Willard Rushing and Patricia Rushing v. Kansas City Southern Railway Company

Ann and Patricia R. Willard RUSHING Plaintiffs-Appellants,

Rushing, RAILWAY SOUTHERN

KANSAS CITY

COMPANY, Defendant-Appellee. 98-60590.

No. Appeals, States Court

United

Fifth Circuit.

Aug. and vibration various noise

sively, produce and vi- the noise Specifically, emissions. (1) colliding to- come from cars brations (3) (2) motion, rail cars couple, gether (4) locomotives, and stationary passing MS, Prewitt, for Ridgeland, Thomas W. whistles.1 locomotive Plaintiffs-Appellants. project, KCS switchyard part of the As Ross, Michael Chad Edwin Charles berm, with an topped earthen large built a Carter, Caraway, Wise, & Child Knight, barrier, mitigate the acoustical Jackson, MS, Defendant-Appellee. for area might disturb noise emissions allege residents. noise and has failed to eliminate berm After vibrations. stop nothing does switchyard, using the began symp- “physical experienced claim to have KING, and SMITH Judge, Chief Before etc., health, toms, deteriorating anxiety, BARKSDALE, Judges. Circuit vibration, ex- the constant resulting from noise, shocks and violent ceedingly high SMITH, Judge: Circuit JERRY E. The shocks yard.” the rail coming from appeal the Rushing Patricia Willard and caused allegedly have vibrations also brought action nuisance their dismissal of crack. home to shift and their Railway City Southern against Kansas (“KCS”). Concluding Company II. over-expansive view court took district gen- and overlooked preemption of federal suit state Rushings sued entering material fact court, uine issues claim alleging a common law KCS, reverse we summary judgment nuisance.2 private switchyard was proceedings. further on the basis and remand to federal KCS removed an amended diversity In jurisdiction. answer, de pleaded I. the affirmative preemption. fense of summary judgment According disclosure, pre-discovery In its initial their record, Rushings purchased the Dr. Seide- Michael indicated line” railroad KCS “main KCS’s along home expect- audiologist, an industrial only a cou- mann was by track, passed trains where measurements, tak- testify 1996, however, on sound ed In day. each ple times in the possibly in and the about en both switching yard past located KCS built a switchyard, to future, the levels at of noise Rushings’ property. from the fifty-five feet origi- emissions the sound establish that successful part vital KCS’s yard, The complied with federal yard in attaching nating the as a operations, serves “hub” pursuant promulgated regulations them position rail cars to detaching and (“NCA”), 42 U.S.C. Act Noise Control sites around travel to various sequence to seq. § 4901 et regulations promulgat- The switching op- the country. Allegedly, the NCA, at 40 C.F.R. codified under exces- ed the necessarily, perhaps and erations whistles, allege negligence, it is by failing claim longer use though trains no 1. Even ''whistles,” See, Niagara e.g., parties, do the McFarlane as mistaken. we use the term (1928) Falls, warn- and audible air horns other 160 N.E. to refer to ing 247 N.Y. J.) ("Nuisance (Cardozo, concept of law devices. as primary meanings than one. The has more brief, Rushings claim their In neg- the element meaning not involve does correctly points allege negligence. KCS also factors.”). ligence of its essential as one If, however, KCS im- they do not. out that Rushings state a nuisance fail plies that

5Q3 (4) § 201.1 seq., et set maximum decibel and passing locomotives. He concluded (“dB”) operations pro- levels for train and the noise emissions fell within the procedures vide the conducting follow in decibel limits by established reg- NCA testing sound-level to establish NCA com- ulations. pliance. In response, the Rushings filed a docu- Rushings’ objection, Over the magis- ment entitled “Material Facts Issue.” judge trate granted KCS’s motion to allow They claimed disputes factual existed re- Seidemann to sound measure levels on the lated to qualifications Seidemann’s to make Rushings’ property, to determine whether the “assertions” affidavit, contained in his they complied with federal regulations tested, conditions under which he and central to the preemption defense. Seide- his conclusion that the noise and vibrations mann conducted his tests in conformity fell within the NCA’s limits. with regulations during one evening, evidence, As submitted in the Rushings’ presence. timely only affidavits executed them which designated expert Seidemann as an wit- they both claimed that the noise levels and ness and served the Rushings copy with a activity on night Seidemann took his “Expert of his Report” pursuant Witness measurements were much lower than nor- 26(a)(2)(B). to Fed. R. Civ. P. report They mal. also attested that the trains conducted, detailed testing the meth- operated in a different manner than usual employed, ods results. that night, such as not getting running KCS moved for partial summary judg- starts and not coupling multiple ears at the ment on the claims for excessive noise and addition, same time. In they claimed that

vibrations. It asserted that the NCA usually trains sounded their whistles preempted the noise claim stemming from excessively, and apparent often no rail car coupling activity, that the Federal purpose. Safety (“FRSA”), Rail Act of 1970 later, U.S.C. Twelve and seq., days 20101 et preempted respec- fourteen claim that, tively, based on without blowing; seeking whistle or securing the per law, Mississippi permission, tort court’s the noise and “supple- KCS filed two complaints vibrations were not ments” to its summary judgment actionable motion. private under a theory, nuisance The first copy because contained a of Seidemann’s operation switching yard is a R. Civ. P. 26 that it report previously Fed. public function. had sent to the Rushings. Accompanying report was Seidemann’s curriculum supported the NCA preemption (“CV”). vitae included anoth- second claim Seidemann, with an affidavit from copy er of his CV affidavit in which describing himself “a forensic audiolo- emphasized Seidemann qualifications. his gist, in audiology by licensed Mississip- KCS refers to these submissions as rebut- pi Council of in Speech Pathology Advisors tal evidence. and Audiology.” affidavit also The attest- ed that Seidemann had conducted his tests later, A month Rushings the moved to points from on the Rushings’ property supplement their response with an affida- with prescribed the equipment, properly vit from an employee Employment of calibrated to ensure accuracy. (“EHS”), Health Services a company with expertise noise,

Seidemann in environmental explain- conducted his tests in two- hour ing shifts and the a results of their own measured minimum of tests. EHS thirty car couplings shift, during each measured sound levels as inside the house at required by regulations. the weighted 105dB, The affidavit a sound level of easily explained that he tested noise exceeding permitted emissions the 92dB by the NCA (1) (2) originating motion, from cars in regulations rail coupling for activities. See 40 (3) car couplings, stationary locomotives, C.F.R. 201.15.

504 reconsideration Rushings moved Rushings The the that explained

The motion offering deposi- summary judgment, the testing was of and the wealthy, not were that neighbors their they testimony from tion “It was not until expensive. rather the just days before that relied had obtained position KCS Railroad’s the read had not they They posited that ruling. that did measurements upon Seidemann’s depo- prior to the the affiants in which the conditions interviewed comport with disclo- in their they included them that but lived, they decided sitions that they everyone they listed because employ simply some- money to sure spend would the the situa- knowledge have might of who measurements similar perform one under conditions tion. that exist levels the noise they actual- in which those consistent reconsideration, because opposed sup- that motion indicated

ly lived.” The “newly discov- present did not the motion and that be filed could porting affidavits agreed and also The court evidence.” ered delay the supplementation the exclusion to reconsider its refused away. days one hundred that was trial over referring again to testimony, EHS’s motion, that the arguing opposed the witness. designate timely to failure that the untimely was supplementation mere- that the motion concluded The court designate expert had failed to summary judg- the merits ly reargued time. the ordered within witness for a motion ment, inappropriate is which to reconsider. motion granted court The on its judgment based summary partial III. defenses, reasoning that

