LOWMAN v. CSX TRANSPORTATION, INC. et al

Filing 23

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; DEFENDANT'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT IS DENIED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/2/2014. 1/2/2014 ENTERED AND COPIES MAILED, E-MAILED.(kk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: ASBESTOS PRODUCTS
LIABILITY LITIGATION (No. VI)

Consolidated Under
MDL DOCKET NO. 875

LOWMAN

Transferred from the Southern
District of Georgia

FILEP

v.

JAN - ~ 4011!-

VARIOUS DEFENDANTS

MICHAELE.KUNZ,ClerkE. D. Pa No. 10-78962

By

Oep. Clerk

0 R D E R

-

AND NOW, this 2nd day of January, 2014, after review of

the Objections of Defendant CSX Transportation (ECF No. 22) to
the Report and Recommendation by Magistrate Judge Angell

(ECF No.

21) denying Defendant's Motion for Partial Summary Judgment (ECF
No. 10), it is hereby ORDERED as follows:
(1)

The Report and Recommendation is APPROVED and
ADOPTED;

(2)

Defendant's objections to the Report and
Recommendation are OVERRULED;

(3)

Defendant's Motion for Partial Summary Judgment is
DENIED; 1

This case was transferred in August of 2010 from the
United States District Court for the Southern District of Georgia
to the United States District Court for the Eastern District of
Pennsylvania as part of MDL-875.
Plaintiff, Horace Lowman, alleges that he was exposed
to asbestos while working for CSX Transportation ("CSX") as a
sheetmetal worker from 1963 to 1969 at Defendant's Waycross,
Georgia facility. The alleged exposure occurred while Plaintiff
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was removing and repairing pipe insulation on coaches and
locomotives.
Plaintiff brought claims against CSX pursuant to the
Federal Employer's Liability Act ("FELA") and the Locomotive
Inspection Act ("LIA"), asserting that he developed asbestosrelated lung cancer through his employment with CSX. Defendant
CSX moved for partial summary judgment as to Plaintiff's claims
under the LIA, arguing that (1) the exposures occurred while the
train was not "in use" as contemplated by the LIA; and (2) the
exposures did not stem from a "defective condition" on the train
as contemplated by the LIA.
By order dated November 18, 2010, this Court referred
the matter to the Honorable Magistrate Judge M. Faith Angell to
supervise discovery and prepare the case for trial. On February
22, 2013, Judge Angell issued a report and recommendation
regarding Defendant's partial motion for summary judgment
("R&R"). Judge Angell recommended that CSX's motion be denied
because it had not established it was entitled to judgment as a
matter of law. Specifically, Judge Angell noted that CSX "had not
established that the locomotives were not 'in use' where
Plaintiff had testified that he performed repairs on trains which
were on the road, and not in an engine house or maintenance
facility."
On March 7, 2013, CSX filed objections to Judge
Angell's R&R (the "Objections"). Specifically, CSX avers that
Judge Angell (1) failed to consider Congressional intent that a
railroad should have an opportunity to remedy defective
conditions before incurring LIA "strict liability"; (2) failed to
consider the activity in which Plaintiff was engaged in when he
was injured when she conducted the "in use" analysis; and (3)
failed to consider whether the asbestos-containing products were
"defects" under the LIA, especially in light of the Supreme
Court's recent decision in Kurns v. R.R. Friction Prods. Corp.,
132 S. Ct. 1261, 1265-66 (2012).

I.

Legal Standard
A.

Review of Report and Recommendation Upon Objections

The Court undertakes a de novo review of the portions
of the Report and Recommendation to which a party has objected.
See 28 U.S.C. § 636(b) (1) (2006 & Supp. V 2011); Cont' 1 Cas. Co.
v. Dominick D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The
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Court "may accept, reject or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28
u.s.c. § 636(b) (1).
B.

Summary Judgment Standard

Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion
for summary judgment will not be defeated by 'the mere existence'
of some disputed facts, but will be denied when there is a
genuine issue of material fact." Am. Eagle Outfitters v. Lyle &
Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is
"material" if proof of its existence or non-existence might
affect the outcome of the litigation, and a dispute is "genuine"
if "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477 U.S. at 248.
In undertaking this analysis, the court views the facts
in the light most favorable to the non-moving party. "After
making all reasonable inferences in the nonmoving party's favor,
there is a genuine issue of material fact if a reasonable jury
could find for the nonmoving party." Pignataro v. Port Auth. of
N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance
Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While
the moving party bears the initial burden of showing the absence
of a genuine issue of material fact, meeting this obligation
shifts the burden to the non-moving party who must "set forth
specific facts showing that there is a genuine issue for trial."
Anderson, 477 U.S. at 250.
C.

