Troy L. Rouzer v. CSX Transportation, Inc.

01/30/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 14, 2024 Session

TROY L. ROUZER v. CSX TRANSPORTATION, INC.

Appeal from the Circuit Court for Hamilton County

No. 18C330 L. Marie Williams, Judge

No. E2023-01271-COA-R3-CV

This appeal concerns whether a railroad employee’s negligence claim brought under the

Federal Employers Liability Act, 45 U.S.C. § 51, et seq. (“FELA”) is precluded by the

Federal Railroad Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”). Troy L. Rouzer

(“Plaintiff”), a locomotive engineer, sued CSX Transportation, Inc. (“Defendant”) in the

Circuit Court for Hamilton County (“the Trial Court”) under FELA for injuries he sustained

in a collision. Plaintiff alleged insufficient training. Defendant filed a motion for summary

judgment, arguing that FRSA precludes Plaintiff’s FELA claim. Defendant argued that

national uniformity in safety rules requires this result. The Trial Court granted Defendant’s

motion. Plaintiff appeals. We hold, inter alia, that in view of the United States Supreme

Court’s holding in POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 134 S.Ct. 2228,

189 L.Ed.2d 141 (2014), exemplified in its statement 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. at 115,

Plaintiff’s FELA claim is not precluded by FRSA as both federal statutes complement one

another toward the goal of rail safety. We, therefore, reverse the Trial Court’s grant of

summary judgment to Defendant and remand for further proceedings consistent with this

Opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which THOMAS R.

FRIERSON, II, and KRISTI M. DAVIS, JJ., joined.

William G. Colvin, Chattanooga, Tennessee; and William C. Tucker, Jr., and Paisley

Newsome, Birmingham, Alabama, admitted pro hac vice, for the appellant, Troy L.

Rouzer.

John W. Baker, Jr., and Emily L. Herman-Thompson, Knoxville, Tennessee, for the

appellee, CSX Transportation, Inc.

OPINION

Background

On July 22, 2015, Plaintiff was working aboard a train as a locomotive engineer for

Defendant. Jeremy Worsham (“Worsham”) was the train’s conductor. At the time of the

incident, Plaintiff was on the right side of the cab in the engineer’s seat, while Worsham

was on the left. Plaintiff watched the rear of the train as it went around a right curve.

Worsham yelled “truck, shoot them!” This meant for Plaintiff to activate the emergency

brake. An object had been sighted on the tracks. Plaintiff blew the horn and put the

automatic brake on emergency. Plaintiff then got on his knees. He bailed the independent

locomotive brake with his left hand, and with his right hand blew the horn up through

impact. The train nevertheless hit an abandoned box truck sitting on the tracks.

In March 2018, Plaintiff sued Defendant pursuant to FELA in the Trial Court.

Plaintiff alleged that, as a result of the collision, he “suffered severe and permanent injuries

to his body, including but not limited to, his neck, back, spine, body and the bones,

vertebrae, disks, ligaments, tendons, vessels, nerves, and other tissues thereof, that were

wrenched, sprained, herniated and otherwise injured and damaged.” Plaintiff alleged

further that “Defendant failed to provide reasonably safe training and methods for work

and Defendant knew, or in the exercise of ordinary care, should have known of such

conditions and that such conditions were reasonably likely to cause substantial harm.”

Specifically, it is Plaintiff’s position that Defendant was negligent by failing to train him

adequately on how to respond to a collision scenario.

In May 2021, Defendant filed a motion for summary judgment. Defendant argued

that FRSA, which was enacted in 1970 to promote rail safety, precludes Plaintiff’s claim

under FELA, which was enacted in 1908 and provides an avenue for railroad workers to

seek redress for on-the-job injuries. Defendant argued:

Put simply, if there are FRA [Federal Railroad Administration]

regulations for crew qualification and training, and CSX has complied, as

here, plaintiff’s FELA common law negligence claims are barred as

precluded. The FRA regulations promulgated under the FRSA do more than

establish a floor. They set a standard of care with which any other standard

(set by a jury under the FELA) would be in conflict. The language of the

preemption provision of the FRSA recognizes the need for this kind of broad

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displacement: it says that state laws are preempted if there is a federal

regulation covering the subject matter. The FRA itself has already spoken to

this point, for example, explaining that lower speed limits can be detrimental

because shifts in train speed create a risk of derailment. See Track Safety

Standards, 63 Fed. Reg. 33991, 39999 (June 22, 1998) (“Each time a train

must slow down and then speed up, safety hazards, such as buff and draft

forces, are introduced.”). As the courts have explained, the FRSA

regulations and objectives of uniformity would be rendered “virtually

meaningless” by allowing juries in FELA actions to substitute their views for

the FRA’s expertise and subject the railroads to conflicting standards.