affirmative insofar nuisance claim preempts summary judgment review We on noise related is based as novo, as standards the same applying de activities, relying on Seide- switching v. See Webb Cardiotho court. district attesting mann’s affidavit P.A., Associates, F.3d 139 Surgery racic applica- fell within the levels he measured Int’l, (5th Cir.1998); 532, Inc. Figgie 536 also máximums. The court regulatory ble Cir.1994). (5th Bailey, 25 F.3d claim preempts the NCA held that if the appropriate is Summary judgment vibrations, there is because related to there is “show[s] on record evidence between vibrations correlation direct fact any material issue as genuine no noise, they stem from and the is entitled moving party and that activities. coupling regulated same source— Fed. R. Civ. as a matter of law.” judgment occupy might the FRSA noting After 56(c). admissibility of evidence P. warning devices and the field of locomotive and rules subject to the same standards found safety regulation, railroad admissibility of evidence govern nuisance based claim preempted that it Drilling & Donaghey v. Ocean trial. See the trains whistling because excessive n. Co., Exploration F.2d safety” “in the interest whistled (5th Cir.1992); Niagara Lavespere v. crossing before grade approached Works, Inc., F.2d & Tool Mach. court re- Finally, the moving backwards. Cir.1990). 175-76 Rushings’ motion grant fused to ini moving party bears response with EHS’s their supplement an absence of demonstrating tial timely burden they had failed findings, because case. the nonmovant’s supporting had moved evidence expert and not designate their 317, Catrett, 477 U.S. Corp. v. time.3 See Celotex designate out of for leave to argu- made the had noted that KCS "held that the court the court also that 3. KCS asserts its second again it in switching operations conducted and referenced ment result, and, order, are merits. public as a issue’s in the interest never addressed the it Although prosecution.” privileged civil from 505 325, 2548, (1986). 106 S.Ct. 91 L.Ed.2d 265 the evidentiary rulings, the Rushings have When the burden of establishing the issue genuine demonstrated a issue of material at trial nonmovant, is on the the movant fact on the nuisance claim as it relates to accomplishes merely by pointing out noise. the absence of evidence sup- record The Rushings also find error in the porting the 323-24, issue. Id. at 106 S.Ct. court’s conclusions that the NCA preempts 2548. Although we consider the evidence their shock and vibration claim and that no and all reasonable inferences to be drawn genuine issue of material fact exists re- therefrom in light most favorable to garding the defense that the FRSA nonmovant, the nonmoving party may preempts their excessive whistle blowing not rest on the mere allegations or denials KCS, claim. in addition to disputing the of its pleadings, but must respond by set- alleged errors, avers that we can affirm

ting specific forth facts indicating genu- summary judgment on ground that ine Webb, issue trial. See 139 F.3d at Mississippi tort law does not pri- allow a 536; Figgie, 25 F.3d at 1269-70. vate nuisance against suit a railroad acting

KCS does dispute not in a public capacity. We reverse and allow claim; state a rather, nuisance it the suit go forward insofar as the nui- asserts affirmative defenses that entitle claim sance relies on vibrations and exces- judgment as a matter of law notwith sive whistle blowing. KCS’s Mississippi standing the Rushings’ prima claim. tort argument law erroneously interprets facie course, Of summary judgment may be caselaw; state’s reject we it. granted on But, this basis. because KCS bears the ultimate burden of persuasion on A. its affirmative defenses, it must adduce The Rushings contend that the court to support evidence each element of its should have excluded Seidemann’s affida- defenses and demonstrate the lack any vit, alleging that he does meet genuine issue of material regard fact with requirements for admissibility of Fed. R. thereto. See Corp. Exxon v. Oxxford expert 702 testimony.5 Absent the Evid. Clothes, Inc., 1070, (5th 109 F.3d affidavit, KCS lacks summary judgment - Cir.), denied, cert. U.S. -, 118 S.Ct. evidence to establish its de- affirmative 299, 139 (1997).4 L.Ed.2d 231 fense compliance with the regula- tions. We conclude the court did err.

IV. In addition to claiming that genuine 1. issue of material fact exists regarding the preemption stands, defense as the record We reverse the admission of ex the Rushings contest evidentiary rulings pert testimony only for abuse of discretion. that would alter summary judgment Lion, See Inc., Black v. Food 308, 171 F.3d record in their Although (5th favor. we Cir.1999); affirm 310 v. Moore Ashland Inc., See also Liberty - Lobby, Anderson asserted.”), denied, mative defense cert. 242, 252, 2505, U.S. 106 S.Ct. 91 L.Ed.2d -, U.S. 118 S.Ct. 139 L.Ed.2d 230 (1986) (holding party bearing burden (1997); Buttry v. Signal General Corp., 68 persuasion must set forth sufficient factual (2d Cir.1995). F.3d support material determination that bur persuasion satisfied); den of has been accord scientific, 5. "If technical specialized or other Pfeil, Hutchinson v. knowledge will assist the trier of fact to un- Cir.) ("A defendant use a motion for derstand the evidence or to determine a fact summary judgment to test an affirmative de issue, qualified a witness expert by fense which party judgment entitles to a skill, knowledge, experience, training, edu- aas matter of law. The making defendant may testify cation thereto of an form such a motion must demonstrate no dis opinion or otherwise.” Fed. R. Evid puted material regarding fact exists the affir-

506 Inc., 269, (5th when we find an error that is clear and Chem. 151 F.3d 274 Cir. law, 1998) (en banc), denied, U.S. -, obvious under current that affects the cert. - rights, 1454, defendant's substantial and that 119 S.Ct. 143 L.Ed.2d 541 seriously fairness, integri (1999). object expert would affect the Failure to to testi ty public reputation judicial proceed mony objection, precluding or forfeits the full ings Marceaux, appeal. if left uncorrected. See review on See Marceaux v. Cono 734; co, Inc., 730, (5th Cir.1997). 124 F.3d at United States v. Calver 124 F.3d 733 ley, 160, (5th Cir.1994) (en applies equally 37 F.3d 162-63 This rule to evidence of banc). support oppose summary judg fered to Donaghey, 3; ment. See 974 F.2d at 650 n. 2. Dep't Williamson v. United States Agric., 368, (5th Cir.1987). In Daubert v. Merrell Dow 815 F.2d If Pharmaceuticals, Inc., 579, objection forfeited, 509 U.S. is we review for (1993), plain S.Ct. 125 L.Ed.2d 469 error.6 Court instructed district courts to function proper method of attack gatekeepers, only to ensure that reliable ing the evidence is a motion to strike expert testimony presented and relevant specific objections. that contains See 11 jury. 590-93, to the See id. at 113 S.Ct. al., James W. Moore et Moore's Federal determining reliability, 2786.9 In courts 56.14[4][a], (3d § Practice at 56-197 approach follow a flexible in which ed.1999). did not move to examine factors such as whether the tech strike, merely but raised unsubstantiated nique (and been) tested, can be has wheth regarding expert's qualificat fact issues subjected peer er it has been to review and Questioning expert's qualifica ions.7 an publication, whether there is a known or preserve error, tions at trial does not potential error, rate of and whether the party even when the earlier raised an ob community generally relevant scientific ac jection limine; in a motion in it consti cepts technique. bert, See Dau expert's credibility, tutes an attack on the 593-94, 2786; Kumho, U.S. at 113 S.Ct. objection admissibility not an under rule -, - U.S. at 119 S.Ct. at 1175. Each Marceaux, 702. See 124 F.3d at 734. If may may of these factors not be rele questioning expert's qualifications can particular inquiry. id.; vant See objection, not constitute reiteration of an Black, 171 F.3d at 311. then, fortiori, objection.8 it cannot be an a. result, plain As a we review for plainly The court did not err in error. We exercise our discretion to admitting plain only Seidemann's affidavit. The reverse under error review permissible Marceaux, 734; Snyder shockwaves-are within the its of the Noise ControlAct or are within its lim- 6. See 124 F.3d at Corp., (5th Whittaker 839 F.2d scope?" Cir.1988); al., intended 11 JamesW. Mooreet Moore's 56.14[4][b], (3d Federal Practice at 56-199 1999) (explaining Meyer, ed. that absent motion to 8. Cf.FDICv. specific objection testimony, 1986)(refusing "response" strike with Cir. to treat as mo oniy plain error); tion to strike where it failedto alert the court COurtwillreview Fed.R. 103(d)(stating object alleged opposition's Evid. that failure to deficienciesin affida vit). preclude noticingplain evidencedoes not er ror). Although Daubert addressed traditional They queried, qualified evidence, apply "Is Dr. Seidemann "scientific" courts should experts, including to makethe assertionscontainedin his affida- same rule to all rule 702 those opinionprovide relying specialized vit?" "Did Dr. Seidemann's on technicalor other legitimate knowledge. the basis for a noise and the other effectsthe larly experience-excessive assertion that the SeeKumhoTireCo.v. Carmicha el, -, 1167, 1174-75, Rushingsregu- - U.S. 119 S.Ct. (1999). 143L.Ed.2d238 vibration and

