GREGORY H. WOODS, District Judge:
Plaintiff Nathaniel Henderson brought this action against National Railroad Passenger Corporation d/b/a Amtrak ("Amtrak") under the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq., alleging that, while working for Amtrak as a signal foreman, he was struck by a train and injured as a result of Amtrak's negligence. Amtrak now moves in limine to preclude Henderson from offering evidence or argument at trial relevant to negligence claims purportedly precluded by the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20101 et seq., and the regulations promulgated thereunder.
Henderson commenced this action in September 2013, seeking damages under the FELA in connection with two separate accidents allegedly caused by Amtrak's negligence. Discovery in the case has since been completed and the parties have reached a settlement with respect to one of those accidents. A jury trial on Henderson's claims stemming from the second accident is set to begin on February 23, 2015.
According to the parties' pretrial submissions, Henderson intends to prove at trial that, on May 18, 2012, in the course of his duties as a signal foreman for Amtrak, he was struck by a train due to Amtrak's negligence in failing to (1) provide him with a reasonably safe place to work; (2) warn him of an approaching train; (3) provide him with adequate manpower; (4) properly safeguard the work site; (5) properly train its employees in on-track protection; (6) take adjacent tracks out of service; (7) comply with federal rail safety regulations pertaining to Roadway Worker Protection; (8) properly train watchmen at the worksite; (9) warn him of an unsafe condition; and (10) implement reasonable procedures and protocols. See Doc. 55 (Proposed Joint Pretrial Order) at 2. Henderson intends to prove these claims by offering, inter alia, expert testimony addressing whether Amtrak complied with industry standards of care, with its own internal safety rules, and with the rules of the Northeast Operating Rules Advisory Committee. See Doc. 52, App'x A (Expert Report).
In opposing Amtrak's motion, Henderson argues, inter alia, that, while the FRSA preempts state law claims covered by its regulations, it does not preclude federal claims under the FELA.
Enacted in 1908, the FELA provides railroad employees with a federal cause of action for injuries "resulting in whole or in part from the negligence" of the railroad. 45 U.S.C. § 51. "Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the human overhead of doing business from employees to their employers." Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (internal quotation marks omitted). Through the FELA, Congress sought to "d[o] away with several common-law tort defenses that had effectively barred recovery by injured workers." Id. Courts are required to "liberally construe[] FELA to further Congress' remedial goal." Id. at 543, 114 S.Ct. 2396; accord Kernan v. Am. Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958) ("[I]t is clear that the general congressional intent [behind the FELA] was to provide liberal recovery for injured workers, and it is also clear that Congress intended the creation of no static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry's duty toward its workers." (citation omitted)). Courts have held, for instance, that the FELA creates "a relaxed standard for negligence as well as causation." Williams v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir.1999) (internal quotation marks omitted). The question of what constitutes negligence under the FELA is a federal question governed by the provisions of the statute and federal common law. See Gottshall, 512 U.S. at 543, 114 S.Ct. 2396.
The FRSA was enacted in 1970 "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. The FRSA grants the Secretary of Transportation the authority to "prescribe regulations
In a section addressing the preemption of certain state laws, the FRSA provides that "[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable." 49 U.S.C. § 20106(a)(1). To maintain such uniformity, the FRSA contains an express preemption clause, pursuant to which "[a] State may adopt or continue in force a law, regulation, or order related to railroad safety ... until the Secretary of Transportation... prescribes a regulation or issues an order covering the subject matter of the State requirement." 49 U.S.C. § 20106(a)(2). The FRSA preempts covered state law tort claims, in addition to covered state statutes and regulations. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 670-71, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). An FRSA regulation covers and thus preempts a state law tort claim if it "substantially subsume[s] the subject matter" of that claim. Id. at 664, 113 S.Ct. 1732. The FRSA, however, does not preempt state law claims alleging that a party "has failed to comply with the Federal standard of care established by a regulation or order issued by the [FRA]" or "has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by" the FRA. 49 U.S.C. § 20106(b)(1).
The FRA regulations at issue in this case are set forth in Part 214, Subpart C, of the Code of Federal Regulations, which is entitled "Roadway Worker Protection." The purpose of this Subpart "is to prevent accidents and casualties caused by moving railroad cars, locomotives or roadway maintenance machines striking roadway workers or roadway maintenance machines." 49 C.F.R. § 214.301(a). In furtherance of this purpose, Subpart C "prescribes minimum safety standards for roadway workers," while expressly permitting "[e]ach railroad and railroad contractor [to] prescribe additional or more stringent operating rules, safety rules, and other special instructions that are consistent with this subpart." 49 C.F.R. § 214.301(b).
