July 21, 2009
Welcome to the July 21, 2009, and inaugural issue of Rail Update, the copyrighted and trademarked e-newsletter on developments in Federal Railroad Administration regulations and state and federal court decisions of interest to rail
industry personnel. It is written, edited, and produced by Frederick B. Goldsmith
and E. Richard Ogrodowski of Goldsmith & Ogrodowski, LLC, based in Pittsburgh, Pennsylvania, U.S.A.
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This issue's photo depicts the CSX tracks west of Pittsburgh in McKees Rocks, Pennsylvania, as they cross over the mouth of Chartiers Creek, where it empties into the Ohio River at Brunot Island.
G&O Investigations
G&O is investigating possible price-fixing by the three
largest helicopter operators in the Gulf of Mexico which service
offshore rigs and platforms. The companies in question received subpoenas from the U.S. Department of Justice last week. For more
on this, see Lagniappe, below.
G&O is also investigating what appears to be a deceptive and
potentially illegal magazine subscription sales practice whereby
people receive magazines they never subscribed to, then receive bills
and, when they understandably don't pay the bills, threatening
collection notices. The companies behind this appear to be National
Credit Audit Corporation, or NCAC, and its parent, ChoicePoint, Inc.,
now owned by the parent of Lexis-Nexis, Reed Elsevier. If you have been
the victim of a magazine or other deceptive sales or marketing scheme,
or have had what you believe to be a deceptive or unlawful experience
with a collection firm, please contact Fred Goldsmith at
fbg@golawllc.com, (412) 281-4340,
or (toll free) (877) 40-GO-LAW (877-404-6529).
G&O Personnel News
On July 14, 2009, Fred Goldsmith co-moderated a continuing legal education seminar entitled, "PLAIN TALK ON DEPOSITIONS: Four Judges Speak to State and Federal Court Deposition Practice and Strategy in Discovery and Trial in Western Pennsylvania." Sponsors of the program
were the Allegheny County Bar Association’s Federal Court Section, the Judges of the U.S. District Court for the Western District of Pennsylvania, and the Pennsylvania Bar Association's Federal Practice Committee.
The June 2009 issue of MarineNews magazine includes a column by Fred Goldsmith on class actions in the maritime industry.
Rich Ogrodowski recently moderated two federal court continuing legal education seminars presented by the Western Pennsylvania Chapter of the Federal Bar Association in conjunction with the U.S. District Court for the Western District of Pennsylvania, each focused on new Electronic Discovery rules and procedures: on May 29, 2009, "Outside Counsel, Corporate Counsel, and E-Discovery Consultant: Roles and Responsibilities of Each - Working Together to Solve the E-Discovery Puzzle"...and on March 13, 2009, "The New Local Rule's Duty to Investigate and the Top 10 Things that You and Your Client Must Do to Comply With This New Duty."
Fred Goldsmith was recently elected Vice Chair of the Federal Court Section of the Allegheny County Bar Association.
Recent Federal Railroad Administration Notices in the Federal Register
FRA
Seeks Comments on Its Interim Position on Hours of Service
Regulations
On June 26, 2009, the FRA published in the
Federal Register its interim position on certain interpretive
questions arising out of the important amendments enacted in 2008 to the
federal railroad safety laws that govern how long an employee in a
certain category may remain on duty and how long the employee must be
off duty before the employee may return to duty. The FRA also proposes
to change its interpretation of its rule against a train or signal
employee being on duty without having had a minimum number of hours off
duty in the prior 24 hours. The FRA requests public comment on both the
interim interpretations and the proposed interpretation. Comments on
the interim interpretations are due by July 27, 2009, and comments on
the proposed interpretation are due by October 26, 2009. Additional
information can be found in the
June 26, 2009, Federal Register.
CSX Seeks Approval of Discontinuance or Modification of a Railroad Signal System or Relief From the Requirements of 49 CFR Part 236 in Rowlesburg, WV
CSX Transportation, Inc. (“CSX”) petitioned the FRA seeking approval for the discontinuance or modification of a signal system or relief from the requirements of 49 CFR Part 236. Specifically, CSX “seeks approval of the proposed discontinuance of the manned tower ‘MK’ at Rowlesburg, Milepost (MP) BA253.9; the conversion of power-operated switches #10 and #16 at Rowlesburg to DTMF controlled switches; the discontinuance of controlled signals #4 and #42 at Terra Alta, MP BA 242.0; the installation of double track hold-out signals #2, #4, #6, #8 and the conversion of the power operated switch to a hand-operated throw electrically locked switch at Rinard, MP BA 240.7; and the rearrangement of track configuration at Rowlesburg and McMillan, MP BA 252.3. Signal Rule CPS-261 will be used between Rowlesburg and Rinard.” Details on protesting the application can be found in the
June 16, 2009,
Federal Register.
