Berry, Michael v. Wisconsin Central Ltd. et al

Filing 50

OPINION AND ORDER denying 22 Motion for Partial Summary Judgment. Signed by District Judge William M. Conley on 5/9/2022. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL BERRY,
Plaintiff,

OPINION AND ORDER

v.
21-cv-220-wmc
WISCONSIN CENTRAL LTD. d/b/a
Canadian National Railway Co. or
Canadian National,
Defendant.
Plaintiff Michael Berry asserts claims against his employer Wisconsin Central Ltd.
(“WCL”), under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., for
injuries that he sustained after falling in a railroad yard on October 29, 2019, while working
as a railway conductor. Before the court is defendant WCL’s motion seeking partial
summary judgment on certain of plaintiff’s claims (or at least theories of liability) as
precluded by the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. WCL also
argues that other claims fail as a matter of law. (Dkt. #22.) For the reasons that follow,
the court rejects defendant’s arguments and will deny its motion.

UNDISPUTED FACTS1
During all times relevant to Michael Berry’s claims, he was working as a conductor
for WCL, a railroad company. On October 29, 2019, Berry and engineer Kevin Van Riper
were tasked with operating a train from Blair to Wisconsin Rapids, Wisconsin. After

Unless otherwise noted, the court finds the following facts material and undisputed when viewed
in the light most favorable to plaintiff as the nonmoving party.
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arriving in Wisconsin Rapids after nightfall, they were then to set out the cars from Blair
on a side track, pick new cars up, and transport the reconfigured train back to Blair. To
accomplish this, they “shoved” the train upon arrival, using what is known as a “reverse
train move” into the so-called “Tork” track at the Wisconsin Rapids railroad yard where
the Blair cars would be set out. As conductor, Berry “protected the point” of the shove by
riding the last railcar on the train, then counting down the cars as Van Riper reversed the
train into the Tork track.
However, once this maneuver was completed, Berry then began walking on the west
side of the track back toward the engine. Holding his lantern in his hand, Berry pointed
it in the direction he was walking, but unfortunately lost his footing and slipped beside the
train. At his deposition, Berry testified that he fell because of a combination of it being
dark, “the angle of the ground, the tie butts, the large ballast, the leaves, [and] the mud
that was under the ballast.” (Pl.’s Resp. to Def.’s PFOFs (dkt. #35) 4 (quoting Berry Dep.
(dkt. #36) 134-135).)2 Worse, in landing, Berry describes striking his lower back and hip
on a tree stump, which was located approximately four to six feet from the nearest rail.
At some point, train engineer Van Riper realized that Berry was taking longer to
return to the engine than typical and left the engine to check on him. Van Riper found

Defendant disputes much of plaintiff’s account at summary judgment, including to the extent
plaintiff proposed additional findings of facts in his response to defendant’s findings, rather than
proposing them in a separate filing. As a result, the court agrees with defendant that plaintiff failed
to follow the court’s established procedures for summary judgment submissions despite being
provided to both sides in the preliminary pretrial conference order. (See hyperlink at dkt. #9.)
Nonetheless, defendant not only had the same basic opportunity to reply to these additional
proposed findings, but did so in great detail. Accordingly, the court reviewed and accepts plaintiff’s
proposed findings as the non-moving party to the extent not otherwise objected to and reasonably
supported by the record despite not being set forth in a separate filing as strongly preferred.
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Berry and called for assistance. Zachary Dean, the trainmaster on duty in the yard at that
time, next responded to the scene, where he found Berry sitting beside the train. An
ambulance was then called, and Berry was transported to the hospital.3

OPINION
In its motion for summary judgment, defendant asserts that a number of plaintiff’s
claims (or parts of them) are precluded by the Federal Railroad Safety Act (“FRSA”), 49
U.S.C. § 20109. In addition to this principal argument, defendant also seeks summary
judgment on the basis that: (1) a stump was present fails as a matter of law because it did
not interfere with any of Berry’s trackside duties and, therefore, WCL cannot be held liable
under 49 C.F.R. § 213.37 as a matter of law; and (2) defendant cannot be liable for any
fall caused by wet leaves because FELA does not support a claim based on the “vagaries of
weather or climatic conditions.”

(Def.’s Opening Br. (dkt. #23) 11-14.)

The court

addresses each of these argument in turn below.

