SCHEIDING v. [And four other cases.] *

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Court of Appeal, First District, Division 2, California.

Robert SCHEIDING et al., Plaintiffs and Appellants, v. GENERAL MOTORS CORPORATION, Defendant and Respondent. [And four other cases.] *

Nos. A076324, A076333, A076341, A076352, A076730.

Decided: August 03, 1998

James L. Oberman, Hercules, Brayton, Harley Curtis, Novato, for Plaintiffs and Appellants. Grace, Genson, Cosgrove & Schirm, Philip R. Cosgrove, Thomas H. Hutchinson, Los Angeles, Kimberly A. Smith, Marina Del Rey, for Defendant and Respondent.

INTRODUCTION

In five related appeals, former railroad workers, their spouses and survivors seek to overturn judgments dismissing their various tort actions against locomotive manufacturer General Motors Corp. (hereinafter GMC) for asbestos-related injuries.   These dismissals followed the superior court's grant of judgment on the pleadings in four of the actions and grant of summary judgment in favor of GMC on the fifth, all on the grounds of federal preemption of the state court causes of action by the Locomotive Boiler Inspection Act (hereinafter referred to as the BIA, formerly 45 U.S.C. §§ 22-34, now recodified in the Transportation Code, 49 U.S.C. § 20701 et seq.).

 The question here is whether the federal BIA preempts state tort actions against the designer and manufacturer of locomotives for injuries suffered by railroad employees resulting from exposure to asbestos containing materials in those locomotives.   More than 70 years ago, the United States Supreme Court in Napier v. Atlantic Coast Line. (1926) 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432, addressed the question of the preemptive scope of the BIA. Nevertheless, the question is closer than may at first appear.   Our analysis is assisted by the presence of two thoughtful and well reasoned recent cases:   Law v. General Motors Corp. (9th Cir.1997) 114 F.3d 908 and Viad Corp. v. Superior Court (1997) 55 Cal.App.4th 330, 64 Cal.Rptr.2d 136.   Both cases address the scope of BIA preemption of state law claims including, among others, strict product liability, negligence, and breach of warranty.   The two cases reach diametrically opposing conclusions.

 We are convinced that Napier v. Atlantic Coast Line., supra, 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432, which specifically addressed the scope and effect of the BIA, continues to control.   Consequently, we conclude that the BIA occupies the field of locomotive equipment design, manufacture and materials, preempting all state law claims within that field.   We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

GMC, through its Electro-Motive Division, is a manufacturer of diesel electric locomotives.   These are powered in part by diesel engines which burn diesel fuel.   These engines contain some asbestos materials.1

Harry Goodyear, Victor Hellquist, Robert Scheiding, Gaylord Blackburn and Billy Umphriss worked in or around locomotives at some time between the 1940's and the 1980's.   Plaintiffs in each of these five actions alleged below that GMC's locomotives and related equipment were defective because they released asbestos fibers into the atmosphere where these railroad employees worked and onto their clothing.   Goodyear and Hellquist are wrongful death and survival lawsuits brought by the spouses of workers who died as a result of asbestos illnesses.   Scheiding, Blackburn and Umphriss were filed by the injured employees themselves.2  The complaints in each case allege against GMC causes of action for negligence, strict liability, and false representation, as well as wrongful death and survival in Goodyear and Hellquist and negligent infliction of emotional distress and loss of consortium in Scheiding, Blackburn and Umphriss.3

GMC moved for summary judgment in each of the five cases on the grounds that the BIA preempted the strict product liability and other state common law claims.   The San Francisco Superior Court treated four of these motions as motions for judgment on the pleadings, granting them without leave to amend.   In Umphriss the court granted summary judgment in favor of GMC on preemption grounds.

On August 30, 1996, judgment was entered in favor of GMC in Goodyear, Hellquist, Scheiding, and Blackburn.   On November 4, 1996 judgment was entered in favor of GMC in the Umphriss action.   Timely appeals followed.

DISCUSSION

A. Preemption.

 The Supremacy Clause (U.S. Const., art.   VI, § 2) allows Congress to supplant state regulation with uniform national rules.   The doctrine of federal preemption, derived from the Supremacy Clause, is designed to prevent states from impinging on federal law and policy.  (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407;  Law v. General Motors Corp., supra, 114 F.3d 908, 909 [hereafter Law ];  Viad v. Superior Court, supra, 55 Cal.App.4th 330, 333, 64 Cal.Rptr.2d 136 [hereafter Viad ].)

 Because of the importance of federalism in our constitutional structure, all preemption cases begin with the strong presumption that federal statutes do not supersede the historic police powers of the state in areas like health and safety.   As recognized repeatedly by our United States Supreme Court:  “we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’  [Citations.]”  (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700, quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447.)   Accordingly, “[p]remption fundamentally is a question of congressional intent.”  (English v. General Electric Co. (1990) 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65;  accord Viad, supra, at p. 333, 64 Cal.Rptr.2d 136.)   Further, this presumption applies not only to the question whether Congress intended any preemption at all, but also to the scope of its intended invalidation of state law.  (Medtronic, Inc. v. Lohr, supra, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700, citing Cipollone, supra, at pp. 518, 523, 112 S.Ct. 2608.)  “It is the burden of the party claiming preemption to prove Congress's intent.  (De Canas v. Bica (1976) 424 U.S. 351, 357, 96 S.Ct. 933, 47 L.Ed.2d 43․)”  (Viad, supra, at p. 333, 64 Cal.Rptr.2d 136.)