507 attempt first to cast on the First, doubt the “emphasis qualifica reliability testing of the method that Seide- tions over reliability of the expert testimo used, mann pointing out that the ny court did pre-Daubert reflects] sensibility.” findings make such acceptance as the Telsmith, Inc., Watkins v. of the technique and potential its Cir.1997). rate of 992 course, Of qualifica however, error. As responds, tions remain important; rule requires explains affidavit that Seidemann precisely qualified expert. A completely unquali techniques followed the reg- fied expert using the most reliable of tests provide ulations must used be deter- should be testify. allowed to But the mine regulatory compliance. heart of Daubert is relevance and reliabili ty. long As as some reasonable indication applicable law mandates the When of qualifications adduced, is the court may test, use of a particular the proponent of admit the evidence without abdicating its the test’s results should not have to estab gate-keeping that, function. After qualifi lish reliability. its if Even the opponent cations become an issue for the trier of prove unreliable, could is it would fact rather than for the court in gate- its be unfair proponent to exclude his keeping capacity.10 expert evidence based on the mandated More importantly, the record reveals Rather, technique. reliability its irrebutt- that Seidemann is qualified to administer ably should presumed. Any other rule the tests and testify regarding their re place the testimony’s proponent in sults. His affidavit explains in detail how position untenable being unable to he prescribed followed the technique. He prove compliance applicable with law be licensed audiology by Mississippi and cause he could not introduce the results several other He states. holds both a the test mandated that same law. Masters field, and Ph.D. in the and has It would be fair to challenge Seide- experience extensive both teaching and compliance mann’s test; with the mandated practicing. He has sat on and served as is, to challenge whether he followed chairman of numerous committees related the regulatory technique. If he failed to to audiology. published He has extensive with comply that technique, at Seidemann ly, including in forensic and occupational very least would have to establish the audiology. He twenty-nine has years of reliability of his alternative technique; experience in conducting sound level mea likely, more the evidence would fail as a surements industry and in communities. matter of law to compliance establish with Finally, expert testimony his has been ad regulations. those But the record does mitted numerous other- courts. Al not reveal that the Rushings have raised a though he may have limited hands-on ex genuine fact issue regarding Seidemann’s perience with the precise measurements compliance with the technique. took, he the court plainly did not err in accepting testimony his in light primary these issue the Rushings raised Lavespere, credentials. in the district 910 F.2d at emphasize in their Cf. 176-77 (finding no abuse brief is discretion on qualifications Seidemann’s to con- facts). similar duct outdoor sound measurements under the NCA. They emphasize that Seidemann b.

attested to experience little in conducting outdoor environmental measurements of The Rushings point out that the railroad sounds. We find argument initial affidavit filed the summary unpersuasive. judgment motion did not include Seide- Daubert, 10. See U.S. S.Ct. lion proof on the burden of are the traditional ("Vigorous cross-examination, presenta- appropriate attacking means of shaky but evidence, of contrary tion and careful evidence.”). instruc- admissible re- summary judgment their plement evidence relevant only The mann’s CV. own their ex- of affidavit the with sponse affida- in that initial forth sets Seidemann readings decibel EHS, revealing from audiologist and pert licensed he is a is that vit of the in excess well Rushings’ home the measurements at his conducted he that the opposed máximums. KCS regulations. the NCA regulatory with accordance not des- Rushings should had the court that the aver Rushings motion because The affi- time estab- supplemental the the within expert considered the ignated have not court’s Management the filed without were Case by court’s davits lished Seidemann’s denied the to substantiate court district permission The Order. Plan Rushings had only after ex- of the qualifications designation because motion issue. attempted was raised untimely and was pert of out designate court to of leave the without to strike not move Rushings did The dif- This failure time. affidavits. supplemental to strike failure from slightly

fers above, but the affidavit, discussed expert 1. review. our affects significantly difference the trial endow Rules affi- “The expert Civil objection Rushings’ case-management ex- As formidable objection. judge with evidentiary is an davit Gonzalez, 140 v. objection or timely above, authority.” Rosario-Diaz a absent plained Cir.1998). (1st Part of the evidentia- strike, 312, forfeits party 315 to F.3d motion establishing evi- a case-man summary judgment authority to includes objections ry therefore, only for review, as enters court will that the dence. We schedule agement 16(b); P. R. plain error. Uni order. See an Fed. Civ. Miss., Rule D. U.S. Rules Dist. Ct. form ob however, Rushings Here, designat must be 6(d). witnesses Expert on the affidavits supplemental ject to the See that schedule. with in accordance ed with comply failed to ground U.S. Rules Ct. 6(g); rule Dist. id. Uniform the admission governing rules procedural Delay Expense Reduction D. Miss. argument’s Specifically, evidence. of to fails 4(I)(A)(4). who party A plan, § R. of interpretation our Fed. rests merit sched disclosure ordered comply with make A failure to 56. P. 6 Civ. is harm failure not, such unless “shall error, ule .pre objection waives procedural aat as evidence to less, use permitted Rush- Because review.11 cluding our any on a motion hearing, or trial, aat affidavits’ to objection any ings waived so disclosed.” al information review witness untimeliness, may we Indeed, party who 4(I)(A)(5). id. See leged error. deadline case-management any ignores B. R. See peril. his Fed. Civ. so at own does under 16(f) (authorizing sanctions Fed. P. argue that next 37(b)(2) noncompliance).12 R. Civ. P. sup- to motion their it denied when erred 446, Com'n, F.2d 360 Commerce (find v. Interstate n. 3 at 650 F.2d Donaghey, 974 See that, Cir.1966) (holding (5th absent admissibility of 448-49 to objections ing procedural strike, non-com- by affidavit's timely fail to waived summary judgment evidence motion waived); court); see McCloud rules procedural challenge in district pliance to ure Inc., Prods., (discussing dif- Forest River 162 v. Sabine Calverley, River R.R. F.3d 37 also Cir.1984) (holding 879, (5th forfeiture). 882 735 F.2d waiver ference between raise untimeliness right to waived party object or failing to supplemental affidavit Louisiana, F.2d v. also John See court); v. Hicks in district strike move to Cir.1990) sanctions (upholding (5th 1448-49 Cir.1979) (5th Harris, 68 n. 16(f)); Geiserman P. R. Civ. under Fed. MacDonald, to objection procedural (refusing review Cir.1990) F.2d appeal, time on the first raised for affidavit pursuant rule striking expert (upholding district in the to strike a motion without designation). 16(f) untimely Hialeah, Inc. court); Drive-Away Co. Auto We review a court s case-man witness, research the review the material agement decisions, including and, whether in response, probably conduct more impose sanctions for violations of a sched course, measurements. Of prejudice uling rules, order and local and the choice have could been ameliorated by a continu- sanction, such permit refusing ance; but delaying rulings or trial never is untimely designated expert witness to tes ideal.13 More importantly, the court decid- tify, for abuse of discretion. See Sierra ed strike to the testimony aas sanction for Co., Club v. Cedar 546, Point Oil 73 F.3d failing to designate the expert; in such a (5th Cir.1996); 572 Geiserman, case, 893 F.2d at prejudice is not a strict requirement, 790. willWe not disturb “a trial court’s and a continuance would have failed to decision to exclude evidence as a of means sanction the Rushings.14 enforcing pretrial a order ... absent a Finally, the Rushings do not offer a clear abuse of discretion.” Id. In assess persuasive justification for failing to desig- ing whether a court discretion, abused its nate their expert witness within the or- we examine four factors: importance dered time or to move to designate out of of the witness’s testimony; prejudice time earlier their than attempt to submit to the opposing party allowing of the wit expert affidavit. They argue they testify; ness to the possibility curing of did not need an expert for their case-in- such prejudice by continuance; granting a chief; they had no use for one until KCS explanation, if any, for the party’s had relied on expert report its to support comply failure to with discovery order. summary judgment, and even then did not Club, See Sierra 572; 73 F.3d at Geiser the report’s know importance until KCS man, F.2d at 791. tried to make it reliable with the supple- mental affidavits. They treated Seide-