In June 2022, Plaintiff filed a response to Defendant’s motion for summary

judgment. In his response, Plaintiff stated, in part:

Plaintiff’s biomechanical engineer and accident reconstructionist, Dr.

Tyler A. Kress has testified that the railroad should train their employees

what to do in the obviously foreseeable event of an impending collision such

as this. Dr. Kress reviewed the CSX Transportation Air Brake Train

Handling and Equipment Handling Rule Book as well interviewed two other

CSX engineers, and confirmed that Rouzer was operating the brake system

at the time of impact consistent with the way that he had been trained to do

with CSX. (Kress Affidavit, ¶ 31). Dr. Kress will testify that the position in

which Rouzer had to place himself, because of his compliance with CSX

rules and his training, put Rouzer at a much greater risk of injury than if he

had been trained to mitigate the risk.

***

Further, it was Worsham’s responsibility to keep a lookout ahead of

the train. Rouzer had the responsibility, because of the right-hand curve, to

look back and inspect his train out of this curve. This duty is well known

among train crews and the conductor had the responsibility to keep the

lookout ahead. Worsham should have put the train in emergency much

sooner and, if he had done so, the collision would have been avoided, or the

impact significantly lessened. Worsham’s failure to properly keep a lookout

also violated CSX’s duty to provide Rouzer with a reasonably safe place to

work under the circumstances and resulted, in whole or in part, in his injuries.

***

Even assuming his effort to bail the brake was not futile, when it

became clear that the truck was not going to move, and the collision was

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inevitable, Mr. Rouzer should have been allowed to abandon the independent

brake and horn and get in a position to brace for impact that would reduce

his risk of injury from the impact and secondary impacts. Plaintiff’s experts

both agree that proper training on body position would have mitigated the

risks to Rouzer in this collision.

With respect to Defendant’s preclusion argument, Plaintiff contended that FRSA

supplements rather than supplants FELA.

In April 2023, the Trial Court heard Defendant’s motion for summary judgment. In

August 2023, the Trial Court entered an order granting summary judgment in favor of

Defendant. In its order, the Trial Court stated, in part:

Plaintiff claims the Defendant was negligent in failing to train its

employees on proper safety and braking procedures at imminent grade

crossing collisions. The Defendant claims there is no evidence of negligence

on the part of the Defendant and Plaintiff’s federal common law claims under

FELA related to such training are precluded by the FRSA and the FRA’s

regulatory framework for qualification and training locomotive crews. The

preclusion argument is dispositive of the entire case. Therefore, it is not

necessary to address other bases on which the motion for summary judgment

is filed. The Plaintiff identifies no contested material facts relevant to the

preclusion argument.

As an additional theory, the Defendant contends that the sole cause of

the accident was the abandoned truck on the crossing and no trier of fact

could find otherwise. Plaintiff contends that it is undisputed the truck on the

tracks caused the accident but argues a reasonable jury could find that the

Defendant’s training procedures caused Plaintiff’s injuries. It is not

necessary to address this issue.

FELA provides in pertinent part: Every common carrier by railroad

while engaging in commerce . . . shall be liable in damages to any person

suffering injury while he is employed by such carrier in such commerce . . .

for such injury or death resulting in whole or in part from the negligence of

any of the officers, agents, or employees of such carrier, or by reason of any

defect or insufficiency, due to its negligence, in its cars, engines, appliances,

machinery, track, roadbed, works, boats, wharves, or other equipment. 45

U.S.C. § 51.

To establish a prima facie case under FELA, Plaintiff must present

“more than a scintilla of evidence” to prove that some act or omission on the

part of the railroad employer constituted negligence. Aparicio v. Norfolk &

W. Ry., 84 F.3d 803, 805 (6th Cir. 1996). Plaintiff must “prove the traditional

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common law elements of negligence: duty, breach, foreseeability, and

causation.” Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 269 (6th Cir.

2007).

The issue before the Court is whether the negligence claim under

FELA is precluded by the Federal Rail Safety Act and FRA regulation. The

FRSA’s purpose is “to promote safety in every area of railroad operations

and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101.