 “Congress' intent may be ‘explicitly stated in the statute's language or implicitly contained in its structure and purpose.’  [Citation.]  In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, [citation] or if federal law so thoroughly occupies a legislative field ‘ “as to make reasonable the inference that Congress left no room for the States to supplement it.” ’   [Citations.]”  (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407.)   Stated otherwise, state law is preempted in three circumstances:  (1) where Congress explicitly defines the extent to which its enactments preempt state law (express preemption);  (2) where Congress' intent to preempt state law may be inferred from a pervasive scheme of federal regulation or where the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject (field preemption);  and (3) where federal law actually conflicts with state law and it is not possible for a private party to comply with both requirements (conflict preemption).  (English v. General Electric Co., supra, 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65.)

B. The BIA.

In its present form, section 20701 provides:

“A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances-

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;

(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter;  and

(3) can withstand every test prescribed by the Secretary under this chapter.”  (49 U.S.C.A. § 20701;  added Pub.L. 103-272, § 1(e) July 5, 1994, 108 Stat. 885.)

In 1988 and 1992, the civil penalty provision of the BIA for violations of the Act, rules or regulations made under its provisions or the lawful orders of any inspector was amended to include manufacturers, among others.4

“The BIA was enacted in 1911, as an amendment to the Federal Employers' Liability Act (FELA, 45 U.S.C. § 51 et seq.).  (Urie v. Thompson (1949) 337 U.S. 163, 189 [69 S.Ct. 1018, 1034, 93 L.Ed. 1282, 11 A.L.R.2d 252].)”  (Viad, supra, at p. 334, 64 Cal.Rptr.2d 136.)  “The purpose in enacting the BIA was to protect train service employees and the traveling public from defective locomotive boilers and equipment.  (Urie v. Thompson, supra, 337 U.S. at pp.   190-191 [69 S.Ct. at pp. 1034-1035].)  ‘[I]t has been held consistently that the [BIA] supplements the [FELA] by imposing on interstate railroads “an absolute and continuing duty” to provide safe equipment.  [Citations.]’  (Id. at p. 188 [69 S.Ct. at p. 1034].)   In addition to the civil penalty, a person harmed by violation of the BIA is given recourse to sue under FELA, which applies only to railroad employees injured while engaged in interstate commerce.  (Id. at p. 189 [69 S.Ct. at p. 1034];  see Crane v. Cedar Rapids & I.C.R. Co. (1969) 395 U.S. 164, 166 [89 S.Ct. 1706, 1708, 23 L.Ed.2d 176].)   FELA provides the exclusive remedy for recovery of damages against a railroad by its employees.  (Lilly v. Grand Trunk R. Co. (1943) 317 U.S. 481, 485 [63 S.Ct. 347, 350-351, 87 L.Ed. 411].)   FELA liability is expressly limited to common carriers.  (45 U.S.C. § 51.)”  (Viad, supra, at p. 335, 64 Cal.Rptr.2d 136.)

The power that was originally conferred on the Interstate Commerce Commission was later transferred to the Secretary of the Department of Transportation in 1966.  (Marshall v. Burlington Northern, Inc. (9th Cir.1983) 720 F.2d 1149.)

C. Napier.

In 1926 the Supreme Court in Napier v. Atlantic Coast Line., supra, 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (Napier ) specifically addressed the scope and effect of the BIA, concluding it occupies the field of locomotive equipment, preempting all state law claims within that field.  Napier involved challenges to two state statutes which required all trains operating in the state to have an automatic firedoor and a cab curtain.   The Supreme Court invalidated these regulations, holding that the BIA precluded states from imposing additional requirements for locomotive equipment.   Speaking for the unanimous court, Justice Brandeis observed that Congress had not legislated, nor had the Interstate Commerce Commission, which had been given the power to regulate “ ‘the entire locomotive and tender and all parts and appurtenances thereof’ ” (id. at p. 608, 47 S.Ct. 207), made any order with respect to either device.  (Id. at p. 609, 47 S.Ct. 207.)   Further, the court “assumed, also, that there is no physical conflict between the devices required by the State and those specifically prescribed by Congress or the Interstate Commerce Commission;  and that the interference with commerce resulting from the state legislation would be incidental only.”  (Id. at pp. 610-611, 47 S.Ct. 207, fn. omitted.)   Nevertheless, Napier reasoned that “the power delegated to the Commission by the Boiler Inspection Act as amended is a general one.   It extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.”  (Id. at p. 611, 47 S.Ct. 207, italics added.)  “The federal and the state statutes are directed to the same subject-the equipment of locomotives.   They operate on the same object․  The fact that the Commission has not seen fit to exercise its authority to the full extent conferred, has no bearing upon the construction of the Act delegating the power.”  (Id., at pp. 612-613, 47 S.Ct. 207.)

The broad scope of the authority conferred upon the Commission to regulate the design, construction and material of every part of the locomotive, led the court to the conclusion that the BIA was intended to occupy “the field of regulating locomotive equipment” (id., at pp. 607, 613, 47 S.Ct. 207) and therefore preempted the state laws.

Napier has been followed consistently by the lower federal courts, including recently by the Ninth Circuit in Law v. General Motors Corp., supra, 114 F.3d 908.  (See, e.g., Springston v. Consolidated Rail Corp. (6th Cir.1997) 130 F.3d 241;  Marshall v. Burlington Northern Inc., supra, 720 F.2d 1149.)

D. Law.

In Law v. General Motors Corp., supra, 114 F.3d 908, railroad workers claimed their hearing had been severely damaged by excessive noise generated by locomotive brakes and engines, in addition to the usual bells and whistles.   They sued defendant locomotive manufacturers under various state law tort theories for defective design, failure to insulate their work stations properly and failure to warn of hearing risk.   The Ninth Circuit concluded that the BIA preempts state common law remedies against railroad manufacturers for injuries arising out of alleged design defects in their trains.5  It affirmed the district court's dismissal of the workers' state law claims.  (Id. at pp. 909, 913.)

