Sean Van Buren v. Kansas City Southern Railway Company

Judgment rendered November 20, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,928-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

SEAN VAN BUREN Plaintiff-Appellant

versus

KANSAS CITY SOUTHERN Defendant-Appellee
RAILWAY COMPANY

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Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 633,327

Honorable Michael A. Pitman, Judge

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SHERMAN & LACEY, LLP Counsel for Appellant
By: Colin D. Sherman

CHRISTY & FERGUSON LAW FIRM
By: C.E. Sorey, II

DAVIDSON, MEAUX, SONNIER, Counsel for Appellee
MCELLIGOTT, FONTENOT, GIDEON
& EDWARDS, LLP
By: Kevin M. Dills
Kyle L. Gideon
Jami L. Ishee

*****

Before STEPHENS, THOMPSON, and ELLENDER, JJ.

ELLENDER, J.

Sean Van Buren appeals a summary judgment finding that his claim

against his employer, Kansas City Southern Railway (“KCS”), under the

Federal Employer’s Liability Act (“FELA”) was precluded by another

federal statute, the Federal Railroad Safety Act (“FRSA”), and dismissing

his claim. For the reasons expressed, we affirm.

PROCEDURAL BACKGROUND

Van Buren was employed as a carman by KCS. In June 2019 he was

making repairs to a railcar in the Shreveport railyard. Stepping away from

the car, he slipped on loose ballast (the gravel or rocks that provide support

and drainage for a railroad track). As a result, he fell and allegedly injured

his shoulder, back, and neck. In a deposition, Van Buren stated this ballast

was not properly stacked, creating an unsafe walking surface.

Van Buren filed this suit, in the First Judicial District Court, seeking

damages under FELA, 45 U.S.C. § 51, and demanding a jury trial. KCS

immediately admitted the claim was governed by FELA but contended it

was preempted by other federal regulations and laws.

KCS filed this motion for summary judgment again conceding that

Van Buren’s claim was under FELA but arguing it was preempted by FRSA,

49 U.S.C. § 20106, which gives federal regulations supremacy over state law

and common-law claims, and by a federal regulation, 49 C.F.R. § 213.103,

which specifically governs the use of ballast around railroad tracks. In such

situations, a FELA claim was precluded, Nickels v. Grand Trunk W. R.R.,

560 F.3d 426 (6 Cir. 2009), cert. denied, 558 U.S. 1147, 130 S. Ct. 1136

(2010); Harrison v. BNSF Ry. Co., 508 S.W. 3d 331 (Tex. App.-Ft. Worth

2014). On the merits, KCS attached the affidavit of David Brookings, a

professional engineer and railroad inspector who found no violation of any

Federal Railroad Administration regulations and concluded the area around

these tracks was reasonably safe.

Van Buren opposed the motion, generally arguing that FELA was

remedial and should be broadly construed to grant relief, that jury findings

were crucial, and hence summary judgment was not appropriate. Further, a

recent Supreme Court case had reordered the traditional notion of

preemption. POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 134 S.

Ct. 2228 (2014), was a claim under the Lanham Act, which allows one

competitor to sue another for unfair competition arising from false or

misleading product descriptions. The defendant, however, argued the

Federal Food, Drug, and Cosmetic Act governed food and beverage labeling

and, thus, preempted a private, Lanham Act claim. The lower courts agreed

with the defendant, but the Supreme Court reversed, holding that the issue

was not preemption but preclusion, that neither federal act prohibited the

operation of any other federal acts, and the two must be treated as

complementary. From this theory, Van Buren argued that nothing in FRSA

prohibited an action under FELA, or vice versa, so the FELA suit should

proceed. He also argued that two Federal courts in Louisiana have denied

summary judgments when the defendants argued FRSA precluded a personal

injury suit under FELA, Barritt v. Union Pacific R.R. Co., 2018 WL

4343418 (W.D. La. 9/11/18); Bratton v. Kansas City S. Ry. Co., 2015 WL

789127 (W.D. La. 2/20/15). On the merits, Van Buren attached several

video depositions in which his coworkers said the ballast was poorly

maintained and KCS did nothing despite repeated complaints.
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After a hearing in July 2023, the district court granted summary

judgment in favor of KCS. The court stated in oral reasons that the cases

cited by KCS were directly on point, and that POM Wonderful was not a

railroad case. Van Buren appealed, raising three interrelated assignments of

error.

DISCUSSION

Van Buren asserts that the court erred in not applying the test and

reasoning articulated by the Supreme Court in POM Wonderful; in finding

Nickels and its progeny to be controlling law in Louisiana in the wake of

POM Wonderful; and in dismissing the action under the doctrine of

preclusion based on 49 C.F.R. § 213.103 (“Ballast; general”).

