Kevin Cowden v. BNSF Railway Company
690 F.3d 884
8th Cir.2012Background
- Cowden, a locomotive conductor for BNSF, was injured on a mile-marker stretch of track while operating a train under a self-imposed slow order.
- The slow order reduced speed from 60 mph to 40 mph due to track conditions, and the train was traveling below 40 mph at the time of injury.
- BNSF’s track-maintenance records show multiple historical slow orders tied to “tie conditions,” rough track, ballast disturbance, and washouts, with no tie replacement through January 2008.
- Cowden alleges BNSF failed to maintain a reasonably safe workplace by not addressing the defective track, relying on maintenance records and expert testimony.
- The district court granted summary judgment for BNSF, holding FRSA regulations supplied the sole duty of care, and limited expert testimony accordingly.
- The court later remanded portions of the case and held specific FRSA preemption issues were not properly developed or decided.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FRSA preemption precludes FELA negligence claims when regulations substantially subsume the claim. | Cowden argues preemption is inappropriate or not properly established. | BNSF argues FRSA regulations substantially subsume the claim, precluding FELA negligence. | Remand; preemption not properly decided on the record. |
| Whether the district court erred by granting summary judgment on a ground not raised by the parties and by failing to develop the FRSA-regulation record. | Cowden asserts lack of notice and record development. | BNSF did not raise FRSA preemption in the motion. | Remand for full briefing and development of FRSA issues. |
| Whether the district court abused its discretion in excluding parts of Blackwell’s testimony and in the Rule 407 remedial-measures issue. | Cowden argues proper scope of expert testimony and Rule 407 exceptions. | BNSF contends limits were appropriate under FRSA preemption and Rule 407. | Reversed in part; remand for reconsideration of expert testimony; affirmed exclusion regarding remedial measures. |
Key Cases Cited
- Easterwood v. CSX Transp., Inc., 507 U.S. 658 (1993) (preemption when FRSA regulation substantially subsumes state negligence claim)
- Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773 (7th Cir. 2000) (FRSA speed regulations preempt certain FELA claims)
- Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439 (5th Cir. 2001) (uniformity; FRSA limits on speeds preempt negligent-speed claims under FELA)
- Nickels v. Grand Trunk Western R.R., Inc., 560 F.3d 426 (6th Cir. 2009) (FRSA preemption when regulations substantially subsume a negligence claim)
- Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108 (1963) (foreseeability standard under FELA broader than strict common-law foreseeability)
- Urie v. Thompson, 337 U.S. 163 (1949) (federal question of negligence under FELA; broader standard)