Hester v. CSX Transp., Inc., 94-60506

Decision Date21 August 1995
Docket NumberNo. 94-60506,94-60506
Citation61 F.3d 382
PartiesAlvia E. HESTER, Sr., and Brenda Hester, Individually and Brenda Hester as the Executor of the Estate of Alvia E. Hester, Jr., Deceased, Plaintiffs-Appellants, v. CSX TRANSPORTATION, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Mark D. Lumpkin, Biloxi, MS, William S. Guy, McComb, MS, for appellants.

Raymond L. Brown, W. Mark Edwards, Pascagoula, MS, for appellee.

William A. Brasher, St. Louis, MO, Stephen A. Trimble, Washington, DC, for amicus Ass'n of American Railroads.

Appeal from the United States District Court for the Southern District of Mississippi.

Before REAVLEY, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiffs-appellants Alvia Hester, Sr. and Brenda Hester (the Hesters) appeal an order of the district court granting defendant-appellee CSX Transportation's (CSX) motion for reconsideration, pursuant to which the district court reinstated the jury verdict in favor of CSX. We affirm.

Facts and Proceedings Below

On July 22, 1989, an automobile in which the Hesters' fourteen-year-old son was a passenger collided with a train operated by CSX at the Hatley Circle crossing in Orange Grove, Jackson County, Mississippi. The Hesters' son was killed in the accident. The Hesters filed a wrongful death suit against CSX in Mississippi state court; CSX removed the case to federal court on the basis of diversity of citizenship and then answered the complaint.

CSX subsequently was granted leave to amend its answer to raise the affirmative defense of federal preemption as to the Hesters' excessive speed and inadequate signalization claims. Thereafter, CSX moved for partial summary judgment as to these aspects of the Hesters' negligence claims. On September 25, 1992, the district court granted CSX's motion, finding that both the excessive speed and inadequate signalization claims were preempted by the Federal Rail Safety Act of 1970 (FRSA), 45 U.S.C. Sec. 421 et seq., and the Highway Safety Act of 1973 (HSA), 23 U.S.C. Sec. 130 et seq. Following entry of the district court's order, the Hesters moved for reconsideration and a stay of the proceedings in the case pending the Supreme Court's resolution of CSX Transportation, Inc. v. Easterwood. The district court denied the motion.

The case proceeded to trial on the Hesters' remaining theories of negligence. 1 The jury returned a verdict in favor of CSX, and the district court entered judgment for CSX on March 25, 1993. On April 5, 1993, the Hesters filed a motion for new trial, alleging that the district court erred in not staying proceedings until Easterwood had been decided and in admitting certain testimony of CSX's expert witness. On April 21, the Supreme Court issued its decision in Easterwood. As discussed more fully below, a crucial issue under Easterwood is whether federal funds have "participated" in upgrading the subject crossing; if they have, state law is preempted in certain respects. In a supplemental response to the Hesters' motion for new trial, CSX "conceded that no federal funds were actually used to upgrade the subject crossing." On June 7, 1993, the district court granted the Hesters' motion, determining that, "in the interest of justice, a new trial should be granted."

CSX then filed a motion for reconsideration of the order granting a new trial, asserting that federal funds had in fact been expended in the upgrading of Hatley Circle. The Hesters opposed this motion, and the district court held a hearing on January 27, 1994. Following the hearing, the district court directed the parties to provide further information on whether CSX had participated in diagnostic teams surveying railroad crossings in Mississippi; CSX entered a supplemental filing demonstrating that, contrary to its assertion at the January hearing, it had in fact participated in such diagnostic teams. On June 14, 1994, the district court filed an order determining that CSX had shown that it participated in diagnostic teams to prioritize railroad crossings in Mississippi for improvements and that federal funds were expended in upgrading the Hatley Circle crossing, as required by Easterwood. It therefore granted CSX's motion to reconsider and reinstated the original judgment. The Hesters thereafter timely appealed to this Court.