Law rejected plaintiffs' claims that the BIA only preempted direct state regulation of railroad safety, not common law tort liability;  and that the BIA did not preempt suits against manufacturers for design defects.  (Id. at p. 909.)   Relying upon Napier, Law reasoned that “[i]t has long been settled that Congress intended federal law to occupy the field of locomotive equipment and safety, particularly as it relates to injuries suffered by railroad workers in the course of their employment.”  (Law, supra, at p. 910.)   Such “broad preemptive sweep is necessary to maintain uniformity of railroad operating standards across state lines.”  (Ibid.) Plaintiffs' common law claims come within the preempted field as they threaten to undermine the integrated network of federal law regulating railroads.  (Ibid.)

The Secretary of Transportation has authority to regulate the design of the parts plaintiffs claimed were defective and has promulgated highly detailed regulations establishing maximum levels of locomotive cab noise, sound levels and placement requirements for bells and whistles, as well as design requirements for brakes, engines and body structures.  (Id. at p. 911.)   The possibility that manufacturers could escape liability without deviating from federal standards by requiring workers to wear protective headgear or by posting warnings did not prevent conflict, as such remedies also implicated the BIA. Decisions concerning protective headgear are left to the Federal Railroad Administration in consultation with the Occupational Safety and Health Administration.   The Secretary has authority to require warnings.  (Ibid.)

Law rejected the distinction that the BIA speaks to railroad carriers and not to manufacturers.   The court reasoned that imposition of tort liability on manufacturers would “affect ‘the design, the construction, and the material’ of locomotives ․ by forcing them to conform to design and construction standards imposed by the states.”  (Id. at p. 911.)  “This would transfer the regulatory locus from the Secretary of Transportation to the state courts-a result the BIA was clearly intended to foreclose.”  (Id. at pp. 911-912, fn. omitted.)

Law also rejected the contention that plaintiffs would be without remedy were manufacturers held not liable for design defects.   Under the FELA, 45 U.S.C. § 51, et seq., railroad workers may recover against their employers (railroad operators, not manufacturers) for all occupational injuries.   The unavailability of punitive damages under FELA does not permit states to supplement this “ ‘exclusive remedy.’ ”  (Id., at p. 912, citing Wildman v. Burlington Northern R.R. (9th Cir.1987) 825 F.2d 1392, 1395.)   Further, disallowing suits against manufacturers would not decrease incentives on manufacturers to design and produce safe products, as locomotive manufacturers already have every incentive to comply with federal standards.   (Law, supra, at p. 912.)

E. Viad Corp. v. Superior Court.

The Second District in Viad, supra, 55 Cal.App.4th 330, 64 Cal.Rptr.2d 136, found Napier no longer controlling on the preemption issue, “primarily on the reasoning of two recent Supreme Court decisions filed more than fifty years after the Napier case, Medtronic, Inc. v. Lohr, supra, 518 U.S. [470, 116 S.Ct. 2240], ․ and Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238 [104 S.Ct. 615, 78 L.Ed.2d 443]․”  (Viad, supra, at p. 335, 64 Cal.Rptr.2d 136.) 6

In Viad, plaintiffs (employees and relatives of employees of the Santa Fe and Southern Pacific railroads) filed a personal injury and wrongful death lawsuit against Viad Corp. for damages resulting from their exposure to asbestos insulation contained on locomotives manufactured by Viad Corp.'s predecessor in interest.   Viad Corp. moved for summary judgment on the grounds that the negligence, strict product liability, warranty, personal injury and wrongful death actions were preempted by the BIA. (Id. at p. 332, 64 Cal.Rptr.2d 136.)   The trial court ruled in favor of plaintiffs, concluding the BIA as originally enacted and prior to its 1988 amendment was limited in application to common carriers with the goal of protecting employees from employers and was not so pervasive as to preempt the entire field.   After oral argument, the Court of Appeal denied Viad Corp.'s writ petition.   Although it recognized Napier “[r]ead in a vacuum ․ appears to directly address and resolve the issue of whether real parties' action is preempted by the BIA” (id. at p. 336, 64 Cal.Rptr.2d 136), the court stated it was guided by more recent analyses employed by the United States Supreme Court in Medtronic, Inc. v. Lohr, supra, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700, (Medtronic ) and Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (Silkwood ) involving state tort actions.   Consequently, the Viad court construed the “language in Napier that Congress intended to occupy ‘the field of regulating locomotive equipment’ ․ narrowly in light of the circumstances in existence at the time of its writing and in light of the statutory framework as a whole.”  (Id. at p. 341, 64 Cal.Rptr.2d 136, fn. omitted.)

Viad discussed the preemption tests articulated in Medtronicand Silkwood and concluded that, notwithstanding Napier, the tort damages sought by the plaintiffs against the manufacturer were not preempted by the BIA.

After careful consideration, we are not persuaded by Viad's analysis of the preemption issue and cannot agree that Medtronic and Silkwood have so changed field preemption analysis as to fundamentally undermine Napier and its progeny.   To explain our disagreement with Viad, we must first describe Medtronic and Silkwood.

Medtronic, Inc. v. Lohr, supra, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700, involved a tort suit against a pacemaker manufacturer under the federal Medical Device Amendments of 1976(MDA) (21 U.S.C. § 360c et seq.) by a Florida woman injured when her pacemaker failed.   The statute in Medtronic contained an express preemption clause, which prohibited establishment of any state requirement different from that contained in the MDA.7 It contained no provision regarding a right of action against manufacturers.   Noting the presumption against preemption, the Supreme Court discerned Congress's purpose through examination of the “language of the pre-emption statute and the ‘statutory framework’ surrounding it.  [Citation.]”  (Id. at p. 486, 116 S.Ct. 2240.)   Also relevant was “the ‘structure and purpose of the statute as a whole,’ [citation], as revealed not only in the text, but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.”  (Ibid.)