Under the FRSA’s express preemption provision, “[l]aws, regulations, and

orders related to railroad safety . . . shall be nationally uniform to the extent

practicable.” 49 U.S.C. § 20106(a)(1). A state-law negligence action is

“covered” and therefore preempted if a FRSA regulation “substantially

subsume[s]” the subject matter of the suit. Nickels v. Grand Trunk W. R.R.,

560 F.3d 426, 429 (6th Cir. 2009).

Plaintiff argues neither FRSA nor FRA precludes negligence claims

under FELA. For support, Plaintiff relies on POM Wonderful LLC v. Coca-

Cola Co., 573 U.S. 102, 134 S. Ct. 2228 (2014). POM Wonderful involved

claims of false advertising against Coca-Cola under the Lanham Act 15

U.S.C. § 1125(a). Coca Cola argued that the Lanham Act claim was

precluded by a regulation promulgated by the FDA pursuant to the Federal

Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, prohibiting the misbranding

of food and drink. The Court held that “when 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.” POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 115 S. Ct.

2228 (2014). Plaintiff claims the test set in POM Wonderful applies to this

current matter. However, the sixth circuit has not adopted this test in regards

to FELA claims since the statutes are different. In a case involving a

preclusion of training claim, Norfolk S. Ry. v. Tobergte, the Court held: “No

matter how persuasive the Court may find the reasoning in POM Wonderful

as applied to this instant case, the Court is hesitant to overturn established

and binding Sixth Circuit precedent, absent further guidance from the Sixth

Circuit. . . .this is particularly the case here where Nickels involves different

statutes than those at issue in POM Wonderful. . .Accordingly, the Court

finds that Nickels still governs the relationship between the FRSA and the

FELA—the FRSA precludes a FELA claim when an FRA regulation covers

the subject matter of the claim, and the railroad has complied with that

regulation.” No. 5:18-207-KKC, 2021 U.S. Dist. LEXIS 21391, at *25-26

(E.D. Ky. Feb. 4, 2021).

When analyzing both parties’ cases used to support or refute the issue

of preclusion, Plaintiff does not rely on cases supported by the 6th Circuit

and focuses their argument on cases that agree with the analysis set in POM

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Wonderful. The Defendant does rely on the 6th Circuit for support which

refutes the analysis established in POM Wonderful. Plaintiff relies on

Zeagler, a GA Supreme Court case that disagrees with 6th Circuit cases on

the issue of whether railroads have a duty of care when it comes to safety

training. Norfolk S. Ry. v. Zeagler, 293 Ga. 582, 748 S.E.2d 846 (2013).

However, the Plaintiff did not provide any binding 6th Circuit cases that

agree with the GA Supreme Court’s analysis. Plaintiff also relies on Murray

v. S.C. Cent. R.R. Co., LLC, a 4th Circuit case that states FRSA only has a

state law preemption but not a federal preclusion section and the Court

believes Congress did not intend to preclude claims under FELA based on

differing standards. Civil Action No. 4:16-03841-AMQ, 2018 U.S. Dist.

LEXIS 132268 (D.S.C. Aug. 7, 2018). In addition to Murray, Plaintiff cites,

Madden v. Antonov, an 8th Circuit case that declined to follow the 6th

Circuit’s dismissal of the analysis set in POM Wonderful. 156 F. Supp. 3d

1011 (D. Neb. 2015).

The 6th Circuit is consistent in its analysis on the issue of preclusion.

In Parker v. CSX Transp. INC., the Court addressed specifically the failure

to train claim and held that “[t]he preemption issue is not whether federal law

addresses how and when a train approaching an object on the tracks must

apply the brakes and sound the horn. The real question is whether federal

law on railroad training “substantially subsume[s]” the subject matter of the

relevant state law. . .[t]he Court concludes that the federal regulations on

railroad training “substantially subsume” Tennessee law on a railroad’s duty

to train its personnel. The regulations further require railroads to submit their

training program to the Federal Railroad Administration for approval. In

light of the foregoing, the federal regulations governing railroad training

“substantially subsume” the Tennessee common law on railroad training.”

No. 17-2262-STA-egb, 2017 U.S. Dist. LEXIS 190257, at *15 (W.D. Tenn.

Nov. 17, 2017). The Defendant cited five additional cases from the 6th

Circuit that specifically address the decision from POM Wonderful, which

all four cases disagree with the analysis. (Norfolk S. Ry. Co. v. Tobergte, No.