2. mann as a fact witness until the supple- The district court did not abuse its ments established expert his qualifications. discretion. importance of the witness Yet, over six months before the Rush- to the Rushings’ case is undeniable. Al ings sought to introduce expert tes- though not necessary for their case-in- timony, KCS amended its answer affir- chief, expert an prove would invaluable matively to plead the preemption NCA rebutting KCS’s attempt to establish its Eight defense. months before the Rush- preemption affirmative defense. This im acted, ings sought permission to portance, however, “cannot singularly take measurements on their property for override enforcement of local rules and the express purpose of supporting scheduling Id. at orders.” 792. defense; and ten months before the Furthermore, it would prejudiced have Rushings now claim knew they KCS, because it have would needed to time needed an expert, initially disclosed Although we disclosures, face this summary issue in a a such measure would neither judgment posture, designation expert of an is punish [the nor offender] deter similar behav just not summary judgment purposes; future.”) omitted); ior (quotation in the Chil trial, applies to well. potential as The trial, effects States, v. cutt United 1324 n. 30 designation therefore, of late 1993) ("While Cir. perhaps relevant to the analysis. to relevant our Rushings aver type imposed, of party sanction need not that the trial would not been delayed, have always prejudiced by be opponent’s its discov but the possibility summary remains. The ery prior imposition abuses of sanc judgment ruling certainly would have been all, goal After tions. sanctioning is delayed, and that would have increased the complying party, reward the but punish trial, too, likelihood that the post- would be infracting party and to deter others who poned. engage behavior.”); be want to in similar John, Club, 899 F.2d at ("While (holding 1448-49 See Sierra prejudice 73 F.3d at 573 strictly required). given continuance would have the [non-of- fending party] more time to review the late governed subject traditionally taining to tes- would expert who Seidemann pre find law will be reluctant at state levels sound regarding tify 1732. The S.Ct. did Id. emption.” no time At switching yard. an area regulates that it desig- recognizes move designate, Rushings re “primary concern: state time, expert. of traditional their out of nate noise rests control sponsibility early indications these light In ” governments.... and local State in KCS’s used testimony expert 4901(a)(3). common And state U.S.C. justify wait- cannot defense, We governs nuisances. traditionally law was relied actually until the evidence ing therefore, if it only preemption, find will expert, even own their designate on to Congress. intent manifest clear and need to had no may have though they 663, 113 507 U.S. at Transp., See CSX expert evidence gather even introduce Davis, F.3d 1732; Davis S.Ct. within its acted court then. before (en banc), Cir.1999) petition for discretion.15 98-2008). (No. 1999) (June 15, cert. filed C. an ex provides Congress When the district Rushings aver we must focus provision, preemption press summary partial granting erred court CSX the clause. wording of plain on the preemption NCA on the judgment based 113 S.Ct. at U.S. Transp., 507 The regu- to noise.16 relates as it defense pro provision preemption express NCA’s seq., § 201 et lations, at 40 C.F.R. found vides, locomo- for emissions noise maximum set regulation of a date the effective [A]fter moving stationary and both under tives to noise applicable section under this and for operations, conditions, rail car for may ... ..., adopt no State emissions an for provides 201.15 Section couplings. to applicable any standard enforce or weighted maximum averaged adjusted, oper- resulting from emissions any at measurement 92dB level of sound such unless equipment of same ation prop- commercial on residential location ... to a standard identical standard from railroad sounds receives erty that this under any regulation by prescribed determine must We operations. section. regulations. of reach these preemptive 4916(c)(1). § 42 U.S.C. conflicts [law] a state “Where decidedly narrow. text is This law, frustrates, the former with, federal all to remove designed “was not NCA Inc. v. The Transp., way.” CSX give must New over noise.” control and local 658, 663, state 113 S.Ct. Easterwood, 507 U.S. v. Ass’n Transport Motor (1993) Hampshire (citing U.S. 1732, 123 L.Ed.2d (1st Plaistow, Nonetheless, 2). “a Town VI, cl. art. Const., of way “in no Cir.1995).17 And the clause per- statute a federal interpreting court the court different, aver that also 16. The be no the facts 15. Because the record refusing to include erred deposition by discretion abuse its would not the court just be- testimony, taken time designate out of denying a motion to summary judg- ruled on the court fore Nonetheless, considering remand. filed on motion, attempted to introduce ment pleaded defense was preemption that the to via Motion had ruled court after Reconsider. expired, Rushings' time had after the until issue, be- reach We do not generosity in con apparent light of its and in grounds and its other on we reverse cause supplemental sum sidering late-filed KCS's proceedings on will not affect resolution motion, we absent affidavits mary judgment remand. court, justice of interest hope in the remand, favorably to a motion on will look order curfew upheld town’s 17. The expert of time. designate against out a truck- enforcing ordinance a noise setting max- regulations facility, which ing for

5H suggests Congress meant for the NCA’s noise regulations, then the NCA adoption any regulation federal noise preempts the nuisance suit insofar as that bar or displace every suit complains state regu- effort to excessive noise. If KCS fails late the noise establish its regulatory emissions of interstate compliance, rail then the may proceed suit carriers.” Baltimore & Ohio enforce com- R.R. Ober- pliance by the award (3d damages ly, Cir.1988).18 F.2d exces- sive, nuisance-causing noise. Rather, Similarly, if terms, by its preempts NCA KCS fails to establish that the regu- only those state laws that reg- disparately lates operation of the equipment at ulate operations the same that federal reg- issue, then no preemption of state law govern.19 ulations exists. court, The district therefore, cor- A state employ or allow a rectly concluded that Mississippi cannot common then, law action damages, only enforce noise limits stricter than those set to enforce federal regulations or regu 201.15, forth in covering the operations aspects late of railroads and switching over switchyard.21 which the state has discretionary authorit