The Supreme Court found no indication in the legislative history that Congress meant to preclude product liability suits, which were prevalent at the time of enactment of the MDA. The court viewed the legislative history as indicating “that any fears regarding regulatory burdens were related more to the risk of additional federal and state regulation rather than the danger of preexisting duties under common law.  [Citation.]”  (Id. at p. 490, 116 S.Ct. 2240, italics in original.)   The court further found Medtronic's preemption argument “implausible” (id., at p. 487, 116 S.Ct. 2240) as it's construction of the statute would “have the perverse effect of granting complete immunity from design defect liability to an entire industry that, in the judgment of Congress, needed more stringent regulation in order ‘to provide for the safety and effectiveness of medical devices intended for human use.’   [Citation.]”  (Id. at p. 487, 116 S.Ct. 2240.)   The court also found it “difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct,' ․” (Id. at p. 487, 116 S.Ct. 2240, quoting Silkwood, supra, at p. 251, 104 S.Ct. 615.)

The Medtronic plurality concluded, “Nothing in 360k denies Florida the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements.”  (Id. at p. 495, 116 S.Ct. 2240.)   In reaching this conclusion the court acknowledged its interpretation of the preemption statute was “substantially informed” by FDA regulations interpreting the scope of § 360k's preemptive effect.  (Id. at p. 495, 116 S.Ct. 2240.)   According to the court, the agency “is uniquely qualified to determine whether a particular form of state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ [citation] and, therefore, whether it should be preempted.”   Regulations promulgated by the FDA provided that the statute did not preempt state or local requirements equal or substantially identical to those of the MDA and that state requirements were preempted only when the FDA has established specific counterpart regulations or specific requirements applicable to a particular device.8  These regulations evinced an “overarching concern that preemption occur only where a particular state requirement threatens to interfere with a specific federal interest.”  (Id. at p. 500, 116 S.Ct. 2240.)

The Medtronic majority rejected the argument that any common law cause of action was a “requirement” altering incentives and imposing duties different from or in addition to promulgated FDA standards and that all common law claims by injured plaintiffs against manufacturers of medical devices were prohibited.  (518 U.S. at p. 486, 116 S.Ct. 2240.)   The majority agreed that the express preemption of requirements imposed by the states did not necessarily preclude all common law tort actions.  (518 U.S. at pp. 486-491, 116 S.Ct. 2240.)   A plurality concluded that “given the critical importance of device-specificity in our (and the FDA's) construction of § 360k, it is apparent that few, if any, common-law duties have been pre-empted by this statute.”  (Id. at p. 502, 116 S.Ct. 2240.)

Unconvinced that “future incidents of MDA pre-emption of common-law claims will be ‘few’ or ‘rare’ ” (id. at p. 508, 116 S.Ct. 2240), Justice Breyer nonetheless concurred on the grounds that there was “no actual conflict between any federal requirement and any of the liability-creating premises of the plaintiffs' state law tort suit” (ibid ) and that neither “Congress [nor] the FDA intended the relevant FDA regulations to occupy entirely any relevant field.”  (Ibid.) Justice Breyer also observed that the “MDA will sometimes pre-empt a state law tort suit.”  (Id., at p. 504, 116 S.Ct. 2240.)  “The effects of the state agency regulation and the state tort suit are identical.”  (Id. at p. 504, 116 S.Ct. 2240.)   In a concurring and dissenting opinion by Justice O'Connor, four justices contended that “state common-law damages actions do impose ‘requirements.’  [Citation.]”  (Id. at p. 510, 116 S.Ct. 2240, citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407.)   They argued there was no distinction between requirements and prohibitions posed by positive enactments and those taking the form of common law rules.  (Id. at p. 510, 116 S.Ct. 2240.)   Both Justice Breyer and the concurring and dissenting justices agreed with the statement in Cipollone that “ ‘[state] regulation can be as effectively exerted through an award of damages as through some form of preventive relief.’  [Citation.]”  (518 U.S. at p. 504, 116 S.Ct. 2240, Breyer, J., concurring and p. 510, O'Connor, J., concurring in part and dissenting in part).

In Silkwood v. Kerr-McGee Corp., supra, 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443, a nuclear laboratory worker's father sued under state common law tort principles for injuries his deceased daughter had suffered from plutonium contamination.   The Supreme Court held that a claim for punitive damages arising out of the escape of plutonium from a licensed nuclear facility was not preempted by the federal Atomic Energy Act, despite “an earlier decision, Pacific Gas & Elec. v. Energy Resources Comm'n.  (1983) 461 U.S. 190 [103 S.Ct. 1713, 75 L.Ed.2d 752], in which it had held the same statute was intended to occupy ‘the entire field of nuclear safety concerns.’  (Id. at p. 212 [103 S.Ct. at p. 1726].)”  (Viad, supra, at p. 337, 64 Cal.Rptr.2d 136.)   In doing so, the Supreme Court employed both a field preemption and a conflict preemption analysis (Silkwood, supra, at p. 248, 104 S.Ct. 615), and relied upon a legislative history which revealed a congressional awareness of existing tort remedies as well as closely related legislation providing evidence that Congress did not intend to preclude those state law remedies.  “[T]he only congressional discussion concerning the relationship between the Atomic Energy Act and state tort remedies indicates that Congress assumed that such remedies would be available.”  (Id. at p. 251, 104 S.Ct. 615.)   The Price-Anderson Act (Pub.L. 85-256, 71 Stat. 576) was passed as an amendment to the Atomic Energy Act. It established an indemnification scheme aimed at protecting the industry from potentially bankrupting state-law suits arising out of a nuclear incident.  (Id. at p. 251, 104 S.Ct. 615.)   The court in Silkwood discussed the legislative history of the Price-Anderson Act at length, concluding that “the discussion preceding its enactment and subsequent amendment indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies.”  (Id. at pp. 251-252, 104 S.Ct. 615, fn. omitted.)   This was so “notwithstanding the NRC's exclusive regulatory authority.”  (Id. at p. 254, 104 S.Ct. 615.)