Recent State & Federal Court Railroad Decisions
U.S. Supreme Court: Trial Court Must Give Jury Instruction on “Genuine and Serious” Standard for Fear-of-Cancer Damages at Defendant’s Request in FELA Case
In CSX Transportation, Inc. v. Hensley, 129 S. Ct. 2139 (June 1, 2009), Thurston Hensley, employed by CSX as an electrician, sought pain and suffering damages from CSX based on, among other things, his fear of developing lung cancer. He sued under the FELA. CSX proposed two jury instructions related to this claim, one stating that Hensley’s fear must be genuine and serious, see Norfolk & Western R. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210 (2003), the other outlining factors for the jury to consider in applying the Ayers standard. The trial court denied both of CSX’s requests, and the jury awarded Hensley $5 million. The Supreme Court held that the trial court’s refusal to give the requested instructions constituted “clear error,” and reversed and remanded the case.
U.S. D.C. Circuit Court of Appeals: Direct Observation During Urine Tests Permitted to Combat Potential Use of “Whizzinator”
In BNSF Railway Co. v. United States Department of Transportation, 2009 WL 1350467 (D.C. Cir. May 15, 2009), the D.C. Circuit reviewed U.S. Department of Transportation (“DOT”) regulations requiring that urine tests of employees returning after drug treatment be conducted under “direct observation,” and that a same-gender observer “watch the urine go from the employee’s body into the collection container.” The employee must also partially disrobe before performing the test, to ensure no “cheating device” is being used. The court found the DOT did not act arbitrarily or capriciously in issuing the regulation and despite the highly invasive nature of the tests the regulation did not run afoul of the Fourth Amendments prohibition of unreasonable searches.
U.S. Sixth Circuit Court of Appeals: Federal Railway Safety Act Regulation Covers the Issue of Ballast Size, Thereby Precluding Railroad Employees’ FELA Claims
In Nickels v. Grand Trunk Western Railroad, Inc., 560 F.3d 426 (6th Cir. March 18, 2009), Stanley Nickels and Donald Cooper filed claims under the FELA against Grand Trunk alleging they suffered injuries caused by years of walking on oversized track ballast. The trial court granted Grand Trunk’s motions for summary judgment finding that a Federal Railway Safety Act (“FRSA”) regulation on ballast covered the subject matter of Nickels’ and Cooper’s FELA claims. The Sixth Circuit affirmed the trial court’s grants of summary judgment to Grand Trunk and, in so doing, held that since 49 C.F.R. § 213.103 determines what is reasonable ballast size and composition for track, the regulation precluded Nickels’ and Cooper’s claims Grand Trunk failed to provide a safe working environment by using large mainline ballast—instead of smaller yard ballast—underneath the tracks receiving heavy foot traffic.
U.S. Seventh Circuit Court of Appeals: Railroad Worker’s Damages Award Should Be Cut In Half to Account for His Comparative Negligence
In Fletcher v. Chicago Rail Link, LLC, 2009 WL 1479174 (7th Cir. May 28, 2009), the jury awarded William Fletcher damages in excess of $700,000 for his FELA claim that the railroad failed to maintain the utility vehicle he used to transport equipment for use in the railroad yard in a safe condition or failed to warn him it was unsafe. The jury also found Fletcher was 50% responsible for causing his injuries, which resulted from a collision with another vehicle—driven by a person with no connection to the railroad—in the railroad yard. Pursuant to 45 U.S.C. § 53, the trial court did not cut the damages in half due to Fletcher’s negligence because it found the railroad violated an Illinois Commerce Commission regulation that requires motor vehicles used by railroad workers as part of their job be maintained in a safe condition. Under 45 U.S.C. § 53, a damages award in an FELA case is not reduced if the railroad violates “any statute enacted for the safety of employees” and the violation contributes to the accident. The trial court found the Illinois Commerce Commission regulation fell within 45 U.S.C. § 53. The Seventh Circuit affirmed the determination of liability but found the damages should be cut in half to account for Fletcher’s 50% comparative negligence. The Seventh Circuit held that the Illinois Commerce Commission regulation was not a federal railroad safety regulation under 45 U.S.C. § 53, as it did not relate to any safety concerns of federal law.
Illinois Federal District Court: Railroad Police Officer Could Maintain Claim Under the FELA
In Geraty v. Northeast Illinois Regional, 2009 WL 691280 (N.D. Ill. Mar. 16, 2009), Lalee Geraty, a police officer for Metra, filed suit under the FELA as a result of a fall from her foot getting tangled in plastic sheeting on the floor that previously had been in a garbage can. Metra filed a motion for summary judgment arguing the FELA did not cover Geraty, as she was not performing any duties in furtherance of interstate commerce. The trial court denied Metra’s motion finding that Geraty’s duties, which included assisting patrons, making arrests, responding to consumer issues, and patrolling a portion of tracks that Metra made available to interstate trains, furthered interstate commerce.