I. Federal Preclusion
Enacted in 1970, the FRSA contains the following preemption provision:
(1) Laws, regulations, and orders related to railroad safety and
laws, regulations, and orders related to railroad security shall
be nationally uniform to the extent practicable.

Defendant also submits a number of facts concerning its compliance with various regulations
enacted under the FRSA, including facts about frequency of yard inspections, as well as the training
and experience of the inspector. (Def.’s PFOFs (dkt. #25) ¶¶ 13-20.) Defendant further proposes
facts concerning the presence of leaves in the yard and the nature and location of the ballasts that
Berry contends contributed to his fall. (Id. ¶¶ 21-24.) However, the court has not recounted these
details in light of its determination that the FSRA does not preclude plaintiff’s claims as explained
below.
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(2) A State may adopt or continue in force a law, regulation,
or order related to railroad safety or security until the Secretary
of Transportation (with respect to railroad safety matters), or
the Secretary of Homeland Security (with respect to railroad
security matters), prescribes a regulation or issues an order
covering the subject matter of the State requirement. A State
may adopt or continue in force an additional or more stringent
law, regulation, or order related to railroad safety or security
when the law, regulation, or order-(A) is necessary to eliminate or reduce an essentially local
safety or security hazard;
(B) is not incompatible with a law, regulation, or order of the
United States Government; and
(C) does not unreasonably burden interstate commerce.
49 U.S.C.A. § 20106. While this provision preempts state law, including state tort law,
except under the normal exception set forth in (2) above, defendant acknowledges that the
provision does not preempt -- and, indeed, a federal statute cannot preempt -- another
federal statute. Thus, defendant’s “preemption” argument as to plaintiff’s federal claims
turns entirely on whether FRSA precludes application of or supersedes FELA where the
claims at issue implicate Federal Railroad Administration (“FRA”) regulations.
Specifically, defendant contends that any claims or theories of liability premised on
the frequency of visual inspections or failure to perform them properly, the training and
experience of the inspector, ballast size or slope are precluded because they implicate FRA
regulations. As support, defendant points to the Seventh Circuit’s conclusion in Waymire
v. Western Railway Company, 218 F.3d 773 (7th Cir. 2000), that an employee’s FELA claims
against a railway for an accident involving one of its trains were superseded by the FRSA
because the train’s speed and warning devices complied with both FRSA and FRA
regulations. In so holding, the court explained that unlike the “vast majority of courts
examining lawsuits arising out of automobile/train collisions do so under state law,” the

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case before it concerned the “interaction of two federal statutes.” Id. at 775. Finding “the
opinion of the Supreme Court [in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658
(1993)] on the subject of preemption of unsafe train speed claims” and other, similar
preemption cases issued by lower courts “instructive,” the Seventh Circuit was persuaded
that FELA had to be superseded to “uphold FRSA’s goal of uniformity.” Id. at 776.
In response, however, plaintiff directs this court to a later United States Supreme
Court decision in POM Wonderful LLC v. Coca-Cola Company, 573 U.S. 102 (2014), which
considered the interplay between two federal statutes, albeit not the ones at issue in this
case, and also addressed whether the one statute that creates a federal regulatory scheme
and expressly preempts state law necessarily precludes claims under (or otherwise
supersedes) another federal statute. However, in that case, the Supreme Court held that
the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 331, 343, does not preclude a
private party from bringing a claim challenging the mislabeling of food products under the
Lanham Act, 15 U.S.C. § 1125. POM Wonderful, 573 U.S. at 106. In so holding, the
Supreme Court initially explained that because the preemption provision in the FDCA -like that in the FRSA -- only preempts state law, the question before it was not one of
preemption, but rather of preclusion. Still, the Court noted that preemption “principles
are instructive insofar as they are designed to assess the interaction of laws that bear on
the same subject,” although obviously no “state-federal” balancing would be necessary. Id.
at 111-12. Even acknowledging this was at bottom a “statutory interpretation case,”
however, failed to answer fully whether the Court should “reconcile or harmonize the
statutes” as Coca-Cola urged in arguing for preclusion, contends, or “enforce both statutes

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in full unless there is a genuinely irreconcilable conflict” as POM Wonderful urged. Id. at
112-13.
Instead, in finding no preclusion, the Court was persuaded by the fact that: (1) the
FDCA does not expressly forbid or limit Lanham Act claims; and (2) the two statutes have
largely coexisted since the passage of the Lanham Act in 1946 without any action by
Congress to limit the Act’s reach out of concern that it interfered with the goals of the
FDCA.