5:18-207-KKC, 2021 U.S. Dist. LEXIS 21391 (E.D. Ky. Feb. 4, 2021); CSX

Transp., Inc. v. City of Sebree, 924 F.3d 276 (6th Cir. 2019); Wheeler v. CSX

Transp., Inc., No. 3:14 CV 2689, 2017 U.S. Dist. LEXIS 114059 (N.D. Ohio

July 21, 2017); Bahus v. Union Pac. R.R. Co., 2019 IL App (1st) 180722,

433 Ill. Dec. 382, 131 N.E.3d 1227; Schendel v. Duluth Missabe & Iron

Range Ry. Co., 2014 Minn. Dist. LEXIS 8).

This Court is not bound by 6th Circuit decisions as they are “merely

persuasive”. Clark v. Gwyn, No. M2018-00655-COA-R3-CV, 2019 Tenn.

App. LEXIS 176, at *19 (Ct. App. Apr. 11, 2019). However, this Court finds

the 6th Circuit cases to be more authoritative than the other cases cited by

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the Plaintiff. Plaintiff cases rely on a Supreme Court decision related to a

different Federal statute and does not provide any persuasive cases that

negate the 6th Circuit consistency on the issue of preclusion. Because the

Plaintiff has failed to establish a genuine issue of material fact regarding

whether a negligence claim under FELA is precluded by the FRSA and FRA

statutory guidelines their claim must be dismissed as a matter of law.

Plaintiff timely appealed to this Court.

Discussion

Although not stated exactly as such, Plaintiff raises the following issues on appeal:

1) whether the Trial Court erred in holding that Plaintiff’s FELA claim is precluded by

FRSA; and 2) whether the Trial Court erred in dismissing Plaintiff’s claim rooted in

Worsham’s alleged negligence.

Regarding the standard of review for cases disposed of by summary judgment, the

Tennessee Supreme Court has instructed:

Summary judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Tenn.

R. Civ. P. 56.04. We review a trial court’s ruling on a motion for summary

judgment de novo, without a presumption of correctness. Bain v. Wells, 936

S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare–

Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a

fresh determination of whether the requirements of Rule 56 of the Tennessee

Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d

193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d

453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, when the moving party does not bear

the burden of proof at trial, the moving party may satisfy its burden of

production either (1) by affirmatively negating an essential element of the

nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s

evidence at the summary judgment stage is insufficient to establish the

nonmoving party’s claim or defense. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

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must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving

party to support its motion with “a separate concise statement of material

facts as to which the moving party contends there is no genuine issue for

trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a separate,

numbered paragraph and supported by a specific citation to the record.” Id.

When such a motion is made, any party opposing summary judgment must

file a response to each fact set forth by the movant in the manner provided in

Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made

[and] . . . supported as provided in [Tennessee Rule 56],” to survive summary

judgment, the nonmoving party “may not rest upon the mere allegations or

denials of [its] pleading,” but must respond, and by affidavits or one of the

other means provided in Tennessee Rule 56, “set forth specific facts” at the

summary judgment stage “showing that there is a genuine issue for trial.”

Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than simply

show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. [v. Zenith Radio Corp.], 475 U.S. [574,] 586,

106 S.Ct. 1348 [89 L.Ed.2d 538 (1986)]. The nonmoving party must

demonstrate the existence of specific facts in the record which could lead a

rational trier of fact to find in favor of the nonmoving party. If a summary

judgment motion is filed before adequate time for discovery has been

provided, the nonmoving party may seek a continuance to engage in

additional discovery as provided in Tennessee Rule 56.07. However, after

adequate time for discovery has been provided, summary judgment should

be granted if the nonmoving party’s evidence at the summary judgment stage

is insufficient to establish the existence of a genuine issue of material fact for

trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the

nonmoving party comes forward with at the summary judgment stage, not on

hypothetical evidence that theoretically could be adduced, despite the

passage of discovery deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015).

We first address whether the Trial Court erred in holding that Plaintiff’s FELA claim

is precluded by FRSA. Plaintiff argues that FRSA supplements and is complementary to

FELA—therefore, the former statute does not preclude the latter. Defendant argues in

response that declining to find preclusion would “upset the apple cart” and pose a risk to

national uniformity in rail safety rules. Both sides contend with the POM Wonderful case

by the United States Supreme Court, which addresses preclusion and federal statutory

conflict. Plaintiff contends that the reasoning of POM Wonderful, whereby no preclusion

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was found between the two federal statutes at issue there, extends to the appeal at bar. In

his reply brief, Plaintiff states further that “[b]ecause the FELA is the exclusive remedy by

which a railroad employee may recover against his employer for on-the-job injuries, if a

railroad worker’s injury claims are deemed to be precluded by the FRSA, such worker has

no recourse for the injuries he or she received as a result of the railroad’s negligence.”