The most directly applicable provision within Subpart C of Part 214, entitled "Train approach warning provided by watchmen/lookouts," states as follows:
49 C.F.R. § 214.329.
As indicated, Amtrak essentially argues that, in light of the preclusive effect of the FRSA on Henderson's FELA claims, the above regulation provides the exclusive standard of care by which to evaluate its alleged negligence. Amtrak thus asserts that Henderson cannot, for instance, attempt to demonstrate that it was negligent in failing to take adjacent tracks out of service while he was working, as this issue is not addressed by the above roadway worker protection regulations.
As Amtrak readily acknowledges, the FRSA expressly preempts covered state laws only, and nothing in the statute directly addresses its effect, if any, on federal claims under the FELA. Indeed, "the preemption doctrine flows from the Constitution's Supremacy Clause," and thus "is inapplicable to a potential conflict between two federal statutes." Tufariello v. Long Island R.R. Co., 458 F.3d 80, 86 (2d Cir.2006). Furthermore, while the Supreme Court has recognized the existence of the related concept of preclusion of federal statutes, see POM Wonderful, 134 S.Ct. at 2236, it has never addressed whether the FRSA can preclude FELA claims, and the issue appears to be one of first impression in this Circuit.
In arguing that the FRSA precludes covered FELA claims, Amtrak principally relies on the decisions of the three Courts of Appeals that have reached such a conclusion. See Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426, 430 (6th Cir.2009); Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir.2001); Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir.2000). Two of these cases, Waymire and Lane, addressed whether an FRSA regulation establishing maximum train speeds precluded a FELA plaintiff's negligence claim premised on excessive
Lane, 241 F.3d at 443 (quotation marks omitted). In Nickels, relying heavily on Waymire and Lane, the Sixth Circuit reached the same conclusion for similar reasons with respect to the preclusion of FELA claims by an FRSA regulation governing the function of track ballast. See 560 F.3d at 430.
While many if not most lower courts have sided with the decisions above, case law on this issue is far from uniform. See generally Cowden v. BNSF Ry. Co., 690 F.3d 884, 891-92 (8th Cir.2012) (collecting cases both for and against the proposition that the FRSA precludes covered FELA claims). And while no other Court of Appeals has resolved this question, the Eighth Circuit has expressed doubts as to whether the FRSA can preclude federal claims under the FELA. Specifically, in Cowden v. BNSF Ry. Co., the Eighth Circuit noted that the FRSA was enacted in part "to address the patchwork effect of each state applying its own set of regulations," and that it was "not clear how negligence claims brought under the federal common law threaten the uniformity sought by the FRSA." Id. at 891 (emphasis added) (citing Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) ("What constitutes negligence for [the FELA's] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes."); Infermo v. New Jersey Transit Rail Operations, Inc., No. 10-2498(SRC), 2012 WL 209359, at *6 (D.N.J. Jan. 24, 2012) ("[T]he language of FRSA itself gives no indication that the express preemption clause crafted to address potentially varying and disparate state laws concerning standards for the operation and maintenance of the national rail system should, by implication, extend to subsume matters governed by FELA, which is concerned primarily with providing injured railroad employees a deliberately attainable remedy.")). Ultimately, however, the Eighth Circuit declined to resolve this issue and thereby create a circuit split, both because it had not been properly raised below and because the Court was not required to resolve it. Cowden, 690 F.3d at 892.
A different conclusion is not warranted by the FRSA's vague directive that "[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable." 49 U.S.C. § 20106(a)(1). This provision must be read in the context in which it appears: a section of the statute exclusively addressing the preemption of state law. See, e.g., Gottlieb v. Carnival Corp., 436 F.3d 335, 338 (2d Cir.2006) ("[W]hen determining the meaning of a statutory provision, the text should be placed in the context of the entire statutory structure." (internal quotation marks omitted)). Moreover, the FELA imposes a nationally uniform standard for determining whether a railroad should be held liable for injuries sustained by its employees. As the Supreme Court noted in Urie v. Thompson, "[w]hat constitutes negligence for [the FELA's] purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes." 337 U.S. at 174, 69 S.Ct. 1018.