Liability under the Locomotive Inspection Act

"The [LIA]
. is to be liberally construed in the
light of its prime purpose, the protection of employees and
others by requiring the use of safe equipment." Lilly v. Grand
Trunk Western R. Co., 317 U.S. 481, 486 (1943). The presence of
"dangerous objects or foreign matter" on a locomotive falls
within the scope of the LIA and "[c]onditions other than
mechanical imperfections can plainly render equipment unsafe to
operate without unnecessary peril to life or limb." Id. at 48788 .
Liability under the LIA only exists if the locomotive
was "in use" at the time of the accident. Kurns v. A.W.
3

Chesterton, Inc., 620 F.2d 392, 397 n.3 (3d Cir. 2010) (citing
Crockett v. Long Island R.R., 65 F.3d 274, 277 (2d Cir. 1995)).
The phrase "in use" is not defined in the LIA; rather, courts
have uniformly held that the determination of whether a
locomotive is "in use" is decided by looking at the totality of
the circumstances. See McGrath v. Consolidated R. Corp., 136 F.3d
838, 842 (1st Cir. 1998); Steer v. Burlington Northern, Inc., 720
F.2d 975, 977 n.4 (8th Cir. 1983); Angell v. Chesapeake & Ohio
Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980)). Courts often
consider where the train was located at the time of the accident,
the activity of the injured party, and the extent of the planned
inactivity of the train. See Adams v. Consol. Rail Corp., No. 931160, 1994 WL 383633, at *2-4 (E.D. Pa July 22, 1994). Notably, a
locomotive may be "in use" even if it is stationary at the time
of the accident. Raudenbush v. Baltimore & O.R. Co., 160 F.2d
363, 367 (3d Cir. 1947).

II.

Defendant CSX's Motion for Partial Summary Judgment
A.

Defendant's Arguments

Defendant asserts that Plaintiff must demonstrate the
following to impose "strict liability" on CSX under the LIA:
(1) that he was injured while working on a
locomotive that was "in use" at the time of the
injury; and
(2) that some specific defect in the locomotive
caused the injury.
As to the first prong, Defendant asserts that an injury
occurring while a locomotive is being serviced or repaired is not
"in use" as contemplated under the LIA. Defendant also alleges
that it was the intent of Congress to not impose liability under
the LIA "when the railroad is in the process of repairing the
defect at issue."
As to the second prong, Defendant cites to a Missouri
Supreme Court case which held that a plaintiff "must introduce
substantial evidence of a defect" to recover under the LIA.
Zachrtiz v. St. Louis-San Francisco Ry. Co., 81 S.W.2d 608, 611
(Mo. 1935). Defendant alleges that the mere use of an asbestoscontaining product is not a "defect" under the LIA. CSX asserts
that the Supreme Court's decision in Kurns affirmed that the
presence of asbestos on a locomotive does not constitute a health
4

problem for employees and cannot be the basis of an LIA
violation. 132 S. Ct. at 1265-66.
B.

Plaintiff's Arguments

Plaintiff asserts that the locomotive was "in use" at
the time of the injury. Plaintiff points to the following
exchange in support of his argument:
Q:

During your entire career out at the
Railroad, have you ever had an opportunity to
work out on the road doing any locomotive
repair?

A:

Yes, sir.

Q:

Could you tell me when that was?

A:

When I was at the engine house.

Q:

What types of things would you have to do out
on the road?

A:

Repair broken pipe, gaskets leaking and such
as that.

Q:

Would these locomotives be running while you
were working on them?

A:

[Not] when I'm working on them, no, sir.

Plaintiff asserts that the defect in the locomotive
"was the use of asbestos-containing products when the Defendant
knew of the hazards to its workers."

III. Analysis
Magistrate Judge Angell found that a "locomotive may be
in use even though it is motionless when the accident occurred."
This Court agrees with the finding of Judge Angell. Here,
Plaintiff clearly testified that he made repairs "on the road"
which included the repair of broken pipes and leaking gaskets.
CSX has failed to show as matter of law that these locomotives
are not considered "in use" at the time of the accident. See
Raudenbush, 160 F.2d at 367. Defendant objects that Judge Angell
did not consider Congressional intent or the activity of the
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AND IT IS SO ORDERED.

~ "--- (', i) ,t_,,...

J EDUARDO C.

r

ROBREilb, J.

Plaintiff when making this determination. However, it is a
totality of the circumstances test that is required when making
this determination and no single factor is dispositive. Here,
this Court agrees with Judge Angell that CSX has not established
that the locomotive was not "in use" at the time of the injury
when it was on the road when Plaintiff was making repairs and was
exposed to the alleged asbestos-containing products.
Additionally, the Court is not persuaded that Congress intended
to exclude all injuries incurred from the repair of defective
conditions from liability under the LIA. Importantly, the Act is
to be liberally construed in favor of the injured railroad
worker. See Lilly, 317 U.S. at 486. Such a determination would
run contrary to the primary purpose of the LIA. Id.
Similarly, the Court is not persuaded that Kurns has
any influence on the facts of this case. Defendant objects that
Magistrate Judge Angell did not consider its argument that the
asbestos-containing products are not "defects" under the LIA. It
is clear that injuries from dangerous objects or foreign matter
may incur liability under the LIA. See Lilly, 317 U.S. at 486.
Although asbestos-containing products may not be considered
inherently dangerous, an asbestos-containing locomotive component
- just as any other locomotive component - may become dangerous
and defective when it is disturbed or broken.
Here, CSX has not established that it is entitled to
judgment as a matter of law. Anderson, 477 U.S. at 248-50. For
all of these reasons, Defendant's objections to the Report and
Recommendation of Magistrate Judge Angell are overruled.
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