Defendant argues in turn that POM Wonderful has no application to the specific statutes at

issue here.

In POM Wonderful, the POM Wonderful company sued Coca-Cola under the

Lanham Act for misleading labeling. 573 U.S. at 106. The Court of Appeals for the Ninth

Circuit held that POM Wonderful’s claim under the Lanham Act was precluded by the

Federal Food, Drug, and Cosmetic Act. Id. On appeal to the United States Supreme Court,

the nation’s highest court disagreed with the Ninth Circuit’s reasoning. Id. The court

observed that “[n]othing in the text, history, or structure of the FDCA or the Lanham Act

shows the congressional purpose or design to forbid these suits.” Id. The court stated

further that “neither the Lanham Act nor the FDCA, in express terms, forbids or limits

Lanham Act claims challenging labels that are regulated by the FDCA.” Id. at 113.

Continuing its discussion, the court stated 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. at 115.

Considering the distinct though complementary purposes of the laws, the court noted that

“[a]lthough both statutes touch on food and beverage labeling, the Lanham Act protects

commercial interests against unfair competition, while the FDCA protects public health

and safety.” Id. Regarding Coca-Cola’s argument that preclusion was necessary to ensure

national uniformity, the court stated:

[I]t is far from clear that Coca-Cola’s assertions about national uniformity in

fact reflect the congressional design. Although the application of a federal

statute such as the Lanham Act 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 to ensure fair competition. 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 the FDCA’s pre-emption

provision. 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.

POM Wonderful, 573 U.S. at 117. Thus, the Supreme Court reversed the Court of Appeals

for the Ninth Circuit. Id. at 121.

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In the present matter, the statutes subject to the preclusion analysis are different

from those of POM Wonderful. One is FELA, which was enacted in 1908 to allow injured

railroad employees to bring claims for on-the-job injuries. The U.S. Supreme Court has

summarized FELA succinctly: “FELA’s language is straightforward: Railroads are made

answerable in damages for an employee’s ‘injury or death resulting in whole or in part

from [carrier] negligence.’ 45 U.S.C. § 51.” CSX Transp., Inc. v. McBride, 564 U.S. 685,

703, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011). The other statute at issue, which Defendant

argues precludes Plaintiff’s FELA claim, is FRSA. Enacted in 1970, FRSA promotes

railroad safety. Under the authority of FRSA, the Federal Railroad Administration

(“FRA”) prescribes regulations for railroad safety. In one seminal pre-POM Wonderful

case from the Sixth Circuit Court of Appeals, FRSA was described as follows:

The FRSA’s purpose is “to promote safety in every area of railroad

operations and reduce railroad-related accidents and incidents.” Norfolk S.

Ry. Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 146 L.Ed.2d 374

(2000) (quoting 49 U.S.C. § 20101). The FRSA authorizes the Secretary of

Transportation (“Secretary”) to “prescribe regulations and issue orders for

every area of railroad safety.” Id. (quoting 49 U.S.C. § 20103(a)). Under

the FRSA’s express preemption provision, “[l]aws, regulations, and orders

related to railroad safety . . . shall be nationally uniform to the extent

practicable.” 49 U.S.C. § 20106(a)(1). “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). A state-law negligence action is “covered” and therefore

preempted if a FRSA regulation “substantially subsume[s]” the subject

matter of the suit. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113

S.Ct. 1732, 123 L.Ed.2d 387 (1993). This provision explicitly preempts only

State laws, regulations, and orders; it does not mention other federal safety

standards.

Nickels v. Grand Truck Western R.R., Inc., 560 F.3d 426, 429 (6th Cir. 2009).

In Nickels, rail workers sued for injuries sustained from years of walking on

oversized ballast. Id. at 428. The Nickels court considered: “(1) whether a FELA claim is

precluded if the same claim would be preempted by the FRSA if brought as a state-law

negligence action; and (2) if so, whether the subject of these plaintiffs’ claims has been

covered by a FRSA regulation. We answer both questions in the affirmative.” Id. at 429-

30. The court stated that “any exposure to conflicting standards undermines uniformity,”

and that “[t]he plaintiffs’ claims are precluded by the FRSA if they would have been

preempted if brought by a non-employee under state law.” Id. at 430. The Nickels court

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concluded: “Because 49 C.F.R. § 213.103 covers the issue of ballast size and precludes the

plaintiffs’ FELA claims, we AFFIRM the grants of summary judgment to the railroads.”