y.20 This parameters outlines KCS’s affirmative preemption defense. If With scope of KCS’s affirmative de- KCS establishes that it complies with the established, fense we turn to the Rushings’ imum decibel limits been promulgated have 20. See 463, Bieneman v. Chicago, 864 F.2d pursuant to Although the NCA. (7th the town Cir.1988) 472-73 (explaining scope of could not mandate different decibel levels for permissible common law actions in the con- carriers, motor neither the nor curfew the text regulation noise, federal airport purported regulate ordinance to decibel lev- which is governed, NCA); part, by the cf. els. Hampshire See New Transport, Motor 67 664, CSX Transp., 507 U.S. at 113 S.Ct. 1732 "Rather, F.3d at 332. noise levels were one ("Legal imposed duties on by railroads the equation element of an that also included common law scope fall within the of these 'odors, dust, smoke, matter, refuse fumes ... preemption] broad phrases.’’). [FRSA prompted vibration’ and that a limitation operating on specific hours for one site.” Id. Dover, 21. See Corp. Consolidated Rail 450 The acceptable, court found this holding "it F.Supp. (D.Del.1978) 970 (holding [preemption would stretch the words clause’s] switching operations by covered federal noise beyond ordinary meaning their to strike down regulations and hence local restrictions a curfew order based range on a of concerns preempted inconsistent); if Hamp New cf. where only federal law regulates the decibel Transp., shire 67 (holding Motor F.3d at 332 equipment.” levels of the Id. that, although limited, preemption NCA prevents setting states from different decibel upheld The court 18. a state noise stat- control levels for regu carriers covered under federal ute governing an shipping facility intermodal lations); Transp. Southern Co. v. Pub against preemption a facial Pacific challenge. See lic (9th Util. Oregon, Com'n 9 F.3d 811 R.R., Baltimore & Ohio 116. at Ab- 1993) Cir. (holding relating "state laws to sent some actual conflict between state noise preempted by emissions are the NCA statute regulations, and the federal the court only regulation when a has pur been enacted held that the state apply could its ordinance suant to the Act that covers the same carrier facility. See id. at equipment.”). recognize We that the First Any that Third occupies claim the NCA Circuits view preemption NCA field even regulation of noise more narrowly, apparently allowing is unfounded. reg See id. at state 4916(c)(1) (holding 113-14 § ulation of global "is a noise such require as curfews that preemption provision”). operations quieter Nor does 42 even regula than the U.S.C. § (providing 4911 right a federal tion's day. of action limits at certain for times of See New injunctive Hampshire relief to compliance 332; Transp., force with Motor at F.3d NCA) R.R., an intent evince to completely preempt Baltimore & Ohio 837 F.2d at 116. We state The provides law. same wary approach, section are that it this but need not ad it, does not any right "restrict any ... under dress Rushings because the urged, have not statute or common to court, law seek appeal enforcement of either on or in the district that any noise requirement control any seek their nuisance suit function could as a similar 4911(e). other relief.” U.S.C. temporal restriction. testi exclude did If court granting by erred that the argument In its discretion. abused then it mony, insofar KCS judgment summary The this. dispute deed, KCS does the switch- noise about complain they the sounds that Rushings perceived genuine, a is whether question yard. The were them measured expert KCS’s night KCS’s regarding exists fact issue material night. typical than on a volume of a lesser compliance. except fact this way to state no There is measure- that his attested Seidemann were that conclusory inference operates that demonstrate ments helpful fact and that quieter, regula- in accordance switchyard compliance assessing KCS’s jury however, the affidavits, In their tions. regulations.23 with the mea- Seidemann’s that dispute they typically noise reflect surements b. should the court They claim hear. this whether dispute real testimony pursuant admitted have We issue. fact genuine testimony raises lay opinions, 701, governing R. Evid. Fed. the bur KCS bears it does. conclude question factual it raises its establish adducing evidence den of compli- its has established whether affidavit Seidemann which compliance, ance.22 for Rushings came accomplishes. contradicting facts specific ward with a. mea evidence, disputing rule rejection of review We of the representative surements See of discretion. testimony abuse This creates endure. must they typically 448, 459 USA, Inc., 101 F.3d Oxy Doddy v. sum jury, precluding issue for factual City Cir.1996); v. Universal Miller (5th mary judgment. 1365, 1374 Inc., F.2d Studios, essentially the evidence attacks 701, lay opinion Cir.1981). rule “a Under the First, that argues it ways. three perception, personal on based be must insuffi- legally are assertions Rushings’ person a normal one that ‘be must testimony expert the contradict cient and must perceptions,’ those from form in com- taken were measurements that the Rid v. jury.” United States the helpful to that regulations, and NCA the Cir.1997) with (5th pliance (quot 423, dle, 428 the with compliance they demonstrate F.2d 714 Corp., Freightliner v. ing Soden argument This levels. decibel maximum Cir.1983)); Robinson (5th see also 498, 511 Cir.1990). point. the misses 758, 763 F.2d Bump, (at on least not claim Rushings do The the district not know whether We do failed the measurements instead, point) that or, testimony excluded they did that specifications, meet NCA genuine raise not did decided night. on one compliance not demonstrate opinion fact. court’s of material issue instead, measure- contend, affidavits, They Rushings’ mention not does hence representative are ments established that KCS merely states but typical on a compliance establish cannot guidelines. compliance Harbor v. Benton Mfg. Div. Asplundh 23. See provides that R. Rule Evid., Fed. (“The Cir.1995) (3d F.3d Eng’g, 57 testimony in the form non-expert “witness’ type of evidence example of prototypical to those is limited opinions or inferences adoption of Rule contemplated (a) rational- which opinions or inferences things, persons or appearance of relates witness perception of the ly based on conduct, competency identity, the manner understanding of the (b) a clear helpful to darkness, light, or degrees of person, of sound, size, of a testimony or the determination witness' distance, endless and an weight, fact issue.” be described cannot items number inferences.”). apart from words factually in evening. It would defeat purpose could reasonably find for plaintiff.” regulating maximum noise levels if a rail- Anderson, Id. (quoting 252, 106 U.S. at road could demonstrate compliance on 2505). one S.Ct. Nor are allega conclusional evening but exceed the limits with impuni- tions sufficient.24 ty every other night. But merely claiming that the evidence is The representativeness of the measure- self-serving does not mean we cannot con- ments, then, is compliance. material to Al- sider it or that it is insufficient. Much though, as emphasizes, the measure- and, evidence is self-serving extent, ments may have captured the right conclusional. -“At margins there is (at amount of activity 30 couplings least some room for debate as to how ‘specific’ per session), 60-to-240-minute they did must be the ‘specific 56(e) facts’ that Rule not necessarily record the regular- volume requires in a particular case.” Id. at ly associated with the switching yard. If 110 S.Ct. 3177. the trier of fact believed that on the night If the Rushings merely asserted that question the operators slowed the speed bad,” “the testing is or “the noise usually at which they coupled and coupled fewer louder,” then probably we would have to time, cars aat then it reject could reject it as insufficient to create a genuine evidence as atypical. fact They issue. offered more: They both Second, in a argument, related KCS av- attested that the night in question was lay ers that people are not competent to atypical assessment they are qualified —an give compliance opinions; rather, ex- to make. Both gave numeric comparisons pert testimony is required, and the Rush- on a one to ten scale of night ato ings have timely proffered none. if Even typical night. true, this is a sequitur. non The Rushings do testify even proffered regarding potential NCA compliance; they explanations, simply testify that based on personal their measurements ob- servations, representative, are not for why it quieter because the was than quieter was than usual. usual Willard Rushing evening explained they that “it were taken. explained above, As engineers seemed the did not start Rushings are competent to cars running make that down hill as- with the same sessment under speed rule 701. and, normally therefore, do noise that resulted from the impact of the Finally, argues KCS that the coupling and uncoupling operations, was evidence is insufficient to genuine a create significantly lower than the noise that we fact issue it because is too vague and self- usually fact, hear. In the uncoupling dur- serving. KCS right is that the Rushings ing the measurements was one car aat must come with “significant forward pro time when usually the uncoupling involves bative evidence.” See State Farm Life numerous cars at the same time.” Ins. Gutterman, Co. 896 F.2d (5th Cir.1990) (quoting In re Municipal Similarly, Patricia Rushing observed Reporting Bond Litig., Antitrust that engineers “the did not switch cars in (5th Cir.1982)). Although their multiples they as normally but do switched burden is not high as itas is on typical the only one car at a time. They get did not a nonmoving plaintiff, because KCS bears running start and then cut several cars the burden of proof on its affirmative de loose at once Thus, as often do. the fense, a scintilla of evidence is not enough; noise level by created coupling was not “there must be evidence on which the jury representative the of noise level we nor- Lujan Federation, See v. National replace nol conclusory to allegations of Wildlife the 871, 888, 497 U.S. 110 S.Ct. complaint or answer conclusory allega- (1990) (“The object L.Ed.2d [requiring of affidavit.”). of an tions the nonmovant set specific to forth facts] is and therefore same one the are the two activi- coupling from