On appeal, the Hesters assert that the district court erred in holding that their inadequate signalization claims were preempted by the Supreme Court's decision in CSX Transportation, Inc. v. Easterwood, --- U.S. ----, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), arguing that CSX has not satisfied the preconditions necessary for preemption under Easterwood. The Hesters also claim error in the district court's admission of certain testimony of CSX's expert witness.

I. Federal Preemption of State Law Claims

In Easterwood, the Supreme Court considered whether the FRSA preempted the plaintiff's Georgia common law negligence claim that the railroad crossing at which her husband was killed had inadequate warning signals. 2 Under the FRSA, a state may "adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement." 45 U.S.C. Sec. 434 (emphasis added). In 1973, Congress enacted the HSA, which

"makes federal funds available to the States to improve grade crossings, in return for which the States must 'conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require ... protective devices, and establish and implement a schedule of projects for this purpose." Easterwood, --- U.S. at ----, 113 S.Ct. at 1737 (quoting 23 U.S.C. Sec. 130(d)).

The states' eligibility for and use of federal funds is governed by regulations promulgated by the Federal Highway Administration (FHWA). See generally 23 C.F.R. pts. 646, 655, 924, 1204. The issue before the Court in Easterwood was whether these regulations "covered the subject matter" of the plaintiff's state law claims and therefore preempted those claims. Easterwood, --- U.S. at ----, 113 S.Ct. at 1737.

The Court noted that the use of the term "covering" in the FRSA's express preemption clause implied a restrictive view of preemption, under which "pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law," and that the context of the provision, which "is both prefaced and succeeded by express saving clauses," manifested a "considerable solicitude for state law." Id. at ----, 113 S.Ct. at 1738. The Court thus held that general regulations that do not establish particular requirements governing the installation of warning devices at grade crossings do not cover the subject matter of state tort law and thus could not have preemptive effect. 3 Id. at ----, 113 S.Ct. at 1738-40.

The regulations set forth in 23 C.F.R. Sec. 646.214(b)(3) and (b)(4), however, do prescribe such particular requirements. 4 The Court therefore held that, where applicable, these regulations do preempt state law "[U]nder Secs. 646.214(b)(3) and (4), a project for the improvement of a grade crossing must either include an automatic gate or receive FHWA approval if federal funds 'participate in the installation of the [warning] devices.' Thus ... Secs. 646.214(b)(3) and (4) displace state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained.... In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary's regulations therefore cover the subject matter of state law which ... seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings." 5 Id. at ----, 113 S.Ct. at 1741 (footnote omitted).

Pursuant to Easterwood, the test we thus must apply is whether federal funds "participated" in the installation of "warning devices" at the Hatley Circle crossing. If they have, the Hesters' common law claims based on inadequate signalization are preempted.

CSX presented evidence, including Mississippi Department of Transportation (MDOT) records and the affidavit of Newton McCormick, the Office Engineer of the Construction Division of MDOT, showing that from 1981 to 1983 federal funds were approved and expended in the upgrading and installation of reflectorized crossbucks, advance warning signs, and advance pavement warning markings at the Hatley Circle crossing. Such passive warning devices fall within the regulations' definition of devices for which federal funds may be expended. 6 See 23 C.F.R. Sec. 646.204(i). Having reviewed the record evidence, we find that CSX has established that federal funds did in fact participate in the installation of warning devices at Hatley Circle. 7

The Hesters argue that there is no record evidence demonstrating that the Secretary made a determination that these passive warning devices were adequate to protect motorists at Hatley Circle. The statute and regulations preclude this argument. The regulations direct the Secretary to authorize the expenditure of federal funds only on projects that satisfy, inter alia, the requirements of federal law, specifically 23 U.S.C. Sec. 109. 8 See 23 C.F.R. Sec. 630.114(b). Under that section, "[n]o funds shall be approved for expenditure ... unless proper safety protective devices complying with safety standards determined by the Secretary at that time as being adequate shall be installed or be in operation at any highway and railroad grade crossing ..." 23 U.S.C.A. Sec. 109(e) (emphasis added). The fact that federal funds participated in the installation of the...

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