The court also concluded that the Atomic Energy Act's scheme for the assessment of civil penalties did not conflict with an award of punitive damages, finding (see Silkwood, supra, at pp. 249-258, 104 S.Ct. 615) “ample evidence that Congress had no intention of forbidding the States to provide such remedies.”  (Silkwood, 464 U.S. at p. 251, 104 S.Ct. 615.)   Congressional silence took on “added significance in light of Congress' failure to provide any federal remedy for persons injured by such conduct.”  (Id. at p. 251, 104 S.Ct. 615.)

Subsequently, in English v. General Electric Company, supra, 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65, the Supreme Court revisited the issue of preemption in the nuclear safety arena.   The court concluded that federal law did not preempt a state law cause of action for intentional infliction of emotional distress brought by an employee whistleblower alleging retaliation by the employer.   After reviewing the relevant statutory provisions and legislative history, the court held the action did not fall within the boundaries of the preempted field of nuclear safety.   The court looked first to the purpose of the state law in question, finding it was not motivated by safety concerns.   The court then addressed what it considered the “real issue:” whether the state “tort claim is so related to the ‘radiological safety aspects involved in the ․ operation of a nuclear [facility],’ ․ that it falls within the pre-empted field.”  (Id. at p. 85, 110 S.Ct. 2270, quoting Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n.  (1983) 461 U.S. 190, 205, 103 S.Ct. 1713, 75 L.Ed.2d 752.)   The court recognized that “not every state law that in some remote way may affect the nuclear safety decisions made by those who build and run nuclear facilities can be said to fall within the pre-empted field.”   (Id., at p. 85, 110 S.Ct. 2270.)  “Instead, for a state law to fall within the pre-empted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels.   We recognize that the claim for intentional infliction of emotional distress at issue here may have some effect on these decisions, because liability for claims like petitioner's will attach additional consequences to retaliatory conduct by employers.   As employers find retaliation more costly, they will be forced to deal with complaints by whistle-blowers by other means, including altering radiological safety policies.   Nevertheless, we believe that this effect is neither direct nor substantial enough to place petitioner's claim in the pre-empted field.”   (Ibid.)

The court acknowledged that such result was “strongly suggested” by Silkwood.  (Ibid.) Observing that “Silkwood was based in substantial part on legislative history suggesting that Congress did not intend to include in the pre-empted field state tort remedies for radiation-based injuries” (id., at p. 86, 110 S.Ct. 2270), the English court reasoned that potential liability for the kind of claim at issue in Silkwood (state tort remedies/damages for radiation-based injuries) would affect radiological safety decisions more directly and more substantially than will potential liability for emotional distress caused by retaliation for whistleblowing activities.   (Id. at p. 86, 110 S.Ct. 2270.)   Consequently, the court found “no evidence of a ‘clear and manifest’ intent on the part of Congress to pre-empt tort claims like petitioner's.  [Citation.]”  (Id. at p. 86, 110 S.Ct. 2270.)   The court concluded “that petitioner's claim for intentional infliction of emotional distress does not fall within the pre-empted field of nuclear safety as that field has been defined in prior cases.”  (Id. at p. 90, 110 S.Ct. 2270.)

We disagree with Viad that Medtronic and Silkwood have changed preemption analysis so as to undermine the holding of Napier that the BIA “has occupied the field of regulating locomotive equipment” (Napier, at p. 607, 47 S.Ct. 207), preempting all state legislation within that field (id., at pp. 611, 613, 47 S.Ct. 207),and that the preemptive scope of the BIA “extends to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.”  (Id., at p. 611, 47 S.Ct. 207.)

First of all, Medtronic was not even a field preemption case, but involved an express preemption clause prohibiting establishment of a state requirement different from that contained in the MDA. The court relied both upon the legislative history of the MDA, which indicated no intent to interfere with prevalent state tort remedies and upon comprehensive FDA regulations narrowly interpreting the scope of the MDA's preemptive effect and evincing an “overarching concern that pre-emption occur only where a particular state requirement threatens to interfere with a specific federal interest.”   (Medtronic, supra, 518 U.S. at p. 500, 116 S.Ct. 2240.)

English defined the field which the Atomic Energy Act occupied as that of “radiological safety.”  (English, supra, 496 U.S. at pp. 82, 85, 110 S.Ct. 2270.)   In Silkwood, the court found no congressional intent to preempt punitive damages actions for conduct relating to radiation hazards.   The court was greatly influenced by the Price-Anderson Act, enacted in 1957, which evidenced a congressional intent that state court remedies would not be affected by AEC regulations.  (Id. at pp. 251-255, 104 S.Ct. 615.)   The court was also influenced by Congress' failure to provide any alternate federal remedy for persons injured by exposure to hazardous nuclear materials.  (Id. at p. 251, 104 S.Ct. 615.)   In both Medtronic and Silkwood, the Supreme Court did not believe Congress would, without comment, supplant existing state tort remedies, leaving victims no remedy.  (Silkwood, at p. 251, 104 S.Ct. 615;  Medtronic, at p. 487, 116 S.Ct. 2240.)