It is true that, if the FRSA is read in accordance with the plain meaning of its text to preempt covered state laws only, "[t]he railroad could at one time be in compliance with federal railroad safety standards with respect to certain classes of plaintiffs yet be found negligent under the FELA with respect to other classes of plaintiffs for the very same conduct."
The Court respectfully disagrees with the Fifth Circuit's conclusion that imposing FELA's heightened standard of care in cases such as this one would render the FRSA's regulations "virtually meaningless." Lane, 241 F.3d at 443. The FRSA's regulations are simply to be treated like any other regulation in that complying with them may provide non-dispositive evidence of due care, see, e.g., Tufariello, 458 F.3d at 91 ("`Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.'") (quoting Restatement 2d of Torts § 288C (1965)), while violating them requires a finding of negligence per se, see Morant v. Long Island R.R., 66 F.3d 518, 523 (2d Cir.1995) ("It is well-settled that the FELA requires a finding of negligence per se when there has been a violation of a safety statute specifically aimed at the railroad industry." (internal quotation marks omitted)). Indeed, whereas the FRSA regulations at issue in this case are intended to "prescribe[] minimum safety standards for roadway workers," 49 C.F.R. § 214.301(b), railroads are held to a more than merely minimal standard of care under the FELA, see, e.g., Kernan v. Am. Dredging Co., 355 U.S. 426, 438-39, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958) ("[T]he theory of the FELA is that where the employer's conduct falls short of the high standard required of him by this Act, and his fault, in whole or in part, causes injury, liability ensues."). If Congress had intended that the FRSA both preclude covered FELA claims and preempt covered state law claims, it would have said so. Cf. Crane v. Cedar Rapids & Iowa City Ry. Co., 395 U.S. 164, 167, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969) ("We recognize the injustice of denying recovery to a nonemployee which [under the FELA] would not be denied to an employee performing the same task in the same manner as did petitioner. But it is for Congress to amend the statute to prevent
Supreme Court precedent strongly supports the conclusion that the FRSA should not be read to preclude covered FELA claims. In Urie v. Thompson, the Supreme Court considered a FELA claim premised on negligence arising from conduct of a railroad that allegedly violated the Boiler Inspection Act ("BIA"), 45 U.S.C. § 23 et seq., and that allegedly caused the plaintiff to contract an occupational disease. See 337 U.S. 163, 167, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). After a jury found in favor of the plaintiff, the Missouri Supreme Court reversed the jury's verdict, holding that the BIA was "aimed at promoting safety from accidental injury, as distinguished from injury due to the gradual inhalation of harmful dusts." Id. at 168, 69 S.Ct. 1018 (internal quotation marks omitted). The Supreme Court reversed, commencing its discussion by emphasizing the comprehensiveness of the FELA's text:
Id. at 181-82, 69 S.Ct. 1018.
The Court proceeded to hold that the BIA, together with the Safety Appliance Act ("SAA"), 45 U.S.C. § 1 et seq., "supplement[ ]" the FELA, "having the purpose and effect of facilitating employee recovery, not of restricting such recovery or making it impossible." Id. at 189, 69 S.Ct. 1018. The BIA and SAA pose no obstacle to FELA recovery, the Court reasoned, since, "[i]n the absence of any specific showing that Congress had in mind such a restrictive and inconsistent object, [the Court is] not free to create one by inference." Id. at 190, 69 S.Ct. 1018; see also id. at 186, 69 S.Ct. 1018 (indicating that FELA's broad scope should not be "cut[] down ... by inference or implication"), at 182 n. 20, 69 S.Ct. 1018 ("The [FELA] is not to be narrowed by refined reasoning. It is to be construed liberally to fulfill the purposes for which it was enacted." (internal quotation marks omitted)). The Court emphasized that it would be "highly incongruous" to construe a statute "expediting employee recovery" under the FELA as "contracting the scope of compensable injuries and to that extent defeating recovery altogether." Id. at 190, 69 S.Ct. 1018.
Nearly four decades later, the Supreme Court again considered the interaction between the FELA and another federal law in Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). The plaintiff in Buell brought a FELA action alleging that his fellow employees had harassed him to the extent that he was denied a safe place to work. Id. at 559, 107 S.Ct. 1410. The district court held that the plaintiff's FELA claims were precluded by the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., which "provides a comprehensive framework for the resolution of labor disputes in the railroad industry." Id. at 560-62, 107 S.Ct. 1410. The Supreme Court disagreed, holding that the RLA had no preclusive effect. Id. at 564, 107 S.Ct. 1410.