mally experience ex- upon based claim nuisance Plaintiffs argument, acknowledged KCS As ties.” If dismissed.” bewill if vibrations you that cessive tell sense “[c]ommon the shocks true, find should we a have to were faster, going you’re you’re going claim of aspect vibrations and louder noise.” should well, plaintiff as preempted “Dr. even that Rushing testified Willard aas vibrations to restrict able not be operations that the recognized Seidemann circumventing noise way of backdoor from were different changed had been effect. preemptive regulations’ my wife told he because expected what he railroad go to had to record, that he and me howev- judgment summary These on.” going was see what yard to supporting evidence er, devoid is raising specific facts sufficient provide not at- did Seidemann conclusion. court’s affirmative on the trial issue genuine evidence fact, does other nor test to Accordingly, preemption. defense one are and vibrations noise that indicate on judgment summary entitled was not sum- seeks Because same. and the emis- noise based on claim defense, the nuisance its affirmative judgment mary sions. demonstrating the burden it shoulders fact material issue of genuine of a the lack It not. has it. regarding contest Rushings also dixit ipse court’s accept can we Nor NCA that conclusion court’s district same, though and the one they are that itas insofar claim nuisance their preempts can take we of which a matter it were from shocks and vibrations complains phe- complex ais Sound notice. judicial- regula only activity. The switchyard con- impossible nomenon, making limiting decibel are those applicable tions - relevant evidence, that clude, without train certain from emissions levels of directly and decibels vibrations is absent Conspicuously operations. causally correlated. preempt purpose manifest clear of noise damages regulation beyond the claim addition, state action In operations. specified shake from and shocks emissions the vibrations from regulations nor the the vi- Although the statute some of Neither property. their fact, KCS does In vibrations. be caused mention shocks brations vibrations regulates that the waves, contend substantiates no evidence sound per large rail Perhaps shocks se.25 is. any of them waves shock cause together crashing cars perfunctory court made The district cause waves sound from distinct a direct that, there “[s]ince conclusion decora- wall to shake and Rushings’ home of vibrations the level between correlation slip.26 tions noise, finds the Court level of and the the Rush- observations common and point does out 25. KCS re is evidence us that ings convince subject matter make same from stem vibrations accept court’s activities, Transp., 507 we could citing quired CSX before coupling of a 664-65, prop- speaker in car for large bass A 113 S.Ct. U.S. at conclusion. neigh de- regulated subject matter vibrations that the excessive osition cause might viewing the scope. But preemptive An air “sounding loud.” termines boring without car narrowly, we as subject coming matter preempted train cars of two clash and the horn cou- from must, subject is noise matter at equally "loud” might together be establish coupling. To just pling and not one’s source, not shake air horn will but the of the aspect vibrations preemption of might. clashing windows, cars while the and decibels show that must complaint, KCS a metal onto empty metal drum Dropping an directly causally correlat- and vibrations clanging noise a loud create surface di- vibrations ed, regulation of such cym bals. of clash vibrations-notunlikethe and back- enable and rectly decibels would affect th sand and i w drumfilled same regulation of noise. door may be able to establish preemp- rule, regulation order, or standard tion proper evidence explaining why covering the subject same matter of pertinent vibrations and decibels are such State requirement.” Even after directly correlated. inBut the absence of federal standards have been promulgat- summary judgment evidence, ed, the court may States adopt more stringent should not have dismissed aspect safety requirements “when necessary to the claim.27 eliminate or reduce an essentially local

safety hazard,” if those standards are not “incompatible with” federal laws D. regulations and not an undue burden on The Rushings find error the dismissal interstate commerce. of their nuisance claim as preempted by 434). Id. (quoting § 45 U.S.C. insofar complains FRSA as it of exces- sive train whistling, contending that a gen- “FRSA preemption is even uine issue of material fact more exists as to disfavored than preemption general whether ly.” Pac., KCS sounds its only Southern whistles 9 F.3d at 813. The necessary safety reasons. agree. restrictive We terms its preemption provi

sion “indieate[ ] that pre-emption will lie only if the regulations federal substantially subsume subject matter of the relevant Recognizing that regulations state law.” CSX Transp., 507 U.S. at explicitly exclude train whistles from their 113 S.Ct. 1732. When applying FRSA scope, 210.10, § see C.F.R. the district preemption, the Court has eschewed broad court held that the FRSA preempted the categories such as safety” “railroad Rushings’ excessive whistling complaint. has looked categories narrow The FRSA was “to promote enacted safety “warning devices” installed at federally- in all areas of operations railroad and to improved grade crossings “train reduce accidents, railroad-related and to speed.” 665-75, ” Id. at 1732; 113 S.Ct. see reduce injuries deaths and to persons.... Pac., also Southern 9 F.3d at 813.28 Transp., CSX 507 U.S. at 113 S.Ct. 421). 1732 (quoting § 45 U.S.C. The Act Regulations promulgated pursu grants the Secretary of Transportation ant to the FRSA require all lead locomo broad power to promulgate regulations tives equipped with audible warning “for all areas of railroad safety.” Id. at devices with a specified minimum decibel 662, 113 S.Ct. 1732 (quoting 45 U.S.C. level. See § 49 C.F.R. 229.129. From this 431(a)). Congress expressly defined the regulation and the fact that KCS allegedly preemptive scope any promulgated reg sounds its only whistles required ulations: (at safety grade reasons crossings be States “adopt or continue in force fore backing up), KCS contends that the law, rule, any regulation, or standard nuisance claim is preempted. Given the relating to railroad safety until such scope narrow of FRSA preemption, howev time as the Secretary adopted er, has the cited regulations do not preempt dropped height from the same onto the same safety” devices and utterly train at odds (more surface would sound less loud of a dull with the holding Court’s that the FRSA does thud) but would significantly create larger preempt wrongful action death based shock waves. grade an crossing, accident at despite a the regulations’ coverage warning of at devices 27. Airways Auth., British Bd. v. Port Cf. federally-funded grade crossings. See CSX (2d F.2d Cir.1977) 1010-12 (treating Transp., 671-72, at U.S. 113 S.Ct. 1732. distinct). noise and vibrations as cites, only The unpersuasive case it authority own, 28. pre-dates KCS’s claim on the its regula- Transp. that FRSA CSX and its "occupy tions the field of warning locomotive law. See preempt state hence cannot and claim does fact, nuisance the claim. In