In contrast to the statutory schemes under scrutiny in Silkwood and Medtronic, there was no tort remedy extant at the time the BIA was enacted.  (See discussion, infra, at p. ----) Further, Congress here has provided a remedy for injured employees in the form of the FELA, leading to an inference that Congress intended to supplant other remedies which might in future be enacted by state law.   As Viad recognized, the primary aim behind both the BIA and the FELA was safety.  (Viad, at p. 337, 64 Cal.Rptr.2d 136.)   The FELA was originally crafted to shift “ ‘part of the “ ‘human overhead’ ” of doing business from employees to their employers.   [Citations.]' ” (id. at p. 337, 64 Cal.Rptr.2d 136) and that it since has been “construed liberally to further Congress's remedial and humanitarian goal.  [Citations.]  One of the primary purposes of FELA was to eliminate defenses to tort liability and to facilitate recovery.  [Citation.]”  (Id., at p. 338, 64 Cal.Rptr.2d 136.)   The remedies provided for violations of the BIA were in many respects more “worker friendly” than traditional tort remedies.   For example, under the FELA, violations of the BIA which result in injuries are negligent per se.  (Fryer v. St. Louis-San Francisco Ry. Co. (1933) 333 Mo. 740, 63 S.W.2d 47.)   The FELA statutorily established a right to sue for wrongful death where such a claim was not recognized by common law.  (St. Louis, I. Mtn. & S. Ry. Co. v. Hesterly (1913) 228 U.S. 702, 33 S.Ct. 703, 57 L.Ed. 1031.)   Negligence of the employee was not a bar to recovery, but only reduced the amount of damages proportionately.   Where the injury or death resulted from violations of the BIA or the Safety Appliance Act, even comparative fault was not a defense.  (45 U.S.C. § 53.)

Moreover, we believe Viad draws the wrong conclusion from the absence of state tort remedies against manufacturers at the time the BIA was enacted.   As Viad describes, in Silkwood and Medtronic the Supreme Court discerned a congressional assumption that tort remedies would be available, based upon the existence of state tort remedies at the time the relevant legislation was enacted and the absence of any discernible legislative intent to eliminate those existing state law remedies.   In contrast, when the BIA was enacted there existed no private right of action against a manufacturer.   That right was established when the privity doctrine was repudiated in MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382, 111 N.E. 1050, decided after enactment of the BIA, but 10 years before Napier.   Strict liability of a manufacturer was not established until much later in the 1960's.  (Viad, supra, at p. 338, 64 Cal.Rptr.2d 136, citing Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, and Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168.)   Viad reasons, “Because we find no intent to expressly preclude tort remedies against a manufacturer, we cannot say the field, which Napier found to be completely occupied, includes tort liabilities not contemplated at the time Napier was written.”  (Id. at p. 339, 47 S.Ct. 207.)

Unlike Viad, we cannot read the legislative history as evidencing a congressional intent to leave intact state tort remedies which at the time did not exist.   Indeed, the opposite inference is easier to draw, particularly if the BIA is considered together with the FELA, which provides a federal remedy to injured employees.

Nor do we find the legislative history of either the MDA as examined in Medtronic or the Atomic Energy Act as examined in Silkwood remotely analogous to that of the BIA. Certainly there is no agency regulation under the BIA comparable to the FDA regulations relied upon in Medtronic, which narrowly interpret the preemptive scope of the law.   Nor does any companion legislation, such as the Price Anderson Act in Silkwood, demonstrate congressional intent to leave existing state tort remedies intact.

Viad rejected the claim made here by GMC that because Medtronic and Silkwood involved very different statutes and subject matter (“field preemption” not even being an issue in Medtronic ) the analysis used in those cases was less applicable than that of Napier.  “[T]he pronouncement by Napier that Congress has occupied the entire ‘field’ does not result in a completely different analysis.   Whether the preemption is classified as express, field, or conflict does not change the ultimate determination of congressional intent.   Indeed, as the California Supreme Court recently noted:  ‘The “three categories” of preemption ․ should not be taken to be “rigidly distinct.   Indeed field pre-emption may be understood as a species of conflict pre-emption:  A state law that falls within a pre-empted field conflicts with Congress' intent (either express or plainly implied) to exclude state regulation.”  ․’ (Smiley v. Citibank (1995) 11 Cal.4th 138, 148, fn. 3 [44 Cal.Rptr.2d 441, 900 P.2d 690] ․, citing English v. General Electric Co., supra, 496 U.S. at pp. 79-80 [110 S.Ct. 2270], fn.   5․)”  (Viad, supra, at p. 339, 64 Cal.Rptr.2d 136.)

 To say that a state law falling within a preempted field conflicts with Congress' intent to exclude state regulation is not to say that congressional intent to entirely occupy a field must be founded upon an actual conflict between the state regulation and a specific federal law or regulation, the inference that Viad appears to draw.   Indeed, Napier is a prime example of a case wherein the Supreme Court explicitly noted the absence of any specific federal order, regulation or legislation regarding the particular devices at issue.  (Napier, 272 U.S. 605, 609, 47 S.Ct. 207, 71 L.Ed. 432.)   Nevertheless, congressional occupation of the entire field of locomotive equipment and safety preempted state regulation of those devices (automatic fire doors and cab curtains).   It appears to us that Viad mistakenly conflates the categories of conflict preemption and field preemption, requiring demonstration of an actual conflict between an existing federal regulation concerning materials used in locomotives and the state tort claim.  (See Viad, at p. 340, 64 Cal.Rptr.2d 136.)

Further, we believe Viad too lightly dismisses as “speculative” (id., at p. 340, 64 Cal.Rptr.2d 136) the impact of state tort actions and conflicting liability determinations upon locomotive design, manufacture and materials and upon the need for national uniformity of regulations, given the interstate nature of railroads.