Further, the Court concluded that “[b]y taking care to mandate express

preemption of some state laws, Congress if anything [was] indicat[ing] it did not intend
the FDCA to preclude requirements arising from other sources.” Id. at 114. Moreover,
the Court found each statute “has its own scope and purpose,” with (1) the Lanham Act
protecting “commercial interests” and (2) the FDCA protecting “public health and safety,”
and thus, finding either statute precluded the other “would show disregard for the
congressional design.” Id. at 115. Finally, while the Court found Congress intended
national uniformity in passing the FDCA, it also held that “[t]he centralization of FDCA
enforcement authority in the Federal Government does not indicate that Congress
intended to foreclose private enforcement of other federal statutes.” Id. at 117. As a result,
the Court held that allowing Lanham Act claims concerning food labeling to survive “is
quite different from [allowing] 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 preemption provision.” Id.
Still, the Seventh Circuit has not revisited its decision in Waymire since the United
States Supreme Court’s 2014 POM Wonderful decision. Nor have the parties directed the

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court to any other federal circuit court having considered whether a FELA claim is
precluded by FRSA and FRA regulations since POM Wonderful. Tellingly, however, a
number of district courts have relied on the Supreme Court’s reasoning in POM Wonderful
to reject similar preclusion challenges to FELA claims, distinguishing pre-2014 circuit court
decisions, including that of the Seventh Circuit in Waymire. See Webb v. Union Pac. R. Co.,
No. 2:19-cv-04075-MDH, at *5 (W.D. Mo. Aug. 8. 2020) (“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.”); Henderson v. Nat’l R.R. Passenger
Corp., 87 F. Supp. 3d 610, 616 (S.D.N.Y. 2015) (“This Court respectfully disagrees with
the decisions in Waymire, Lane, and Nickels, all of which predate the Supreme Court's
[2014] decision in POM Wonderful, which is discussed further below.”); Madden v. Anton
Antonov & AV Transportation, Inc., 156 F. Supp. 3d 1011, 1020 (D. Neb. 2015) (“This
Court is not persuaded by the reasoning of Waymire or its progeny, and respectfully
declines to follow suit. Neither the plain text of FRSA nor its goal of national uniformity
demand preclusion of FELA claims. Rather, the text of FRSA and the purposes underlying
both it and FELA demand the opposite.” (citing POM Wonderful)).
In Jones v. BNSF Railway Company, 306 F. Supp. 3d 1060 (C. D. Ill. 2017), Judge
Darrow also recognized the Seventh Circuit’s holding in Waymire, while nonetheless
following the reasoning of the Supreme Court in POM Wonderful, concluding that the
FRSA does not preclude claims under FELA even when FRA railroad regulations are
implicated, like the inspection and ballast regulations at issue here. Id. at 1070. As was
Judge Darrow, this court also feels compelled to conclude that the Seventh Circuit’s

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reasoning in Waymire for finding preclusion no longer holds up in the face of POM
Wonderful. In particular, as Judge Darrow noted in Jones, the Seventh Circuit in Waymire
primarily relied on the need for national uniformity in finding that the FRSA superseded
FELA, but in doing so never considered the text of the two statutes, much less the purpose,
structure and enforcement mechanisms underlying each, were complementary, as the
Supreme Court instructed to do in POM Wonderful in conducting preclusion analysis. Jones,
306 F. Supp. at 1068-69. Furthermore, as Judge Darrow also observed, the Supreme Court
in POM Wonderful expressly rejected the importance of national uniformity in a preclusion
analysis between two federal statutes. Id. at 1069. As such, the court agrees with Judge
Darrow and the other district courts, holding that FRSA and its regulations does not
preclude FELA claims and as such, rejects defendant’s argument to the contrary.4

II. Other Arguments
In a cursory fashion, defendant raises two additional bases for partial summary
judgment, which really attack only aspects of plaintiff’s FELA claim in an attempt to
narrow it. First, plaintiff argues that because the stump that plaintiff fell on “did not cause
him to fall—he did not trip or slip on it—nor did it affect his trackside duties in any way,”

