Pomegranates and Railroads: Why POM Wonderful Suggests that the Federal Railroad Safety Act Should Never Preclude Federal Employers Liability Act Claims.

• Author: Biffignani, Dominic G.

1. INTRODUCTION

   On September 30, 2010, Scott Schendel was the engineer on a locomotive heading southbound near Two Harbors, Minnesota. (1) His shift started early that morning--he clocked in at 4:30 a.m.--and the railroad wanted to make sure Schendel's locomotive returned to Two Harbors before his mandatory twelve-hour on-duty time limit expired. (2) At 4:05 p.m., however, disaster struck: Schendel's locomotive collided with a northbound train, causing catastrophic damage. (3) Three locomotives and fourteen rail cars derailed, resulting in $8.1 million in damages to railroad property. (4)

   Schendel's injuries were significant and lead to an extended stay at a local hospital. (5) To redress them, he sued his employer for negligence under the Federal Employers Liability Act ("FELA"), which gives railroad employees a federal cause of action in tort for injuries caused by their employers. (6) Despite this statutory cause of action, the Sixth Judicial District Court of Minnesota found that part of Schendel's FELA claim was precluded by the Federal Railroad Safety Act ("FRSA"), which allows the Federal Railroad Administration ("FRA"), but not private individuals, to set and enforce general railroad safety standards. (7) Thus, Schendel was barred from presenting to a jury several theories of his employer's negligence. (8)

   Schendel is one of dozens of railroad employees denied recovery on the theory of FRSA preclusion. Unlike other occupations, railroad employees are generally not covered under state worker's compensation statutes. (9) Instead, their sole form of recovery is an action under FELA. (10) When plaintiffs are precluded from bringing FELA claims, they lose their only method of compensation for injuries sustained as a result of their employers' negligence. (11)

   As the United States Supreme Court recently emphasized, congressional intent is the touchstone of proper conflict analysis between two federal statutes, and a close examination of the history of these two statutes reveals that Congress never intended FRSA to preclude FELA claims. (12) Analyzed through the lens of congressional intent, the conflict between FELA and FRSA disappears, as several lower courts have recently recognized. (13) Yet more broadly, lower state and federal courts remain severely divided on the question of FRSA preclusion. (14) Courts should heed the Supreme Court's recent guidance to follow congressional intent above all else and allow FELA plaintiffs, like Schendel, to maintain negligence claims against their employers, notwithstanding FRSA.

   This Note proceeds in three parts. Part II gives a brief history of FELA and FRSA, a summary of the doctrines of preemption and preclusion, and a summary of the genesis of the FRSA preclusion argument in federal and state courts. It concludes with a detailed analysis of the federal circuit court precedent which established FRSA preclusion over FELA claims for more than a decade. Part III provides an in-depth analysis of POM Wonderful v. Coca-Cola Co., which established a novel framework to resolve conflicts between two federal statutes or regulations. Part III also sets out a litany of post-POM cases that highlight lower courts' changed approach to analyzing FRSA's preclusive effect on FELA claims. Finally, Part IV evaluates the continued viability of FRSA preclusion in POMs wake, as well as continued conflict regarding the preclusion issue in three federal circuits.

2. LEGAL BACKGROUND

   1. FELA

      Congress enacted FELA in 1908 to address the fact that, "throughout the 1870's, 80's, and 90's, thousands of railroad workers were being killed and tens of thousands were being maimed annually in what increasingly came to be seen as a national tragedy, if not a national scandal." (15) Congress intended FELA to reduce injuries and death resulting from accidents on interstate railroads by "shifting] part of the 'human overhead' of doing business from employees to their employers." (16) Generally, FELA serves as railroad employees' sole remedy to recover for injuries sustained as a result of an employer's negligence. (17)

      FELA allows injured employees of any "common carrier by railroad" to recover against the railroad on a theory of negligence. (18) FELA grants concurrent jurisdiction to both state and federal courts. (19) Though FELA is a federal statute, its cause of action sounds in the theory of common-law negligence. (20) Therefore, plaintiffs "must offer evidence proving the common law elements of negligence, including duty, breach, foreseeability, and causation." (21) The scope of the railroads' liability extends to the negligence "of any of the officers, agents, or employees of such carrier" or negligence resulting from "defect or insufficiency... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." (22)

