All members of the court in Kurns v. Railroad Friction Products Corp., et al. felt bound by stare decisis (in this case Napier) to hold that the petitioners' design defect claims against the manufacturers of asbestos-containing friction products used in locomotives were preempted by the Locomotive Inspection Act (LIA). Nevertheless, the case produced both a concurrence and a dissent. The debate revolved around the question of whether or not a "failure-to-warn" claim is 1) a subset of design defect; 2) subsumed within the power of the LIA to require or prohibit the use of a particular product as it would thus have the power to make use of the product conditioned upon warnings; or, 3) an independent cause of action separate from design defect and thus outside the field preempted by LIA.
The majority, relying on the following from the Restatement (Third) of Torts: Products Liability:
A failure-to-warn claim alleges that a product is defective 'when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, . . . and the omission of the instructions or warnings renders the product not reasonably safe'
held, "[t]hus, the 'gravamen' of petitioners' failure-to-warn claims 'is still that [plaintiff] suffered harmful consequences as a result of his exposure to asbestos contained in locomotive parts and appurtenances.'" In other words, a complaint about a lack of a warning is a complaint about the product that lacks it so that the LIA's control over any product that went into a locomotive necessitates a finding of preemption.
Justice Kagan concurred writing "... if an agency has the power to prohibit the use of locomotive equipment, it also has the power to condition the use of that equipment on proper warnings." She concluded "[a] nd because the agency could have required warnings about the equipment's use, the petitioners' failure-to-warn claims, no less than their defective-design claims, are preempted under Napier." Her decision turned on the implicit power of the agency to direct how products were to be used given that it had the power to which products were to be used.
In a dissent joined by Justices Ginsberg and Breyer, Justice Sotomayor reasoned " a product may be flawlessly designed and still subject its manufacturer or seller to liability for lack of adequate instructions or warnings." Accordingly she concluded "[r]ather, the 'gravamen' of these claims is that petitioners' decedent . . . could have avoided the harmful consequences of exposure to asbestos while repairing precisely the same locomotive parts had respondents cautioned him, for example, to wear a mask." Their notion then is that preemption ends at the product itself and does not extend to the information necessary for its safe use.
The majority responded in a footnote as follows:
A failure-to-warn claim imposes liability on a particular design of locomotive equipment unless warnings deemed sufficient under state law are given. This duty to warn and the accompanying threat of liability will inevitably influence a manufacturer's choice whether to use that particular design.
Warnings then are seen by the majority as inseparable from a product's design.
So is this a big deal or not? On the one hand, the idea that warnings and instructions, the information component if you will of a product, are just part of a product's design (which in turn incorporates the common law's regulatory scheme, such as it is) and not a foundation for an independent cause of action sounds fairly revolutionary. But upon reflection it not only makes a lot of sense, it's unlikely to have much impact since claiming that a product's design is defective because its warnings are inadequate ought not require any proof beyond the usual in failure-to-warn cases. On the other hand, in those cases where courts have found preemption but held that warnings were somehow separate from the product specified by the government so that plaintiffs' claims survived, this could be a very big deal indeed.