 As recognized on several occasions by our United States Supreme Court, “ ‘[state] regulation can be as effectively exerted through an award of damages as through some form of preventive relief.   The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’  San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247 [79 S.Ct. 773, 3 L.Ed.2d 775] (1959).”  (Cipollone v. Liggett Group, Inc., supra, 505 U.S. 504, 521, 112 S.Ct. 2608, 120 L.Ed.2d 407;  accord, Medtronic, Inc. v. Lohr, supra, at p. 504, 116 S.Ct. 2240, Breyer, J., concurring.)   The effects of state agency regulation and a state tort suit are often identical.  (See Medtronic, Inc. v. Lohr, supra, Breyer, J., concurring.)  “Apart from compensating victims of accidents for their injuries, the purpose of tort liability is to induce defendants to conform their conduct to a standard of care established by the state.   [Citation.]”  (Law, supra, at p. 910.)   A locomotive equipment manufacturer found to have negligently designed or manufactured a locomotive by including asbestos components or whose locomotives are found defective by virtue of their asbestos components is expected to modify that system to reduce the risk of injury.   If the manufacturer fails to change its design or manufacture of the locomotive, it may in the next case be held liable for substantial punitive damages.   If each state were to adopt different liability-triggering standards, conceivably manufacturers would be required to make different locomotives for different states and locomotive operators would be required to stop at state lines to adjust equipment or to switch locomotives.   More likely, manufacturers would sell locomotives adhering to the standards set by the most stringent state.   Congress's goal of uniform, federal railroad regulation would be undermined.  (See Law, supra, pp. 910-911.) 9

 There is no doubt that the Secretary of Transportation has authority to regulate the design of the locomotive and could order the elimination of asbestos in locomotive components.   Imposing tort liability on railroad locomotive manufacturers clearly would affect “ ‘the design, the construction, and the material’ of locomotives.”  (Napier, supra, 272 U.S. at p. 611, 47 S.Ct. 207;  Law, supra, at p. 911.)   This effect on interstate commerce would be both “direct and substantial.”  (English, supra, at p. 85, 110 S.Ct. 2270.)   As Law explains, the imposition of tort liability on railroad equipment manufacturers would force them to conform to design and construction standards imposed by the states.  “This would transfer the regulatory locus from the Secretary of Transportation to the state courts-a result the BIA was clearly designed to foreclose.  [Citation.]”  (Law, supra, at pp. 911-912, fn. omitted.)

 Our conclusion is supported by numerous state and federal lower court cases specifically addressing the preemption of state tort damage actions by the BIA. (E.g., Springston v. Consolidated Rail Corp., supra, 130 F.3d 241;  Missouri Pacific R.R. v. Railroad Com'n (5th Cir.1988) 850 F.2d 264, 268;  Marshall v. Burlington Northern Inc., supra, 720 F.2d 1149;  Carter v. Consolidated Rail Corp., 1998 WL 78749 (Ohio App. 10 Dist. Feb 10, 1998) (No. 97APE08-990);  In re Train Collision at Gary, Indiana (Ind.App.1996) 670 N.E.2d 902.)   Although we recognize these cases are not controlling,10 we find them persuasive in their recognition of the broad preemptive sweep of thE Bia as articulated by thE supremE court in Napier.

We do not agree with Viad that Medtronic and Silkwood have undermined Napier and its analysis of the broad preemptive reach of the BIA. In the more than 70 years since Napier was decided, Congress has shown no indication that the Supreme Court did not in that case accurately represent congressional intent to completely occupy the field of “the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.”  (Id. at p. 611, 47 S.Ct. 207.)

CONCLUSION

The lower court correctly found appellants' state tort causes of action preempted by the BIA and did not err in dismissing those actions.   The judgments are therefore affirmed.   Respondent is awarded its costs on appeal.

FOOTNOTES

1.   At our request, the parties have generally identified the following components of a GMC diesel electric locomotive as possibly having contained asbestos:“Steam Generators:  Used as insulation on passenger locomotives, primarily to provide steam heat for the passenger and dining cars;“Diesel Exhausts:  Used to insulate certain diesel-exhaust stacks;“Insulating Tape:  Used in varying thicknesses of between 1/16th to 1/2 inch on the steam line from the steam generator, as well as some of the water feed/supply lines within the locomotive cab.“Gaskets:  Used on the diesel engines (heads, manifolds, exhaust, etc.), as well as on flanges for steam or other hot-fluid lines.“Electrical Motors:  Used as insulation on windings and/or on wiring itself;“Traction Motors:  Possibly used for insulating electrical windings;“Brakeshoes:  Experimentally used between 1964 and 1983 in certain friction composite brake shoes.“Air Lines:  Possibly used as a protective sleeve on airbrake lines.”   (Letter of May 20, 1998, jointly submitted by the parties)

2.   Harry Goodyear worked as a railroad machinist and locomotive mechanic from 1952 through 1983.   Five years later, he was diagnosed with asbestosis and asbestos related pleural disease.   He died on May 13, 1993, as a result of these diseases.   His wife filed this wrongful death action on December 30, 1993.Victor Hellquist worked as a sheetmetal worker, pipefitter and quality-control inspector for the Atchison, Topeka & Santa Fe Railway and Amtrak from 1950 through 1985.   He was diagnosed with mesothelioma, an asbestos caused cancer of the outer lung lining on August 12, 1993.   He died of the disease on November 2, 1993.   On October 27, 1994, his wife and children initiated this wrongful death lawsuit.Robert Scheiding worked as an electrician for Southern Pacific Railroad, among other companies, from 1950 through 1957.   He retired in 1976 and was subsequently diagnosed with asbestosis and asbestos pleural disease.   This action, filed on October 18, 1994, seeks compensation for his asbestos injuries and for his wife's loss of consortium.Gaylord Blackburn worked as an electrician for various entities, including Western Pacific Railroad from 1946 through 1961.   He retired in 1988 and was diagnosed with asbestos related pleural disease on July 9, 1992.   He and his wife filed this lawsuit seeking compensation for his asbestos injuries and for his wife's loss of consortium.Billy Umphriss was employed as an engine supplyman and fireman for the Union Pacific Railroad from 1941 through 1942 and from 1950 through 1961.   He also worked as a fireman and third engineer for several maritime companies.   He was diagnosed with asbestosis and asbestos related pleural disease in May 1994 and with asbestos related lung cancer in September 1994.   In this action he seeks compensation for his asbestos related injuries.

