the worker seeks no LHWCA compensation and his injury was not covered by the applicable pre-1975 Louisiana workers' compensation statute. The holding is limited to that narrow category of claims.
• Cadiere v. Huntington Ingalls, Inc. (2023). Leave to amend should be freely given absent a substantial reason such as undue delay, bad faith, prejudice or futility. Judicial estoppel did not bar the amendment because the plaintiff took no inconsistent position and had not persuaded the court to accept an earlier one.
• Ragusa v. Louisiana Guaranty Insurance Association (2023). The LHWCA applies as it existed when the disease manifested, and its exclusivity provision preempts a covered worker's state negligence and intentional tort claims against his employer. Awareness of asbestos risk does not show that mesothelioma was substantially certain to result.
• Robichaux v. Huntington Ingalls Inc. (2023). Under Barrosse, the LHWCA does not preempt state tort claims by maritime workers injured in the twilight zone in Louisiana who neither sought nor obtained LHWCA compensation and whose injuries were not covered by the relevant version of the state workers' compensation act.
• Cortez v. Lamorak Ins. Co. (2022). The LHWCA preempts state-law tort claims, including take-home exposure claims, by a covered maritime worker against his employer and the employer's insurer, and the date the disease manifested determines which version of the LHWCA applies. Plaintiff also failed to produce evidence of an intentional tort under Louisiana's substantial-certainty standard.
• Morales v. Anco Insulations Inc. (2022). A Rule 54(b) partial final judgment is appropriate when the risk of piecemeal appeals is outweighed by prejudice from delay, such as repeatedly relitigating a recurring preemption issue, and the court may include co-defendants who did not move.
• Morales v. Anco Insulations Inc. (2022). The Longshore and Harbor Workers' Compensation Act preempts state-law tort claims against a covered employer, its executive officers and its insurers for an employee's occupational asbestos disease, because allowing them would undermine the Act's compensation-for-immunity exchange.
• Ports America Gulfport, Inc. v. Johnson (2022). The Anti-Injunction Act bars a federal court from enjoining state proceedings on an LHWCA section 905(a) preemption claim, because that provision is not an expressly authorized exception. Younger abstention likely bars enjoining enforcement of a state judgment, and litigation costs are not irreparable harm.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the Fifth Circuit's manifestation rule, the LHWCA version in effect when the disease manifested applies. A shipyard employer is therefore immune from state-law tort claims for covered workers' occupational exposure, including take-home exposure from a coworker brother employed there at the same time.
• Sentilles v. Huntington Ingalls Inc. (2022). Under the manifestation rule, the post-1972 LHWCA applies to a mesothelioma diagnosed in 2020. A shipyard worker's state-law tort claims against his employer, including take-home exposure from a coworker brother employed at the same time, are preempted by the LHWCA's exclusivity provision.
• Barrosse v. Huntington Ingalls Incorporated (2021). A court may enter a Rule 54(b) partial final judgment when there is no just reason for delay; here the risk of piecemeal appeals was outweighed by prejudice to Avondale from relitigating the same preemption issue in many pending cases.
• Barrosse v. Huntington Ingalls Incorporated (2021). The post-1972 LHWCA applies to a long-latency asbestos disease based on the date the disease manifested. For covered shipyard workers in the 'twilight zone', the LHWCA's exclusivity provision preempts state-law negligence claims against the employer, and retroactive application does not violate due process.
• Bouck v. Kansas City Southern Railway Co. (2021). The Locomotive Inspection Act's preemption of state-law claims against locomotive parts manufacturers (Kurns) does not preclude a railroad worker's FELA negligence claim against his employer for asbestos exposure from locomotives and locomotive parts.
• Broussard v. Huntington Ingalls, Inc. (2021). The government contractor defense to a failure-to-warn claim requires evidence that the federal government was involved in the decision to give or not give a warning and that the contractor complied with the government's warning provisions. Avondale offered no such evidence.
• Genusa v. Asbestos Corp. Ltd. (2014). A third-party claim against unions that depends on interpreting collective bargaining agreements is completely preempted by LMRA Section 301 and supports removal. Claims that are not within original or supplemental jurisdiction must be severed and remanded, and a court may decline supplemental jurisdiction over state-law tort claims.
• Genusa v. Asbestos Corporation Limited (2014). Third-party claims that depend on interpreting collective bargaining agreements are completely preempted by LMRA Section 301 and support removal. The plaintiff's state-law asbestos claims, which did not invoke admiralty or LHWCA jurisdiction, must be severed and remanded, or supplemental jurisdiction declined.
• Bourque v. Anco Insulations, Inc. (3rd Circuit, 2009). When a longshoreman's alleged asbestos exposure occurred only aboard a vessel over navigable waters, the LHWCA is the exclusive remedy and state remedies are precluded, because the case falls outside the concurrent state-federal 'twilight zone'.
• Hernandez v. Todd Shipyards Corporation (2004). The LHWCA, raised as a defense to state law claims, does not completely preempt them or create federal question jurisdiction, because it lacks a civil enforcement provision creating a federal cause of action and a specific jurisdictional grant to federal courts.