Id. at 433.1

In a pre-POM Wonderful opinion by this Court concerning FELA/FRSA preclusion,

we stated that “[d]espite Appellant’s argument that the reasoning in Nickels is flawed, it is

beyond dispute that Tennessee has adopted the Nickels analysis in cases involving the

defense of preclusion or preemption of claims brought by FELA plaintiffs.” Ward v.

Illinois Cent. R. Co., No. W2012-01839-COA-R3-CV, 2013 WL 3128974, at *9 (Tenn.

Ct. App. June 20, 2013), perm. app. denied Nov. 14, 2013. Several other jurisdictions have

continued to be guided by Nickels. In 2021, the U.S. District Court for the Eastern District

of Kentucky stated that “the Court finds that Nickels still governs the relationship between

the FRSA and the FELA—the FRSA precludes a FELA claim when an FRA regulation

covers the subject matter of the claim, and the railroad has complied with that regulation.”

Norfolk So. Ry. Co. v. Tobergte, No. 5:18-207-KKC, 2021 WL 400476, at *8 (E.D. Ky.

Feb. 4, 2021). The court stated further: “No matter how persuasive the Court may find the

reasoning in POM Wonderful as applied to this instant case, the Court is hesitant to overturn

established and binding Sixth Circuit precedent, absent further guidance from the Sixth

Circuit.” Id. In addition, Defendant has filed supplemental authority with this Court, Van

Buren v. Kansas City Southern Ry. Co., No. 55,928-CA, --- So.3d ----, 2024 WL 4830496

(La. App. 2 Cir. Nov. 20, 2024), a Louisiana case which affirmed dismissal of FELA claims

as precluded by FRSA and observed that “earlier jurisprudence almost unanimously found

preclusion. POM Wonderful arose in a context totally removed from the safety concerns

of FRSA, and the cases since then have been divided whether to keep or jettison the

preclusion.” Id. at *4.

However, a growing number of jurisdictions have taken a different view. In these

jurisdictions, POM Wonderful has led to a shift away from Nickels and progeny. For

instance, in one case, the U.S. District Court for the Western District of Missouri declined

to find that a FELA claim was precluded by FRSA, discussing as follows:

The parties here dispute the significance and result of applying the

POM Wonderful framework to the FRSA’s preclusive effect or lack thereof

1

We note the dissent in Nickels by Judge John Rogers, stating in part that “[t]he Supreme Court’s analysis

in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), the

seminal FRSA preemption case, strongly suggests that the FRSA regulation in this case does not preclude

an FELA action.” Nickels, 560 F.3d at 433. “In that case the Supreme Court held that a state tort action

for wrongful death, to the extent that it was based on a train’s traveling at excessive speed, was preempted

by FRSA train-speed regulations.” Id. at 434. Judge Rogers stated that “[u]nlike the regulation at issue in

Easterwood, the FRSA regulation is a floor that guarantees a minimum level of safety and there are many

ways that the railroad can meet the standard.” Id. at 435.

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over FELA. Webb correctly notes that by the FRSA’s plain terms, the

FRSA’s preemption provision only applies to state laws, rather than federal

laws. 49 U.S.C. § 20106(a)(2). However, the lack of express preemption

language in the FRSA, while relevant, is likely not definitive. See Jones v.

BNSF Ry. Co., 306 F. Supp.3d 1060, 1067 (C.D. Ill. 2017); Henderson v.

Amtrak, 87 F.Supp.3d 610, 616-618 (S.D.N.Y. 2015); Norfolk S. Ry. Co. v.

Hartry, 307 Ga. 566, 837 S.E.2d 303, 307-308 (Ga. 2019).

The crux of the arguments by both UPRR and Webb revolve around

whether or not the Waymire [v. Norfolk and Western Ry. Co., 218 F.3d 773

(7th Cir. 2000)] line of reasoning—finding that FELA must be precluded by

the FRSA to effectuate the uniformity of railroad safety regulation—should

be reconsidered in light of POM Wonderful and more recent cases. UPRR

contends that decisions against the FRSA’s preclusive effect either ignore or

downplay a clear FRSA mandate to create a national, uniform set of laws and

regulations governing rail safety, and that the FRSA expressly supplements

FELA. Furthermore, UPRR argues that allowing a FELA claim to go

forward with a standard of care higher than an FRSA regulation would

eviscerate the statutory scheme, undermining the FRA’s judgment on

railroad safety issues on a case-by-case basis.

