Little v. Budd Company (D. Kan., Oct. 18, 2018)

Our plain-English summary of Little v. Budd Company (U.S. District Court, District of Kansas, October 18, 2018).

Nancy Little sued The Budd Company, individually and as personal representative of the estate of her father, Robert L. Rabe. She alleged that he was exposed to asbestos-containing pipe insulation that Budd placed in passenger railcars it manufactured. She said the exposure caused his malignant mesothelioma and his death on December 28, 2012. Her state-law claims were negligence, design defect and warning defect. Budd argued that the federal Safety Appliance Act preempts those claims. The court had twice rejected that argument, once on a motion for judgment on the pleadings and once on summary judgment. Budd then asked the court to amend those orders and certify them for an immediate appeal. This opinion decided only that request. The court denied it. Budd did not show a substantial ground for difference of opinion on the preemption question. The court said the Supreme Court cases Budd relied on did not clearly extend preemption to devices the Act does not list. Budd also cited no opinions that directly contradicted the court's rulings.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of Kansas
• Decided: October 18, 2018
• Docket: Case No. 16-4170-DDC-KGG
• Stage: Other
• State: Kansas

Outcome. The court denied The Budd Company's motion to amend and certify its two earlier orders on Federal Safety Appliance Act preemption for interlocutory appeal, so plaintiff Nancy Little prevailed on the motion.

What the court held. 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.

Issues decided: FELA Railroad Claims, Federal Preemption, Trial Procedure and Discovery.

The people and their exposure

• Robert L. Rabe: mesothelioma; died

The defendants

• The Budd Company (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Little v. the Budd Company (January 12, 2018). The court denied The Budd Company's Rule 12(c) motion for judgment on the pleadings, so plaintiff Nancy Little's state law claims and her alternative negligence per se claim proceed.
• Little v. the Budd Company (February 13, 2018). The district court overruled The Budd Company's objection and affirmed the magistrate judge's order denying its motion to add a ninth expert witness and reopen discovery, so plaintiff Nancy Little prevailed on this motion.
• Little v. Budd Co. (September 10, 2018). The court denied Budd's motion for summary judgment on federal preemption of the state-law claims, granted it on the alternative negligence per se claim, and granted plaintiff's motion in part and denied it in part. It also struck a paragraph of Budd's president's declaration.
• Little v. Budd Company (November 20, 2018). The court denied Budd Company's motion to exclude Dr. Brody, granted in part and denied in part its motion to exclude Dr. Castleman (barring testimony about what Budd knew), and denied the motion on Dr. Frank as moot.
• Little v. Budd Company (March 19, 2019). The district court denied both the plaintiff's motion for attorney's fees and expenses under Rule 37(c)(2) and The Budd Company's renewed motion for judgment as a matter of law, leaving the jury verdict for the plaintiff in place.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

NANCY LITTLE, individually and as personal representative of the estate of ROBERT L. RABE,

Plaintiff,

v.

THE BUDD COMPANY, Defendant.

Case No. 16-4170-DDC-KGG.

October 18, 2018.

United States District Court, D. Kansas.

Nancy Little, individually and as personal representative of the estate of Robert L. Rabe, Plaintiff, represented by E. Todd Hottman, Hottman Law Firm, John D. Roven, Roven-Kaplan, LLP, pro hac vice & Kevin M. Camp, Camp Trial Firm, pro hac vice.

The Budd Company, Defendant, represented by James E. Wynne, Butzel Long, PC, pro hac vice, Joseph E. Richotte, Butzel Long, PC, pro hac vice & Vincent Edward Gunter, Rasmussen Dickey Moore, LLC.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

This matter comes before the court on defendant's Motion to Amend and to Certify Orders for Interlocutory Appeal. Doc. 103. Plaintiff opposes defendant's motion. Doc. 112. For reasons explained below, the court denies defendant's motion. I. Factual and Procedural Background

Plaintiff Nancy Little brings this action individually and as the personal representative of the estate of her father, Robert L. Rabe, against defendant The Budd Company. Plaintiff alleges that her father was exposed to asbestos-containing pipe insulation that defendant placed in passenger railcars it manufactured. She contends that this exposure caused her father to develop asbestos-related malignant mesothelioma, causing his death on December 28, 2012.

Plaintiff asserts state law claims against defendant for negligence, strict product liability/design defect, and strict product liability/warning defect. Doc. 68 at 10-13 (Pretrial Order ¶ 4.a.).[1] Defendant asserts several defenses against plaintiff's claims. Id. at 13-19 (Pretrial Order ¶ 4.b.). One of those defenses asserts that the Federal Safety Appliance Act ("SAA"), 49 U.S.C. §§ 20301 et seq., preempts plaintiff's state law claims. Id. at 14 (Pretrial Order ¶ 14.b.3.).

Earlier, defendant moved the court to dismiss plaintiff's claims based on SAA preemption. The court twice has denied defendant's motions. Defendant asks the court to amend and certify its two Orders holding that SAA preemption does not bar plaintiff's claims for an interlocutory appeal under 28 U.S.C. § 1291. Those two Orders are: (1) the court's Memorandum and Order denying defendant's Motion for Judgment on the Pleadings (Doc. 61), and (2) the court's Memorandum and Order granting in part and denying in part defendant's Motion for Summary Judgment (Doc. 96).