Maryland

• Crowe v. CSX Transportation, Inc. (2019). A railroad employee engaged in maritime employment is covered by the LHWCA as amended in 1972, and because a latent occupational disease injury occurs at manifestation, applying the Amendments to a post-1972 diagnosis is not retroactive; the LHWCA remedy is exclusive and bars a FELA claim.

Massachusetts

• Associated Industries of Massachusetts v. Snow (1990). A state occupational health regulation is not preempted by the OSH Act or OSHA standards if its effect is to protect the public, even when it does so by regulating workers and work places; it is preempted if its effect is solely to protect workers.

Minnesota

• Independent School Dist. No. 197 v. WR Grace (1990). Under Minnesota law a school district's asbestos-fireproofing removal claims were not barred as a matter of law by the statute of repose or limitations, because fraud tolling and class-action tolling raised fact issues. Such claims are not barred by the economic loss doctrine, and the state revival statute is constitutional. Federal asbestos regulation does not preempt the state-law claims.

Montana

• Wells v. BNSF Ry. Co. (2024). Federal law (ICCTA) did not expressly or impliedly preempt Montana strict liability claims for an abnormally dangerous activity based on asbestos-contaminated vermiculite in a railyard, and the common carrier exception did not cover the railroad's handling of asbestos outside its duties as a carrier. A party cannot raise grounds in a post-verdict Rule 50(b) motion that it did not raise before the verdict.
• Wells v. BNSF Railway Company (2023). Under Montana's comparative-fault statute, a defendant may not assign fault to an unsettled nonparty such as W.R. Grace, and must prove a settled party's negligence with expert testimony where the issues are beyond lay knowledge. The HMTA and FRSA do not preempt state-law claims over transporting asbestos-bearing vermiculite ore.
• Orr v. State (2004). State health and industrial hygiene statutes imposed a duty on the State to protect workers by warning them of known workplace dangers, and a special relationship took the case outside the public duty doctrine. Neither federal mine-safety law nor pre-1973 sovereign immunity barred the claims, because the claims accrued only when the injuries became manifest, after immunity was abolished.

New Jersey

• Estate OF Brust v. Acf Industries, LLC (2015). The Locomotive Inspection Act preempts state-law design and failure-to-warn claims about locomotive equipment even when the user is an urban rapid transit operator not subject to federal railroad regulation. A plaintiff must show asbestos exposure to the defendant's product that was frequent, regular and in close proximity to establish substantial-factor causation.

New York

• Olson v. Brenntag N. Am., Inc. (2020). A jury could rationally find that J&J's talcum powders exposed the plaintiff to asbestos, that this exposure caused her mesothelioma, and that J&J's conduct warranted punitive damages. The compensatory award was excessive, and a 12:1 punitive-to-compensatory ratio was unconstitutionally excessive, so the court capped it at 7:1.
• Cohen v. American Biltrite Inc. (2018). The scope of FDA regulation of talc is a question of law, not fact evidence, and the "generally recognized as safe" classification applies only to food additives and new drugs, so references to it (and the similar "generally regarded as safe") lack probative value for cosmetic talc.
• Feinberg v. Colgate-Palmolive Co. (2012). The 1997 FDCA cosmetics preemption clause does not apply retroactively to product use that ended decades earlier. Without a binding FDA regulation on cosmetic talc labeling, there was no express or implied preemption of the state failure-to-warn claim, and primary jurisdiction did not require dismissal.
• Caradonna v. AW Chesterton Co., Inc. (2007). The Locomotive Boiler Inspection Act preempts conflicting state-law claims but does not preempt another federal statute, so a railroad worker's FELA negligence claim against the railroad, including a duty to warn of workplace hazards, is not preempted.
• Falise v. American Tobacco Co. (2000). A RICO plaintiff relying on mail or wire fraud must show reliance, which is less demanding for a broad scheme aimed at the public, and must show proximate cause under the Holmes factors. The Trust could not show its own reliance for the settlement and litigation theories, but could show the claimants' reliance for the direct payment theory.
• Kaufman v. City of New York (1989). A city asbestos abatement law that applies only when owners choose to alter or demolish buildings is a rational exercise of police power and does not violate substantive or procedural due process or effect a taking, even though the City earlier approved asbestos fireproofing.