The thrust of the argument is that POM Wonderful “upended” the

doctrines of preclusion and preemption by holding that two federal statutes

will not preclude each other unless expressly intended to do so by Congress;

by this standard, FRSA does not preclude a negligence claim made under

FELA. Van Buren quotes the crux of the Supreme Court’s analysis in POM

Wonderful:

Congress did not enact a provision [in FDCA] addressing the
preclusion of other federal laws that might bear on food and
beverage labeling. This is powerful evidence that Congress did
not intend FDA oversight to be the exclusive means of ensuring
proper food and beverage labeling.

573 U.S. at 114, 134 S. Ct. at 2237.

Van Buren shows that, shortly after POM Wonderful, a U.S. District

Court in Nebraska held that FRSA and its regulations did not preclude

FELA claims in any circumstances, Madden v. Antonov, 156 F. Supp. 3d

1011 (D. Neb. 2015), creating solid precedent that the statutes are

complementary. He then shows that two U.S. District Courts in Louisiana
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have denied railroads’ motions for summary judgment on the issue. Bratton

v. Kansas City S. Ry. Co., supra, involved a claim of negligent certification

and training of locomotive engineers; Barritt v. Union Pacific R.R. Co.,

supra, addressed the condition of ballast alongside a track in Swartz, in

northeast Louisiana. These cases, he suggests, show the effect of POM

Wonderful in Louisiana. He also catalogs nine other federal and state court

opinions that have rejected preclusion. He concentrates on Jones v. BNSF

Ry. Co., 306 F. Supp. 3d 1060 (C.D. Ill. 2017), which rejected the defense of

preclusion and abandoned circuit precedent that had allowed it, Waymire v.

Norfolk & W. Ry. Co., 218 F. 3d 773 (7 Cir. 2000). He concludes that using

the POM Wonderful analysis, courts overwhelmingly find that Congress did

not intend FRSA to preclude FELA claims, so the judgment should be

reversed.

KCS responds that POM Wonderful had nothing to do with the

railroad industry and does not change the established analysis. FELA

regulates workplace injury claims brought by railroad employees against

their railroad employers, 45 U.S.C. § 51, and establishes a negligence-based

cause of action, Norfolk S. R. Co. v. Sorrell, 549 U.S. 158, 127 S. Ct. 799

(2007). By contrast, FRSA seeks to “promote safety in every area of

railroad operations,” 49 U.S.C. § 20101, and, under the rubric of national

uniformity, preempts any state laws that are incompatible with it, 49 U.S.C.

§ 20106 (a). The regulation pertaining to ballast, 49 C.F.R. § 213.103, is

specific, “substantially subsumes” the subject matter, and precludes FELA

claims. Specifically, Nickels v. Grand Trunk W. R.R. Co., supra, found

preclusion of a claim that the railroad used “large mainline ballast” instead

of “smaller yard ballast” in a high-traffic area; Harrison v. BNSF Ry. Co.,
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supra, found preclusion of a claim that the railroad used “oversized ballast

on a steep incline”; and Lybrand v. Union Pacific R. Co., 2012 WL 1436690

(E.D. Ark. 4/25/12), found preclusion of a claim for “walking on loose

ballast.” It then catalogs 14 other federal and state opinions reaching the

same conclusion, only one of which postdates POM Wonderful.

KCS also argues that regardless of whether preclusion applies,

summary judgment is proper because, on the documents presented, Van

Buren simply cannot create a genuine issue of material fact regarding

negligence. It cites Mr. Brookings’s expert opinion, which found no safety

violations, and argues that Van Buren’s witnesses raised only general and

self-serving complaints about the ballast; evidence of this kind is insufficient

to defeat the summary judgment, as shown in Alex v. BNSF Ry. Co., 12-462

(La. App. 3 Cir. 11/7/12), 103 So. 3d 1180. It asks the court to affirm.

On close consideration, we are constrained to agree with the argument

advanced by KCS and adopted by the district court. Despite the sweeping

result in POM Wonderful, the Supreme Court carefully premised its analysis

on three findings: (1) there was “no statutory text or established interpretive

principle” to support preclusion in either FDCA or the Lanham Act; (2)

nothing in the “text, history, or structure of [either statute] show[ed] a

congressional * * * design to forbid” Lanham Act suits; and (3) FDCA and

the Lanham Act complemented each other in the regulation of food and

beverage labels. 573 U.S. at 106, 134 S. Ct. at 2233.