Indiana Federal District Court: Locomotive Inspection Act Did Not Preclude Railroad Worker’s FELA Claim Pertaining to the Safety of Footwear
In Becraft v. Norfolk Southern Railway Co., 2009 WL 1605293 (N.D. Ind. June 5, 2009), Eric Becraft alleged that he slipped and fell from a locomotive due to his wearing company-issued spiked shoes on a cold and icy day, which he further alleged Norfolk Southern required its employees to wear in such weather conditions. Norfolk Southern filed a motion for summary judgment arguing the Locomotive Inspection Act (“LIA”) precluded Becraft’s FELA claim. In denying Norfolk Southern’s motion, the trial court found “the LIA applies only to aspects of the railroad that fit within the LIA’s definition—the locomotive, its parts, and appurtenances—and no more” and that the LIA is not broad enough to occupy the field of footwear safety so as to preempt Becraft’s claim.
West Virginia Supreme Court of Appeals: To Be Valid Under the FELA, a Release Executed in Connection with a Voluntary Separation Program Must Reflect a Bargained-For Settlement of a Known Claim for a Specific Injury
In Ratliff v. Norfolk Southern Railway Co., 2009 WL 649268 (W.Va. March 12, 2009), the West Virginia Supreme Court of Appeals held a release the decedent, Sparrell Ratliff, Jr., signed in connection with a voluntary separation program did not bar his estate’s FELA claim arising from his developing mesothelioma many years later. The court further held that to be valid under Section 55 of the FELA, which prohibits devices exempting employers from FELA liability, a release executed in connection with a voluntary separation program must reflect a bargained-for settlement of a known claim for a specific injury.
Nebraska Supreme Court: Exclusion of Expert Testimony Based on Epidemiological Studies Was Error
IIn a lengthy opinion that discussed many of the scientific concepts and research methodologies commonly used to prove causation in toxic tort cases, the Nebraska Supreme Court held in King v. Burlington Northern Sante Fe Railway Co., 277 Neb. 203, 762 N.W.2d 24 (Feb. 27, 2009), that the district court erred when it prohibited one of the deceased employee’s experts from testifying concerning the potential causal relationship between diesel exhaust exposure and multiple myeloma, a cancer originating in the bone marrow plasma cells. The Nebraska Supreme Court further held that in determining the admissibility of the expert’s opinion, the district court erred in concluding that the expert’s opinion was unreliable because he was unable to identify a study that concludes diesel exhaust causes multiple myeloma. Instead, the district court should have focused on whether a reasonable expert would rely on the studies used by the plaintiff’s expert to find a causal relationship.
Wisconsin Federal District Court: Fire on Locomotive, Even If Not Caused by Defendant’s Negligence, Can Constitute Violation of LIA
In denying the defendant’s motion for summary judgment, the district court held in Streeter v. Canadian Pacific Railroad, 2009 WL 1080853 (E.D. Wis. Apr. 22, 2009), that the mere existence of a fire on a locomotive may constitute a violation of the Locomotive Inspection Act (“LIA”), even if the fire was not caused by the railroad’s negligence, a defective component within the locomotive, or any other violation of a statute or regulation governing rail safety. The holding is particularly significant because a LIA violation is negligence per se under the FELA.
Ohio Court of Appeals: Statutory Prima Facie Requirements Apply Only to Asbestos-Related Claims, Not Claims Pertaining to Exposure to Other Substances
In Riedel v. Consolidated Rail Corporation, 2009 WL 712495 (Ohio Ct. App. Mar. 19, 2009), the Ohio Court of Appeals held that the trial court properly severed the plaintiffs’ non-asbestos-related occupational disease claims after administratively dismissing the plaintiffs’ asbestos-related claims. Ohio law requires a plaintiff to set forth a prima facie showing that his physical impairment is the result of a medical condition, and that the person’s exposure to asbestos was a substantial contributing factor to the medical condition. This requirement, however, only applies to asbestos-related claims, and not to claims stemming from exposure to diesel locomotive exhaust, sand, silica, solvents, and other toxic substances.
Pennsylvania Federal District Court: FELA Cases Filed in State Court May Not Be Removed to Federal Court
In Fritchman v. Norfolk Southern Railway Co., 2009 WL 722301 (E.D. Pa. Mar. 17, 2009), the trial court held that Norfolk Southern could not remove to federal court a lawsuit filed in state court by a full-time jitney van driver employed by Professional Transportation, Inc. asserting claims under the FELA, despite Norfolk Southern’s claim that it did not exercise the necessary amount of control over the employee to render her an employee covered by the FELA. FELA cases are generally nonremovable.
Mississippi Supreme Court: Electrical Engineer May Provide Expert Testimony About Adequacy of Line of Sight in Wrongful Death Action Against Railroad
In Kilhullen v. Kansas City Southern Railway, 8 So.3d 168 (Miss. May 14, 2009), the Mississippi Supreme Court held that an engineer with an electrical engineering-focused education an experience mostly in conducting home inspections was competent to render expert testimony on whether the train operator had adequate visibility at a crossing immediately before the train struck the tractor-trailer, killing the driver. The court held the engineer had the proper qualifications to take measurements at the accident site and input those figures into “an accepted mathematical equation,” that the plaintiff did not need to retain an accident reconstruction expert.
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