the regu- at 812 n. safety id. railroad a state constitute not at all. lation embodies action A nuisance complain the Specifically, Nui of reasonableness.30 considerations whistles their sound the trains when about by KCS’s be limited liability should sance reason); (at apparent no night, for of sounding and reasonable necessary sound-produc- only the address regulations reasons; and law state safety for whistles A sound the whistles.29 of capacity ing rel be operating requirements not sub- does safety regulation capacity of establishing the reasonableness evant on when regulations stantially subsume If KCS demonstrated soundings. whistle Pac., See Southern sounded. whistles are in the inter only its whistles it sounds that likely state Although the at 813. that persuaded safety, we might est of sounding of whistles regulate the not could appropriate. judgment is summary it because altogether, them banning whistle of purpose would defeat however, have Rushings, impose restric- can provision, capacity of fact as genuine a issue demonstrated id. See they are sounded. on when tions only in whistles trains sound whether the nuisance preempt not does FRSA KCS introduced safety. of the interest of law. aas matter claim trains sound that attested its that affidavit and crossings grade only before whistles Rushing, on reversing. Willard before vein, argues In a similar hand, the trains sound avers that other non- because preempted is the claim that when the of periods time long “for whistles whistles it to sound requires law FRSA beginning or moving are not trains not consider KCS’s We do it does. when move.”31 a train to requiring on state law reliance testimony as Rushing’s challenges crossing, grade before its whistle sound “having on “conclusionary” and not based state raise stat not did because KCS locomotives,” we arguing that observed may not and hence district court in the ute unsupported this “mere rely not on should rely on KCS’s may we Nor it now. raise tes- Rushing specifically Yet conjecture.” sounding require that rules operating when sound the whistles tified crossing a reversing or warning before no refer- moving, and not with trains rules these files Although KCS grade. reversing. These or to crossing to a Administration, ence Railroad the Federal per- he necessarily imply observations adopts nor approves neither agency moving the trains sonally has observed of law the force them; have they do not 882). Sounding (up- (Second) at 813 Pacific, 9 F.3d Torts of statement 29. See Southern invasion; an intentional constitute whistles restrict regulations that holding state interest of another’s invasion intentional "[a]n only grade cross- sounding whistles of train unreason- is enjoyment land and in the use only be- safety devices ings with certain outweighs gravity harm if ... able hours). certain tween conduct.” utility the actor's Restate- § 826. (Second) Cason, of Torts ment So.2d Stanley, Inc. T.K. 30. See ("One (Miss.1992) subject to is liabil- signal- "are if, if, further attests 31.He only his but private nuisance ity fact do not in trains ing since the to move invasion legal cause of an a conduct sit there whistling but often after en- move private use and interest another's tooting the whistles- simply (a) long periods land, is either the invasion joyment of are often sound- "Whistles unreasonable, (b) and forth.” back uninten- intentional to a cross- reference that have no at times ed under actionable and otherwise tional regularly up. backing The whistles ing or to negligent or liability for controlling rules moving neither engines are danger- occur when conduct, abnormally or for reckless to move.” beginning activities.") nor (quoting Re- conditions ous

517 while hearing whistles. This presents . are damnum absque injuria KCS con competent summary judgment evidence. tends that its switchyard activities are public acts, operations because the are es The district court held that “[t]he sential for transporting goods over its lines whistles on the trains ... are sounded as public’s benefit. the trains approach grade a crossing and argument KCS’s lacks merit. before the trains move KCS backward.” In quotes a long passage from reaching conclusion, Dean con resolved party holds a cannot recover flicting “any inju- testimony in KCS’s favor. It can ry which is the result of noise produced by not do this on a summary judgment mo the operation of tion, trains on main Anderson, lines.” Id. however. See 477 U.S. at This principle 249, extends to spur 106 tracks S.Ct. 2505 (observing that “the connect to main lines. See id. judge’s But function is not himself weigh next paragraph after the one quotes evidence and determine truth of the distinguishes that case from a matter but to railroad’s determine whether there is a private functions: genuine trial”). issue for The Rushings have demonstrated a genuine issue of It may ma be conceded that a railroad com- terial fact on the FRSA preemption pany de is not protected by its charter in fense, and KCS has not established it is a creating private nuisance. It cannot entitled judgment aas matter of law. locate its machine shops, roundhouses, chutes,

coal tanks, water or private switchyards adjacent E. near or private property under such circumstances as to KCS also argues it carries create private a nuisance and thereby out its in functions the public interest and depreciate or damage private property. that, law, under Mississippi private a nui In the placing or construction of these sance suit will not lie against a railroad for conveniences the railroad company has acts, its public absent a showing negli power selection; its in act placing gence. Contrary to suggestion, installing necessary these conve- district court did not decide this matter in niences must be classed as the private its Nonetheless, order. we affirm acts of public corporation. summary judgment on any basis evident Id. at 56-57. the record. See Chriceol v. Phillips, 169 313, Cir.1999); F.3d v. Lib Davis quotes KCS also passage from Robert- Co., erty Mut. 1204, Ins. 1207 son that ends with the following: (5th Cir.1976). As to all those functions which are exer- cised in the direct immediate service correctly posits that ab of the public the carrying passengers sent showing of negligence, Mississippi transportation handling law tort exempts public functions of a of freight, public, and, these are long so private railroad from nuisance suits. See as exercised negligence without and in Collins, Jenner v. 770, 211 Miss. 52 So.2d the customary manner with appropriate 638, (1951); Robertson New Orleans instrumentalities, are within protec- G.N.R.R., & 24, Miss. 129 So. tion of public franchise.... (1930); Dean v. Southern Ry., 112 Miss. Robertson, 129 So. (1916). at 102. So. Yet the very 56-57 An action states, next sentence taken “to public serve the generally ...

must characterized a public and not But to all those permanent features of a private act of the railway company.” the service which appertain merely to Dean, 73 So. at 56. This distinction be the means of the supply of those instru- public tween and private crucial, acts is mentalities, keeping and in them in or- only public because acts of a railroad der making them available for said subdivi- political railroad, or no State by private the service, belong they direct any enforce may adopt or thereof incidental, sion are not although and, part, emissions to noise applicable directly standard public is the which .things with the of same operation the resulting from the which things concerned; they are un- carrier facility of such equipment inter- its own for manages railroad to a stan- is identical such standard less ... est. re- noise emissions applicable to dard Id. prescribed operation such sulting from above the quote toon goes opinion The this section. under regulation by any traffic distinguish Dean to from passage 4916(c)(1). reg- federal The § 42 U.S.C. tracks, intersection and mainlines, spur on set statute under this promulgated ulations for which acts private the from switches as levels emission sound permissible out place- the liable, including may be railroad by affected properties from measured proper- private near switchyard of a ment See railyard operations. from noise Indeed, Id. a nuisance. to create ty so (standard locomotive for § 201.11 C.F.R. a nui- holding allows ultimate Robertson’s conditions); id. stationary under operation vi- and of noise complaining action sance opera- (standard locomotive for § 201.12 switchyard that a railroad’s from brations conditions); id. moving under tion plaintiffs the next to constructed had been (standard operations); car rail for § 201.13 id. 101-02. See proceed. home to retarders); id. (standard for § 201.14 id. about the noise Rushings complain The opera- (standard coupling car for § 201.15 private from KCS’s coming vibrations and (standard for locomo- tions); § 201.16 id. to their right next switchyard, constructed stands). regulations test load cell tive in presented very situation home—the that criteria measurement specify also square- holding is Robertson’s Robertson. and necessary parameters the “contain under held liable can be point. ly on the of measurement the for procedures ” nuisance bringing this law Mississippi Id. .... prescribed levels emission noise Rushings. Thus, §§ 201.20; 201.21-.27. id. § see reasons, judgment set foregoing within limits For the levels emission sound for fur- in ac- REMANDED as measured regulations, is REVERSED in the out prescribed proceedings. ther the procedures with cordance law. Under federal with thereby, comply part in concurring KING, Judge, Chief not Act, a state Control Noise dissenting part: standard a different or enforce adopt 42 U.S.C. See emissions. noise majority of much I concur While 4916(c)(1). points. crucial some disagree I opinion, Rushings’ that the that Seide- First, case, undisputed cannot conclude I it is this In emanating from regula- federal the noises testimony complied that with mann that Seide- night on the railyard taking his measurements tions were sub- levels his measurements sound took showed mann measurements they than sounds prescribed limits stantially quieter within well genuine issue insist endure raises While typically regulations. feder- the switch- compliance emanating from fact as to KCS’s the noises Act of took Noise Control that Seidemann night regulations. during al yard representative were provides: measurements his live, usually in which of the conditions regulation [Ajfter date effective require do regulations applicable section under “typical,” emission measured sound operation from the resulting emissions specify They do may mean. whatever facility of a surface any equipment instruments, locations, lengths certain commerce in interstate engaged carrier time, and weather conditions for measure- A railroad serves both public and ment. I imagine cannot that compliance itself. As to all those functions which with the Noise Control Act regula- and its are exercised in the direct or immediate requires tions that a go beyond railroad service of public in the carrying of the dictates of those documents to ensure passengers and in the transportation that measurements are “representative” or handling and of freight, public, these are “typical.” Such a rule run directly and, so long as exercised without negli- counter to the prohibition Act’s on any gence in and the customary manner with standards for railroad noise emissions that appropriate instrumentalities, are within are not identical to in those the regula- protection of the public franchise Indeed, tions. the majority’s reasoning granted to that end. But all those per- guts preemptive effect of the federal manent features of the service which regulations: No matter what sound emis- appertain merely to the means of the show, sion measurements plaintiff a will be supply of instrumentalities, those in and able to obtain a trial on her nuisance claim keeping them in order making and them simply by claiming that the noises mea- available for said service, direct sured were not typical. Therefore, I do belong to private part, and, although not believe that Rushings’ testimony incidental, not things are with which the suffices to raise a genuine issue of fact as public is directly concerned; they are to compliance with the Act and the things which the manages railroad regulations. that, I would hold insofar as its own interest .... it noise, is based the Rushings’ nuisance The result is that for the oper- normal claim is preempted. ations, however heavy may this be be- Subject to below, the discussion I agree tween station station, and or from sta- majority that federal law does not tion a local shipping loading point, preempt the Rushings’ nuisance suit inso or point of unloading, and whatever the far as vibrations, based on shocks, and number of trains, tracks or including excessive train whistling. view, In my all station or interstation switching, however, viability of these claims de there is no liability consequential pends on whether railyard’s activities But, damages. quote the language of public acts exempted private from nui the Dean [Dean Case v. Southern Ry. sance I join suits. cannot majority’s Co., (1916) Miss. ], So. characterization of KCS’s argument this railroad “cannot locate its machine regard as lacking in merit. Two decisions shops, roundhouses, chutes, coal water of the Mississippi Supreme Court, Robert ” tanks, or private stvitchyards and Dean, son and are central. In Robertson permanent those other things which be- v. New Co., Orleans G.N.R. & 158 Miss. long its private concerns “near or 24, 129 (1930), So. 100 plaintiff filed adjacent to private property under such nuisance suit alleging that the defendant circumstances as to private create nui- railroad had “erected and constructed and sance thereby and depreciate damage is now tracks, certain maintaining railroad private property.” The pleadings make including private six tracks, switch each part, therefore, a case which falls about one mile length, yards, railroad rule, within this and the cause should work shops, wye, terminals, a place for not have been luholly dismissed. refueling, firing and place and a watering, for the switching, storing Id. cleaning and at 102. Contrary to majority’s engines, coaches and produced assertion, cars” that Robertson holds neither that a noise, vibrations, excessive and filth. Id. railroad be liable for placement “the at 101. The lower court dismissed of a switchyard private near property so as suit. id. at See 102. The Mississippi Su create a nuisance” nor “allows a nui- preme Court ruled: sance action complaining of noise vi- the rail- act of private public switchyard that a railroad’s from