Finally, were there any lingering doubts as to how the Supreme Court would resolve this issue, those doubts are eliminated by the Supreme Court's recent decision in POM Wonderful LLC v. Coca-Cola Co., ___ U.S. ___, 134 S.Ct. 2228, 189 L.Ed.2d 141 (2014). There, POM Wonderful LLC ("POM") sued the Coca-Cola Company under the false-advertising provision of the Lanham Act, 15 U.S.C. § 1125(a), alleging that Coca-Cola had deceptively used the term "pomegranate blueberry" on the label of one of its products. 134 S.Ct. at 2235. In granting partial summary judgment in favor of Coca-Cola, the district court held that POM's Lanham Act claim was precluded by regulations promulgated pursuant to the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq. Id. at 2235-36. The FDCA prohibits the misbranding of food and drink and authorizes the Food and Drug Administration ("FDA") to promulgate regulations regarding food and drink labeling, including the labeling of mixes of different types of juice into one juice blend. Id. at 2234 (citing 21 U.S.C. §§ 321, 331). The FDCA contains a provision preempting certain state laws on misbranding. Id. at 2235 (citing 21 U.S.C. § 343-1(a)). The Ninth Circuit affirmed the district court's decision that POM's Lanham Act claims were precluded by the FDCA. Id. at 2236.
In a unanimous decision, the Supreme Court reversed. Characterizing the case as one involving statutory interpretation, the Court noted that neither the Lanham Act nor the FDCA expressly precluded Lanham Act claims challenging labels regulated by the FDCA. Id. at 2237. In addressing the FDCA's state law preemption provision, the Court stated as follows:
Id. at 2238 (citation omitted). Furthermore, according to the Court "[t]he structures of the FDCA and the Lanham Act reinforce the conclusion drawn from the text." Id. The Court explained that "[t]he Lanham Act and the FDCA complement each other in major respects, for each has its own scope and purpose," and that, "[w]hen two statutes complement each other, it would show disregard for the congressional design to hold that Congress nonetheless intended one federal statute to preclude the operation of the other." Id.
In support of upholding the Ninth Circuit's decision, Coca-Cola argued that "the FDCA precludes POM's Lanham Act
Id. at 2239-40 (citations omitted).
Similarly, the Court rejected the Government's argument as amicus curiae that Lanham Act claims were precluded "to the extent the FDCA or FDA regulations specifically require or authorize the challenged aspects of [the] label," id. at 2240, reasoning as follows:
Id. at 2241 (citations omitted).
Although Henderson has not cited POM Wonderful and the case involved two different statutes, the Court finds its reasoning highly instructive in interpreting the relationship between the FELA and the FRSA. Like the FDCA, the FRSA authorizes an agency to promulgate specific regulations in furtherance of the statute's purpose and provides that those regulations preempt certain state laws in the interest
In sum, in accordance with the Supreme Court's instructions that the FELA's broad scope should not limited by inference, see Urie, 337 U.S. at 186, 190, 69 S.Ct. 1018, and that "[p]re-emption of some state requirements does not suggest an intent to preclude federal claims," POM Wonderful, 134 S.Ct. at 2238-39, the Court holds that the FRSA and its regulations do not preclude any aspect of Henderson's FELA claims. "Although the application of a federal statute ... by judges and juries in courts throughout the country may give rise to some variation in outcome, this is the means Congress chose to enforce a national policy" — in this case, to provide liberal recovery for injured railroad workers. Id. at 2239. "It is quite different from the disuniformity that would arise from the multitude of state laws, state regulations, state administrative agency rulings, and state-court decisions that are partially forbidden by [a statutory] pre-emption provision." Id. at 2239-40. This analysis holds true here too with respect to the FRSA's preemption provision, which is expressly limited to the preemption of state law. "Congress not infrequently permits a certain amount of variability by authorizing a federal cause of action even in areas of law where national uniformity is important." Id. at 2240.
For the foregoing reasons, Amtrak's request that the Court preclude Henderson from offering evidence or argument at trial relevant to conduct that does not establish a violation of an FRSA regulation is denied.
SO ORDERED.