3.   In most of these actions, due to the nature of their careers, appellants were possibly exposed to asbestos from a variety of sources.   As is typical in asbestos litigation, appellants named close to two hundred defendants in their original complaints.   As against defendant GMC, appellants alleged that the locomotives and their component parts were unsafe under the federal BIA.

4.   The legislative history of the BIA is described in detail in Viad, supra, at pp.   334-335, 64 Cal.Rptr.2d 136:  “The BIA was enacted in 1911, as an amendment to the Federal Employers' Liability Act (FELA, 45 U.S.C. § 51 et seq.).  (Urie v. Thompson (1949) 337 U.S. 163, 189 [69 S.Ct. 1018, 1034, 93 L.Ed. 1282, 11 A.L.R.2d 252].)   In its original codification, the BIA provided, inter alia:  (1) that it applied to any common carrier or carriers (defined as a railroad), their officers, agents, and employees, engaged in the transportation of passengers or property by railroad;  (2) that it was unlawful for any common carrier to use any locomotive engine propelled by steam unless its boiler and appurtenances were in proper condition and safe to operate, and that all boilers shall be inspected from time to time and be able to withstand such test or tests as prescribed in the rules and regulations therein;  (3) that a chief inspector and two assistant inspectors shall be appointed to ascertain that common carriers observe the requirements of the act;  (4) there would be fifty inspectors assigned to the different states, each having certain job qualifications;  (5) that each common carrier was required to file its rules and instructions for inspection with the chief inspector;  (6) that each inspector had certain specified duties;  (7) that the chief inspector must report to the Interstate Commerce Commission on an annual basis;  and (8) that a statement of all accidents must be filed with the chief inspector.  (Pub.L. No. 383 (1911) §§ 1-8, 36 Stat. 913-916.)“In addition, it contained a provision ‘That any common carrier violating this Act or any rule or regulation made under its provisions or any lawful order of any inspector shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States attorney․  ’ (Pub.L. No. 383 (1911) § 9, 36 Stat. 916.)“In 1915 and 1924, the BIA was amended to include the entire locomotive and all its parts.   The statute was also amended several times between 1940 and 1980 in portions not pertinent to our discussion.“In 1988 and 1992, however, the civil penalty provision of the BIA was amended to read as follows:  ‘Any person (including but not limited to a railroad;  any manager, supervisor, official, or other employee or agent of a railroad;  any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities;  any independent contractor providing goods or services to a railroad;  and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) violating sections 22 to 29 and 31 to 34 of this title, or any rule or regulation made under its provisions or any lawful order of any inspector, shall be liable to a penalty․  ’ (Former 45 U.S.C. § 34, Pub.L. No. 100-342 (1988) § 14(7), 102 Stat. 633;  Pub.L. No. 102-365 (1992) § 9(a)(8), 106 Stat. 978.)”  (Viad, supra, 55 Cal.App.4th at p. 334, 64 Cal.Rptr.2d 136, italics added.)In 1994, the particular words describing “[a]ny person” were “omitted as surplus․”  (See, 49 U.S.C.A. § 21302, Historical and Statutory Notes Revision Notes and Legislative Reports 1994 Acts, p. 127.)

5.   In a footnote, the Law court limited its holding to “state claims alleging that manufacturers defectively designed a locomotive or its parts.   We do not reach the question of whether claims for manufacturing defects are likewise preempted by the BIA.” (Id. at p. 912, fn. 2.)

6.   Law and Viad were decided within days of each other.   Unsurprisingly, neither opinion refers to the other.

7.   The preemption section of the statute provided:  “ ‘no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement (1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.’ ”  (Medtronic, at pp. 481-482, 116 S.Ct. 2240.)

8.   The court described these FDA regulations in pertinent part:  “§ 360k ‘does not preempt State or local requirements that are equal to or substantially identical to, requirements imposed by or under the act.’   21 CFR § 808.1(d)(2) (1995);  [citation].”  (Id. at pp. 496-497, 116 S.Ct. 2240.)“FDA regulations ․ provide that state requirements are preempted ‘only’ when the FDA has established ‘specific counterpart regulations or ․ other specific requirements applicable to a particular device.’  21 CFR § 808.1(d) (1995).   They further note that the statute is not intended to pre-empt ‘State or local requirements of general applicability where the purpose of the requirement relates either to other products in addition to devices ․ or to unfair trade practices in which the requirements are not limited to devices.’  § 808.1(d)(1)” (Id. at pp. 498-499, 116 S.Ct. 2240, fn. omitted.)

9.   “This broad preemptive sweep is necessary to maintain uniformity of railroad operating standards across state lines.   Locomotives are designed to travel long distances, with most railroad routes wending through interstate commerce.   The virtue of uniform national regulation ‘is self-evident:  locomotive companies need only concern themselves with one set of equipment regulations and need not be prepared to remove or add equipment as they travel from state to state.’  (Southern Pac. Transp. Co. v. Oregon PUC, 9 F.3d 807, 811 (9th Cir.1993);  see also R.J. Corman R.R. v. Palmore, 999 F.2d 149, 152 (6th Cir.1993) (‘Th[e] lasting history of pervasive and uniquely-tailored congressional action indicates Congress's general intent that railroads should be regulated primarily on a national level through an integrated network of federal law.’).   Any state law that undermines this regime is preempted by the BIA.” (Law, supra, at p. 910.)

10.   California courts are not constrained by opinions of lower federal courts, even on federal questions.  (See, e.g., Service Employees Internat. Union v. County of Los Angeles (1990) 225 Cal.App.3d 761, 768, 275 Cal.Rptr. 508.)

KLINE, Presiding Justice.

HAERLE and RUVOLO, JJ., concur.