Interlocutory Appeal Citing Federal Safety Appliance Act Denied United States District Court, D. Kansas, October 18, 2018

KANSAS — The plaintiff Nancy Little filed suit individually and as the personal representative of the estate of her father, Robert Rabe, against the defendant The Budd Company (Budd). The plaintiff alleges that her father was exposed to asbestos-containing pipe insulation that Budd placed in passenger railcars it manufactured; this exposure allegedly caused Mr. Rabe’s mesothelioma.

Defendant Budd asserted several defenses, including that the Federal Safety Appliance Act (SAA) preempts plaintiff’s state law claims.  Budd twice moved the court to dismiss plaintiff’s claims based on SAA preemption, and both attempts were denied. Budd subsequently asked the court to amend and certify its two Orders holding that SAA preemption does not bar the plaintiff’s claims for an interlocutory appeal under 28 U.S.C. Section 1291.  Those two orders were: (1) the court’s Memorandum and Order denying defendant’s Motion for Judgment on the Pleadings, and (2) the court’s Memorandum and Order granting in part and denying in part defendant’s Motion for Summary Judgment.

The court held that defendant did not cite any judicial opinions that directly contradict the court’s rulings refusing to dismiss the 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.”

For this reason, and because of the “Tenth Circuit’s demonstrated reluctance to accept cases for interlocutory appeal except in the rarest of circumstances,”  the court denied defendant’s Motion to Amend and to Certify Orders for Interlocutory Appeal.

Read the full case decision here.

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