II. Legal Standard

Generally, courts of appeals only have jurisdiction to hear appeals from a district court's final decision. 28 U.S.C § 1291. But, 28 U.S.C. § 1292 establishes certain exceptions to this rule, permitting courts of appeals to hear certain interlocutory appeals. One exception for interlocutory appeal is a decision certified by a district judge. A district judge may certify an interlocutory order for immediate appeal when the judge is of the opinion that (1) the district court's order involves a controlling question of law; (2) a substantial ground for difference of opinion exists with respect to the question of law; and (3) an immediate appeal from the order may advance the ultimate termination of the litigation materially. Id. § 1292(b). The court has discretion to certify an interlocutory order for appeal under § 1292(b). Id. Such certification is "limited to

extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate and final decision[s] of controlling questions encountered early in the action." Utah ex rel. Utah State Dep't of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (citation and internal quotation marks omitted). District courts also have discretion to determine whether to stay proceedings pending disposition of an interlocutory appeal. 28 U.S.C. § 1292(b). III. Analysis

Defendant asserts that this case meets all three requirements for a § 1292(b) appeal and so, the court should certify the two Orders for interlocutory appeal. That is, defendant argues that: (1) the court's Orders refusing to dismiss plaintiff's state law claims based on SAA preemption involve a controlling question of law; (2) a substantial ground for difference of opinion exists about this question of law; and (3) an immediate appeal from the Orders may advance the ultimate termination of the litigation materially. Plaintiff does not dispute that the first and third requirements are satisfied here. Doc. 112 at 4. But plaintiff asserts that defendant has failed to demonstrate substantial ground for difference of opinion about the question of law. The court agrees.

For the court to find a substantial ground for difference of opinion, the court must conclude that the question of law "`is difficult, novel, and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions.'" Farmer v. Kan. State Univ., No. 16-CV-2256-JAR-GEB, 2017 WL 3674964, at [*3] (D. Kan. Aug. 24, 2017) (quoting Am. Fid. Assurance Co. v. Bank of N.Y. Mellon, No. CIV-11-1284-D, 2014 WL 8187951, at [*4] (W.D. Okla. Dec. 12, 2014)). That an issue presents a question of first impression is not, by itself, sufficient. Id. (citation omitted). Nor will contradictory case law — by itself — qualify a case for certification. Id.

Here, defendant argues, the court's refusal to dismiss plaintiff's state law claims based on SAA preemption conflicts with the Supreme Court's decisions in Southern Railway v. Railroad Commission of Indiana, 236 U.S. 439, 446 (1915), and Gilvary v. Cuyahoga Valley Railway Co., 292 U.S. 57, 60 (1934). Defendant argues — as it previously has argued — these Supreme Court cases hold that the SAA preempts the entire field of safety appliances for railcars. The court rejected that argument, explaining that defendant reads these cases too broadly. See Doc. 61 at 15; see also Doc. 96 at 17. Specifically, the court reasoned: "Neither of these cases explicitly holds that SAA preemption extends to all safety appliances whether the statute specifically lists them or not, as defendant asserts." Doc. 96 at 17. And the court cited language from other Supreme Court cases suggesting that SAA preemption is limited just to the particular safety appliances explicitly listed in the act. Id. (first citing Napier v. Atl. Coast Line R.R. Co., 272 U.S. 605, 611 (1926); then citing Atl. Coast Line R.R. Co. v. Georgia, 234 U.S. 280, 293 (1914)). Also, as the court noted, defendant has cited no Supreme Court decisions applying SAA preemption to a state law claim based on a device that the SAA does not list specifically in the statute but otherwise falls within the broader definition of "safety appliance." Id. at 21. Without such authority, the court declined to expand SAA preemption as broadly as defendant requested. Id.

Also, the court's reasoning relied on two district court cases — one from our court and the other from the Middle District of Pennsylvania — that had refused to extend SAA preemption to plaintiff's state law claims when the claims involved devices that the SAA does not include in its specific list of safety appliances. Id. at 22-23 (first citing Garay v. Mo. Pac. R.R. Co., 38 F. Supp. 2d 892, 898 (D. Kan. 1999); then citing Milesco v. Norfolk S. Corp., 807 F. Supp. 2d 214, 223 (M.D. Pa. 2011)). In sum, defendant still hasn't cited any judicial opinions that directly contradict the court's rulings refusing to dismiss plaintiff's state law claims based on SAA preemption. The court remains convinced that its analysis is correct, and defendant has presented no persuasive argument to the contrary. To say it directly: defendant has failed to demonstrate a substantial ground for difference of opinion exists about this question of law.

For this reason, and because of the "Tenth Circuit's demonstrated reluctance to accept cases for interlocutory appeal except in the rarest of circumstances," Etienne v. Wolverine Tube, Inc., 15 F. Supp. 2d 1060, 1062 (D. Kan. 1998), the court denies defendant's Motion to Amend and to Certify Orders for Interlocutory Appeal. See also Utah ex rel. Utah State Dep't of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (explaining that certification of an interlocutory order is "limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate and final decision[s] of controlling questions encountered early in the action" (citation and internal quotation marks omitted) (emphasis added)).

IV. Conclusion

For reasons explained, the court denies defendant's Motion to Amend and to Certify Orders for Interlocutory Appeal. IT IS THEREFORE ORDERED BY THE COURT THAT defendant's Motion to Amend and to Certify Orders for Interlocutory Appeal (Doc. 103) is denied.

IT IS SO ORDERED.

[1] Plaintiff also asserted an alternative claim under state law for negligence per se based on defendant's alleged violation of two federal statutes: (1) the Locomotive Inspection Act, and (2) the Federal Safety Appliance Act. Doc. 68 at 10-13 (Pretrial Order ¶ 4.a.). The court granted summary judgment against this alternative claim. Doc. 96 at 24-27.

Sources

• The opinion on Google Scholar
• Kansas asbestos laws
• Kansas asbestos exposure sites