brations produced noise company. way plaintiffs next constructed been had upon per- over Rather, trains Robertson the defendant’s proceed.” home to class switch- private in the same against falls track spur suits nuisance mits the Robertson Moreover, operation while by the produced yards. case plaintiffs’ all of the railway. held line of main over the trains clearly dismissed, it been have should distinguished Later, the court at 56. Id. par- as dismissal court’s lower the viewed chutes, roundhouses, coal shops, “machine which specify not it did correct, and tially switchyards,” tanks, private or water many the the among facilities railroad nuisance rise give to can activities nuisance whose rise to give could named plaintiffs plac- the “[i]n that grounds the liability, on liability.- conveniences of these construction or ing some Robertson, provides Dean Like of power the has company function-private the railroad public guidance aof in installation ultimately But the .... not does but selection distinction function Dean, of complained the In here bar. one at like the case track spur the control alleging ex- It option. suit nuisance no filed a has company plaintiff railroad the his near track spur doing from so service, in cessive and the afford must main railroad’s the ran from that home at Id. 56- generally.” serving public the is Dean, 73 See compress. cotton to a line Supreme Court Mississippi The at So. principles the that under argues that noted Robertson, the and in Dean enunciated private of complain not does [pjlaintiff give case in this cannot at issue switchyard railroad by the installed switchyards contends liability. KCS com- to nuisance track here rise spur The company. track, is spur track, neces- made like Dean’s railyard, its is a that of service plained taking and a convenience: depositing necessity, not the sary public for cotton han- of quantities the KCS large of includes aboard which yard, rail “[T]he legiti- compress large aby dled commerce of line, a hub interstate —the is main aby required business railroad mate be to up trains and build sequence to used is There compress business. legitimate benefi- The destinations. to different sent ser- this that by appellant no contention trans- that in public general ciaries unnecessary, that there or is track vice line, a interstate over KCS’s port loads compa- railroad by the negligence any is without possible not be that function engines of its selection ny, either assertion, this of support In yard.” handled they are way in the or and cars Martin, Andy of cites the affidavit The com- point. and switched trainmaster, averred who railyard’s to call right had company press switching several of yard “consists and, track, of this service the installation line” and main of off tracks, run which to decline company should if the railroad switching interstation in essence “is com- it, it could furnish install off and drop hub, trains wherein point, Commis- by the Railroad do so pelled to various to them deliver and railcars pickup this spur over done business The sion. view, my In country.” locations character the same is track therefore per- railyard argument freight de- regular at the done business frivolous. functions public forms was installed track spur pots. its mer- address did court district the act and generally, public serve the I think however, its,1 because aas must be characterized installation Reverse Reconsider and Motion ment Opinion and Order August its 1. In July Order Filed Opinion and the Court's Supple- Motion Rushings’ Second granting “In court said: district Judg- Summary Motion Response to ment is better suited than district appeals to make a first

court of determina- OLABISIOMOTOSHO, Sharon taking place tion of whether the activities Plaintiff-Appellant, yard question public at the were func- tions, findings. I would remand for such HOUSTON; CITY OF et al.; Defendants, Accordingly, I would AFFIRM the dis- trict holding court’s federal law City Houston; Bartlett; P.J. K.L. preempts Rushings’ nuisance claim in- Richards; Bertrand, Rene complains sofar as it of excessive noise Defendants-Appellees. other than train I whistling, respect- No. 98-20027. fully from majority’s dissent decision portion reverse on this of the Rushings’ United States Court Appeals, I claim. AND RE- REVERSE Fifth Circuit. MAND the district ruling court’s on the 30, Aug. 1999.

vibration and train whistling issues with 29, Rehearing Sept. Denied (1) instructions to decide whether the rail- yard’s public activities are exempt acts

from private nuisance suits under Missis- (2) law;

sippi dismiss the lawsuit if it finds are, fact, railyard’s activities (3) acts;

public address the vibration whistling

and train in light claims of our conclusion that

unanimous these are not

preempted by federal law if it finds that railyard’s private are activities acts.2

Accordingly, while I majori- concur

ty’s decision to reverse and remand on issues,

these I strongly differ with the

majority’s rationale doing. for so Summaty Judgment Defendant's on allegations subject Motion for esl and cannot be the of a claim for (1) July found that Plaintiffs’ private majority, nuisance.” Like the I read preempted by the Noise Con- August the district court’s 1998 statement as (2) trol Act of switching 42 U.S.C. 4916 and opinion mischaracterization of its earlier yard activities at the rail are in the not, fact, conclude that it did address the

public subject interest and be the of a cannot argument switching merits of KCS’s that its private claim July nuisance.” The public activities are functions. however, not, Opinion and Order does find; merely recognizes so that KCS quarrel majority's I have no with the evi- summary judg- claimed that it was entitled to dentiary procedural holdings. switching ment because “the activities con- yard public ducted at the rail are in the inter-

Case Details

Case Name: Willard Rushing and Patricia Rushing v. Kansas City Southern Railway Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 30, 1999

Citation: 185 F.3d 496

Docket Number: 98-60590

Court Abbreviation: 5th Cir.