As mentioned above, the Seventh Circuit has not had the opportunity to revisit the issue of FELA
preemption since the Supreme Court issued its decision in POM Wonderful. However, the Seventh
Circuit recognized the importance of the holding in POM Wonderful in considering a preclusion
argument in a different statutory context. See Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1157 (7th
Cir. 2016), rev’d on other grounds, 138 S. Ct. 1612 (2018) (“Moreover, ‘[w]hen two statutes
complement each other’—that is, ‘each has its own scope and purpose’ and imposes ‘different
requirements and protections’—finding that one precludes the other would flout the congressional
design.” (quoting POM Wonderful, 134 S. Ct. 2228, 2238). Still, because the Seventh Circuit has
not confronted the holding of POM Wonderful in the context of a FELA claim, the court would
consider certifying this case for interlocutory appeal should the parties jointly move under 28 U.S.C.
§ 1292(b).
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it being there did not violate 49 C.F.R. § 213.37, which addresses a railroad company’s
obligations to control vegetation. (Def.’s Opening Br. (dkt. #23) 11.) As an initial matter,
even though plaintiff mentions various regulations in his complaint, since he is pursuing
FELA claims, it is not clear what, if any, role FRA regulations should play in establishing a
violation of FELA for the reasons just discussed above.5 Regardless, as described above,
plaintiff contends that he fell because of a combination of it being dark, “the angle of the
ground, the tie butts, the large ballast, the leaves, [and] the mud that was under the
ballast.” (Pl.’s Resp. to Def.’s PFOFs (dkt. #35) 4 (quoting Berry Dep. (dkt. #36) 134135).) The plaintiff does not contend the stump caused or even contributed to his tripping,
only that he fell onto it, and as a result, it substantially contributed to his injuries. As such,
this portion of the motion simply fails to confront the actual claim plaintiff is pursuing
under any theory of liability. Therefore, the court will deny this motion, albeit without
prejudice to defendant seeking to constrain in motions in limine or otherwise any argument
that the stump’s location is somehow relevant to a finding of liability.6
Second, defendant contends that plaintiff cannot rely on wet leaves as a basis for
pursuing his FELA claims, directing the court to a Tennessee Court of Appeals case for the

There is no private right of action for violations of FRA regulations or, at least, plaintiff has not
directed the court to any basis for finding such a right. Instead, an injured party may bring a claim
under FELA, as plaintiff has done here. See Schmitz v. Canadian Pac. Ry. Co., 454 F.3d 678, 682
(7th Cir. 2006) (“The Supreme Court held in Kernan [v. American Dredging Co., 355 U.S. 426
(1958)] that when an employer governed by FELA violates a statutory or regulatory standard and
its employee is injured as a result, the employer may be held liable under FELA—even if the injury
is not the type against which the statute was meant to protect.”). The relevance, if any, to violations
of FRA regulations in bringing a claim under FELA can be addressed by the parties before trial.
5

Of course, this would not bar evidence of the stump’s presence being a contributing factor to the
severity of plaintiff’s injuries during the damages portion of any trial.
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proposition that “the temporary presence of leaves on the ground is not enough to impose
liability here because railroad companies have no control over the vagaries of the weather
or climatic conditions.” (Def.’s Opening Br. (dkt. #23) 13 (citing Turner v. Clinchfield R.R.
Co., 489 S.W.2d 257, 261 (Tenn. Ct. App. 1972)).) While the court agrees with plaintiff
that the presence of piles of wet leaves is distinguishable from the ice at issue in Turner, the
court nonetheless recognizes as defendant points out that “FELA does not make the
railroad an insurer against injuries.” Reardon v. Peoria & Pekin Union Ry., 26 F.3d 52, 55
(7th Cir. 1999). Accordingly, the court contemplates that the jury will be instructed on
the proper standard of liability under FELA, and it will be up to the jury to determine
whether defendant was negligent under that standard in failing to address piles of wet
leaves in the area surrounding the track, among other fact issues. As such, the court rejects
this basis for summary judgment as well without deciding on the possible relevance, if any,
of a regulation addressing the “vagaries of the weather.”
One final note:

in responding to defendant’s motion for summary judgment,

plaintiff devotes several pages describing the negligence standard at issue in FELA cases
and arguing for a more relaxed standard. The court declines to take up this issue in the
context of summary judgment, since it is not material to defendant’s motion. Nonetheless,
the parties should front this issue as appropriate, in motions in limine or other pretrial
briefing, as well as in their respective jury instruction submissions.

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ORDER
IT IS ORDERED that defendant Wisconsin Central Ltd.’s motion for partial
summary judgment (dkt. #11) is DENIED.
Entered this 9th day of May, 2022.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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