The same considerations are not present here. The purpose of FRSA

is “to promote safety in every area of railroad operations and reduce

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

this purpose, it requires that “Laws, regulations, and orders related to
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railroad safety * * * shall be nationally uniform to the extent practicable.” 49

U.S.C. § 20106 (a)(1). Further, it requires the Secretary of Transportation to

“prescribe regulations * * * for every area of railroad safety.” 49 U.S.C. §

20103 (a). Under this authority, the Secretary of Transportation has

promulgated a regulation pertaining to ballast:

§ 213.103 Ballast; general

Unless it is otherwise structurally supported, all track shall be
supported by material which will —
(a) Transmit and distribute the load of the track and railroad
rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically
under dynamic loads imposed by railroad rolling equipment
and thermal stress exerted by the rails;
(c) Provide adequate drainage for the track;
(d) Maintain proper track crosslevel, surface, and alinement.

49 C.F.R. § 213.103.

Notably, FRSA contains a preemption clause: “A State may adopt or

continue in force a law, regulation, or order related to railroad safety or

security 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) (emphasis added). Although Federal-state preemption

is obviously not at issue here, the Supreme Court recognized the applicable

principles are “instructive insofar as they are designed to assess the

interaction of laws that bear on the same subject.” POM Wonderful, supra at

112, 134 S. Ct. at 2236. In other words, the statutory framework anticipates

that in matters of railroad safety, FRSA and the regulations issued pursuant

thereto will preclude or supersede other federal laws that may otherwise

confer rights on claimants. This includes personal-injury claims under

FELA.

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We also note that even after POM Wonderful, several courts have

continued to hold that FRSA and its regulations preclude FELA claims.

Spafford v. BNSF Ry. Co., 2016 WL 6560866 (Ariz. Super. 10/6/16), found

preclusion over a claim for occupational illness based on “size, slope,

composition, or construction of ballast.” Less factually apposite but

conceptually akin are cases like Wheeler v. CSX Transp. Inc., 2017 WL

3116701 (N.D. Ohio 7/21/17), which involved a claim of failure to install

required safety equipment on a locomotive; Schendel v. Duluth, 2014 WL

5365131 (Minn. Dist. Ct. 9/29/14), involving failure to install a proper

advance warning signal; and Kopplin v. Wisconsin Central Ltd., 2017 WL

7048811 (E.D. Wis. 10/17/17), involving a defect in the switching system.

The running theme in these cases is that under FELA, claimants may receive

different treatment, making the safety regulations established under FRSA

virtually meaningless. The Supreme Court disapproved this outcome in CSX

Transp. Inc. v. Easterwood, 507 U.S. 658, 113 S. Ct. 1732 (1993).

We have closely examined the cases from Louisiana’s Western

District and find them unpersuasive. The Bratton court held that “FRSA’s

preemption provision applies to state laws and not to FELA or any other

federal law,” a proposition that seems to contradict POM Wonderful’s

holding that the rules of preemption are “instructive insofar as they are

designed to assess the interaction of laws that bear on the same subject.”

573 U.S. at 112, 134 S. Ct. 2236. The Barritt court more carefully traced the

outlines of POM Wonderful but, citing the need for more motion practice in

the case, found a genuine issue whether the railroad did, in fact, comply with

track ballast regulations, and this obviously precluded summary judgment.

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In short, we do not find these cases negate the preclusion of FELA claims by

FRSA.

With this said, there is some merit to Van Buren’s argument. FELA is

deemed to have humanitarian and remedial goals and, as such, should be

broadly construed. CSX Transp. Inc. v. McBride, 564 U.S. 685, 131 S. Ct.

2630 (2011); Broussard v. Union Pacific R. Co., 29,769 (La. App. 2 Cir.

8/28/97), 700 So. 2d 542, writ denied, 97-2414 (La. 12/12/97), 704 So. 2d

1202. Congress enacted FELA in 1908; 62 years later, when it enacted

FRSA, it included a specific reference to state laws, regulations, or orders,

but was silent as to federal ones that might cover the same subject matter.

Still later, when the Supreme Court decided POM Wonderful, it lessened the

grip of preclusion as to complementary federal laws. Against this backdrop,

there is a certain appeal to saying that, on facts like these, FRSA should not

preclude the FELA claim. Nevertheless, 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. Without clearer

guidance from Congress or a higher court, we find more merit in applying

the preclusive principle implicit in 49 U.S.C. § 20106 (a)(2).

Because of our finding as to preclusion, KCS is entitled to summary

judgment as a matter of law. La. C.C.P. art. 966 (A)(3). We pretermit any

consideration of the underlying factual claims.

CONCLUSION

For the reasons expressed, the judgment is affirmed. Sean Van Buren

is to pay all costs.

AFFIRMED.
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