      In light of FELA's "humanitarian" purposes, courts have construed FELA liberally. (23) As such, courts apply a relaxed standard of causation to FELA claims, (24) requiring only proof that "employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." (25) In other words, FELA uses a pure comparative fault standard to measure negligence. (26) Additionally, subsequent amendments to the 1908 act abolished common-law tort defenses such as assumption of risk, the fellow-servant rule, and contributory negligence. (27) Furthermore, FELA claims arising out of violations of other, related statutes (such as the Federal Safety Appliance Act and Locomotive Inspection Act) hold the railroad strictly liable for injuries, such that an employee's contributory negligence cannot be used to diminish their recovery. (28) Subsequent amendments also prohibited FELA claims from being waived by contract. (29) Similarly, FELA claims are generally not arbitrable. (30)

      In sum, Congress intended FELA to have a broad scope in order to redress an increasing number of injuries sustained by railroad workers as the railroad industry expanded. (31) Courts have consistently construed FELA liberally in light of this remedial goal to allow railroad workers to bring causes of action under a pure comparative fault standard, thus maximizing the chances of recovery for injured employees. (32) Courts have further held that FELA should not be cut down by judicial inference or implication, citing Congress's remedial purposes. (33) As one court aptly put it, "In the wake of this juggernaut of language, consistently iterated and reiterated over the course of seven and one-half decades, it is not hard to figure out who wins the ties and who gets the benefits of the close calls" in FELA cases. (34)

   2. The Federal Railroad Safety Act

      The FRSA was enacted in 1970 to enhance railroad safety and reduce rail-related accidents. (35) Concerned with a steady increase in the number of said accidents over a decade-long period and increased scrutiny from media outlets, Congress held hearings on the need for a uniform regulatory framework for track, roadbed, and equipment safety. (36) Congress's initial inquiries into the overhaul of then-current railroad safety regulations were met with stark opposition from railroad management, labor unions, and state regulatory authorities. (37) The Secretary of Transportation--in an effort to curb criticism from these powerful and politically influential actors--appointed a Rail Safety Task Force in 1969, which concluded that track, roadbed, and equipment defects were equally as responsible for train accidents as was human error. (38) Additionally, the Task Force concluded existing federal and state regulations did not provide adequate safety standards. (39) The Task Force recommended that "broad federal regulatory authority over all areas of railroad safety be enacted"; (40) Congress agreed. (41)

      FRSA empowers the Secretary of Transportation to "prescribe regulations and issue orders for every area of railroad safety." (42) In turn, the Secretary acts through the FRA to promulgate regulations regarding railroad safety. (43) The FRA was established by the Department of Transportation Act of 1966. (44) The FRA has, and continues to employ, an informal rulemaking framework to draft these regulations. (45)

      Violating FRA regulations can result in a civil penalty, an injunction, or other appropriate action recommended by the Secretary. (46) Additionally, the Secretary can order compliance with a violated railroad safety regulation or prohibit an individual from performing safety-sensitive functions. (47) At the request of the Secretary, the Attorney General of the United States may bring an action in a United States District Court to use the above mechanisms of enforcement. (48)

      As with other regulatory agencies, the FRA has experienced intense scrutiny due to concerns regarding industry influence. (49) While the history of the railroad industry and the Interstate Commerce Commission ("ICC") (50) suggest industry influence is inevitable, new literature suggests that the railroad industry's power to obtain desired outcomes by shaping the FRA's rule-making process is far from conclusive. (51) Yet, concerns of inadequate resources and input from the railroad industry in the FRA's rule-making process continue to fuel accusations that the agency has been captured by the railroads and their supportive special interest groups. (52)

      FRSA contains an express preemption provision that provides in pertinent part: "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)... prescribes a regulation or issues an order covering the subject matter of the State requirement." (53) This provision enables the Secretary of Transportation (and their servient regulatory agencies) to assume the responsibility of creating uniform railroad safety regulations. Once the Secretary of Transportation enacts...