This Court is unpersuaded by this argument, because the FRSA and

FELA act complementary to one another, rather than in opposition. The

FRSA seeks to enhance safety in “every area of railroad operations,” and

protects the public as well as railroad workers. Madden [v. Anton Antonov

& AV Transp., Inc.], 156 F. Supp.3d [1011,] 1021 [(D. Neb. 2015)]; 49

U.S.C. § 20101. The FRSA gives the Secretary of Transportation the

authority to “prescribe regulations and issue orders for every area of railroad

safety,” through national, comprehensive regulatory standards. Jones, 306

F. Supp.3d at 1069 (quoting 49 U.S.C. § 20103(a)). FELA, on the other

hand, deals solely with the safety of railroad workers and provides a private

cause of action through the common law of negligence. Id. The court in

Madden found that:

FRSA was not created to provide uniformity for the

sake of uniformity. The statute’s stated purpose is to enhance

railroad safety and reduce accidents. 49 U.S.C. § 20101. And

allowing safety related suits under FELA will enhance, rather

than impede, that purpose. FRSA regulations provide

comprehensive minimum safety standards that apply to a broad

range of situations. However, a railroad’s conduct may comply

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with those standards, yet still fall below the level of ordinary

care expected of any reasonable person. And at least as to

railroad employees, FELA suits serve to ferret out such

situations that might otherwise evade the attention of

regulators or that are less amenable to uniform, regulatory

solutions. This enhances safety by providing additional

incentives for railroads to conduct their operations safely.

Madden, 156 F.Supp.3d at 1020-21. Ultimately, this understanding aligns

with the Eighth Circuit’s concern in Cowden[ v. BNSF Ry. Co., 690 F.3d 884

(8th Cir. 2012)]: the FRSA regulation[s] are intended to alleviate the

“patchwork effect” of each state applying its own set of analogous safety

regulation, and to that end, it is not apparent how allowing negligence claims

by employees under FELA would threaten the purpose of the FRSA.

It is further worth noting the trend of cases ruling on the FRSA’s

preclusive effect over FELA since the POM Wonderful decision has been to

find that FELA is not precluded. See, e.g., Jones, 306 F.Supp.3d at 1067-70

(FELA claim for failure to maintain track not precluded by FRSA regulation

covering the same subject matter); Bratton v. Kansas City Southern Ry. Co.,

2015 WL 789127, at *1-2 (W.D. La. 2015) (negligent training/certification

claim under FELA not precluded by FRSA); Henderson v. Nat’l R.R.

Passenger Corp., 87 F.Supp.3d 610, 611-12, 615-22 (S.D.N.Y. 2015) (FELA

claim regarding defendant’s failure to protect plaintiff from approaching

train was not precluded by FRSA); Madden, 156 F.Supp.3d at 1018-19, 22

(plaintiff’s FELA claim for failure to provide additional warning devices at

railroad crossing was not precluded by FRSA); Meachen v. Iowa Pacific

Holdings, 2016 WL 7826660, at *4 (D. Mass. 2016) (denying defendant’s

motion for summary judgment, holding that the FRSA does not preclude

FELA claims); Hanaburgh v. Metro-North Commuter R.R., 2015 WL

1267145, at *4-5 (S.D.N.Y. 2015).

***

To summarize, this Court finds that Webb’s FELA claim is not

precluded by the FRSA as a matter of law. While there are varied rulings on

the issue, this Court finds that the FRSA and FELA act as complementary

laws, and that allowing FELA claims does not threaten the uniformity of

FRSA regulations or hinder the overall objectives of the FRSA.

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Webb v. Union Pac. R. Co., No. 2:19-cv-04075-MDH, 2020 WL 4589713, at *4-6 (W.D.

Mo. Aug. 10, 2020).

In one scholarly piece by Dominic G. Biffignani in the Missouri Law Review,

Pomegranates and Railroads: Why POM Wonderful Suggests that the Federal Railroad

Safety Act Should Never Preclude Federal Employers Liability Act Claims, 86 MO. L.

REV. 903 (2021), the author discussed the national trends of the FELA/FRSA preclusion

issue, noting that “the majority of jurisdictions agree that FELA claims should never be

precluded by FRSA, even where the regulations ‘cover’ the subject matter of the FELA

claim,” Id. at 926 (footnote omitted), while acknowledging that “FRSA’s preclusive effect

on FELA claims is still a contested legal issue in need of a uniform solution.” Id. at 927.

Thus, there is a split of authority, and we have found no post-POM Wonderful, controlling

Tennessee authority on FELA/FRSA preclusion.

