Plaintiffs Attorneys in Preemption Dispute Finds Favor with Feds

Plaintiffs Attorneys in Preemption Dispute Finds Favor with Feds



A case before the U.S. Supreme Court that is getting the interest of a number of groups will determine if plaintiffs attorneys have a new industry to take on in asbestos lawsuits.

The issue revolves around the federal Locomotive Inspection Act, which preempts state law claims against business outfits involved with the design, as well as manufacture, of locomotives and their parts.

Lawyers for Gloria Gail Kurns claim it should not, and that the U.S. Supreme Court should allow the filing of a lawsuit against Viad Corp and Railroad Friction Products Corp.

Among the groups supporting and lobbying for the plaintiffs are the U.S. government and the American Association for Justice or AAJ, a national group of plaintiffs attorneys.

The amicus brief of the AAJ, which was filed on Aug. 19, states, “The intent of Congress is the touchstone of preemption, and there is strong presumption against preemption in the absence of clear indicia of that intent.”

The AAJ brief also stated, “Because the right to a legal remedy for wrongful injury is a fundamental right under the Constitution, courts may not preempt such a cause of action and leave injured persons without remedy unless Congress specifically intended that result. The mere silence of Congress in a statute not directed at railroads rather than manufacturers fall for short”

Other groups also filed their own briefs in support of Kurns include the National Association of Retired and Veteran Railway Employees, the Academy of Rail Labor Attorneys, Public Law Scholars and Public Justice.