Defendant argues that FRA’s regulations are a product of its expertise, and it is

beyond a local jury’s ambit to tinker with those regulations. Defendant offers as an

example a claim brought by a rail worker based on a train’s alleged excessive speed.

Defendant states that, to a layman, reducing speed might seem like the inherent safer

choice. In fact, Defendant asserts, unduly slowing down and speeding up may increase

other risks like derailment. In essence, Defendant contends that preclusion protects the

uniformity of well-considered regulations grounded in FRA’s expertise against a

patchwork of local standards.

We find Defendant’s arguments unpersuasive. FRA’s issuance of regulations is in

no sense dependent upon local juries. For some time post Pom Wonderful, a growing

number of jurisdictions have declined to find preclusion, yet there is no suggestion that

FRSA’s regulatory scheme has collapsed because of this trend. Neither are FRA’s

regulations the be-all, end-all of a railroad company’s duty. The regulations constitute a

floor, not a ceiling. As Plaintiff puts it in his brief, “[a]ssuming CSX complied with the

minimum FRA standards does not relieve CSX of its duty to provide Rouzer with his

federal right to a reasonably safe place to work.” We agree. The relevant standard is that

of a railroad company’s duty to provide a safe workplace. Juries across the country are

routinely instructed in duty and then tasked with finding whether that duty was breached.

It may well be that a railroad company’s conduct has, notwithstanding its adherence to

minimal FRA regulations, fallen short of its duty of care to an employee under FELA.

Defendant’s concern that declining to find that FRSA precludes FELA risks

destroying FRSA’s national rail regulatory scheme is hypothetical at best. By contrast, the

consequences of preclusion to FELA are concrete and palpable. The instant case is an

illustration—preclusion means, in effect, that Plaintiff cannot seek redress under FELA for

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his on-the-job injury.2 Thus, declining to find preclusion allows FELA to continue

operating toward the redressive ends for which it was passed by Congress. On the other

hand, finding that FRSA precludes FELA wholly undermines FELA, at least with respect

to rail employees like Plaintiff. Both FELA and FRSA ultimately are concerned with rail

safety. In the case of FRSA, the adoption of regulations establishes a basic level of safety

to minimize the occurrence of accidents in the first place. Meanwhile, FELA provides a

means for railroad workers to seek redress when they are injured on the job. Neither statute

suffers from the operation of the other.

While both FELA and the later-passed FRSA are concerned with rail safety, FELA

does not have to “make way” for FRSA. The statutes are complementary, not at odds. As

the United States Supreme Court stated, “[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.” POM Wonderful, 573

U.S. at 115. It is true that the statutes at issue in POM Wonderful are different from those

at issue in the current matter. Even still, we find the analysis from the nation’s highest

court controlling. POM Wonderful did not say “when the two statutes involved in this

case” but instead used the inclusive language of “when two statutes . . . .” Since FELA

and FRSA complement one another, and nothing in the statutory text or in history demands

preclusion, we decline to show disregard for the congressional design by inferring

preclusion nonetheless. In the past, Tennessee has been guided by Nickels, which stood

for preclusion. However, Nickels predates POM Wonderful. As noted by the Trial Court,

“Defendant does rely on the 6th Circuit for support which refutes the analysis established

in POM Wonderful.” The problem with this is that lower courts have neither the ability

nor the right to “refute” the analysis of the Supreme Court. The language of POM

Wonderful is clear and we are required to apply it. In view of the United States Supreme

Court’s clarifying opinion in POM Wonderful, we hold that Plaintiff’s FELA claim is not

precluded by FRSA. We, therefore, reverse the Trial Court’s grant of summary judgment

to Defendant, and remand for proceedings consistent with this Opinion.

We next address whether the Trial Court erred in dismissing Plaintiff’s claim rooted

in Worsham’s alleged negligence. The Trial Court ruled that “[t]he preclusion argument

is dispositive of the entire case.” As we reverse the Trial Court on the preclusion issue and

that was its sole rationale, we reverse the Trial Court’s judgment regarding Plaintiff’s claim

rooted in Worsham’s alleged negligence as well.

Lastly, Defendant asserts that if we reverse the Trial Court, Defendant’s previously

raised arguments for summary judgment in addition to preclusion should be considered by

2

We take no position on the merits of Plaintiff’s claim.

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the Trial Court. Defendant is correct, and it may pursue these additional arguments for

summary judgment on remand.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the Trial

Court for collection of the costs below and further proceedings consistent with this

Opinion. The costs on appeal are assessed against the Appellee, CSX Transportation, Inc.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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