Rushing v. Kansas City So

REVISED SEPTEMBER 27, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________

No. 98-60590
_______________

WILLARD RUSHING and PATRICIA RUSHING,
Plaintiffs-Appellants,
VERSUS

KANSAS CITY SOUTHERN RAILWAY COMPANY,
Defendant-Appellee.
_________________________

Appeal from the United States District Court
for the Southern District of Mississippi
_________________________
August 30, 1999

Before KING, Chief Judge, SMITH and excessively, produce various noise and
BARKSDALE, Circuit Judges. vibration emissions. Specifically, the noise and
vibrations come from (1) cars colliding
JERRY E. SMITH, Circuit Judge: together to couple, (2) rail cars in motion, (3)
stationary and passing locomotives, and (4)
Willard and Patricia Rushing appeal the locomotive whistles.1
dismissal of their nuisance action brought
against Kansas City Southern Railway
Company (“KCS”). Concluding that the
district court took an over-expansive view of
federal preemption and overlooked genuine
issues of material fact in entering summary
judgment for KCS, we reverse and remand for
further proceedings.

I.
According to the summary judgment
record, the Rushings purchased their home
along KCS's “main line” railroad track, where
trains passed by only a couple of times each
day. In 1996, however, KCS built a switching
yard located about fifty-five feet from the
Rushings' property. The yard, a vital part of
KCS's successful operations, serves as a “hub”
for attaching and detaching rail cars to position
them in sequence to travel to various sites 1
Even though trains no longer use whistles, we
around the country. Allegedly, the switching use the term “whistles,” as do the parties, to refer
operations necessari ly, and perhaps to air horns and other audible warning devices.
 As part of the switchyard project, KCS Over the Rushings' objection, the
built a large earthen berm, topped with an magistrate judge granted KCS's motion to
acoustical noise barrier, to mitigate the noise allow Seidemann to measure sound levels on
emissions that might disturb area residents. the Rushings' property, to determine whether
The Rushings allege that the berm has failed to they complied with the federal regulations
eliminate the noise and does nothing to stop central to the preemption defense. Seidemann
the vibrations. After KCS began using the conducted his tests in conformity with NCA
switchyard, they claim to have experienced regulations during one evening, in the
“physical symptoms, anxiety, deteriorating Rushings’ presence. KCS timely designated
health, etc., resulting from the constant Seidemann as an expert witness and served the
vibration, exceedingly high noise, and violent Rushings with a copy of his “Expert Witness
shocks coming from the rail yard.” The Report” pursuant to FED. R. CIV. P.
shocks and vibrations also allegedly have 26(a)(2)(B). The report detailed the testing
caused their home to shift and crack. conducted, the methods employed, and the
results.
II.
The Rushings sued suit in state court, KCS moved for partial summary judgment
alleging a common law claim that the on the claims for excessive noise and
switchyard was a private nuisance.2 KCS vibrations. It asserted that the NCA
removed to federal court on the basis of preempted the noise claim stemming from rail
diversity jurisdiction. In an amended answer, car coupling activity; that the Federal Rail
KCS pleaded the affirmative defense of Safety Act of 1970 (“FRSA”), 49 U.S.C.
preemption. § 20101 et seq., preempted the claim based on
whistle blowing; and that, per Mississippi tort
In its initial pre-discovery disclosure, KCS law, the noise and vibrations complaints were
indicated that Dr. Michael Seidemann was an not actionable under a private nuisance theory,
industrial audiologist, expected to testify on because KCS's operation of the switching yard
sound measurements, taken both in the past is a public function.
and possibly in the future, of noise levels at the
switchyard, to establish that the sound KCS supported the NCA preemption claim
emissions originating in the yard complied with with an affidavit from Seidemann, describing
federal regulations promulgated pursuant to himself as “a forensic audiologist, licensed in
the Noise Control Act (“NCA”), 42 U.S.C. audiology by the Mississippi Council of
§ 4901 et seq. The regulations promulgated Advisors in Speech Pathology and
under the NCA, codified at 40 C.F.R. § 201.1 Audiology.” The affidavit also attested that
et seq., set maximum decibel (“dB”) levels for Seidemann had conducted his tests from points
train operations and provide the procedures to on the Rushings' property with the prescribed
follow in conducting sound-level testing to equipment, properly calibrated to ensure
establish NCA compliance. accuracy.
Seidemann conducted his tests in two-hour
shifts and measured a minimum of thirty car
couplings during each shift, as required by the
2
regulations. The affidavit explained that he
In their brief, the Rushings claim that they tested noise emissions originating from (1) rail
also allege negligence. KCS correctly points out cars in motion, (2) car couplings, (3)
that they do not. If, however, KCS implies that the stationary locomotives, and (4) passing
Rushings fail to state a nuisance claim by failing to
allege negligence, it is mistaken. See, e.g., locomotives. He concluded that the noise
McFarlane v. Niagra Falls, 150 N.E. 391, 391 emissions fell within the decibel limits
(N.Y. 1928) (Cardozo, J.) (“Nuisance as a concept established by the NCA regulations.
of law has more meanings than one. The primary
meaning does not involve the element of negligence In response, the Rushings filed a document
as one of its essential factors.”). entitled “Material Facts in Issue.” They

2
claimed factual disputes existed related to the money to employ someone to perform
Seidemann's qualifications to make the similar measurements of the noise levels that
“assertions” contained in his affidavit, the exist under conditions consistent with those in
conditions under which he tested, and his which they actually lived.” The motion
conclusion that the noise and vibrations fell indicated that supporting affidavits could be
within the NCA's limits. filed and that the supplementation would not
delay the trial that was over one hundred days
As evidence, the Rushings submitted only away. KCS opposed the motion, arguing that
affidavits executed by them in which they both the supplementation was untimely and that the
claimed that the noise levels and activity on the Rushings had failed to designate an expert
night Seidemann took his measurements were witness within the ordered time.
much lower than normal. They also attested
that the trains operated in a different manner The court granted KCS's motion for partial
than usual that night, such as not getting summary judgment based on its affirmative
running starts and not coupling multiple cars at defenses, reasoning that the NCA preempts the
the same time. In addition, they claimed that nuisance claim insofar as it is based on noise
the trains usually sounded their whistles related to the switching activities, relying on
excessively, and often with no apparent Seidemann's affidavit attesting that the noise
purpose. levels he measured fell within the applicable
regulatory maximums. The court also held
Twelve and fourteen days later, that the NCA preempts the claim related to
respectively, without seeking or securing the vibrations, because there is a direct correlation
court's permission, KCS filed two between the vibrations and the noise, and they
“supplements” to its summary judgment s t e m fr o m t h e s a m e r e g u l a t e d
motion. The first contained a copy of sourceSScoupling activities. After noting that
Seidemann's FED. R. CIV. P. 26 report that it the FRSA might occupy the field of
previously had sent to the Rushings. locomotive warning devices and railroad safety
Accompanying the report was Seidemann's regulation, the court found that it preempted
curriculum vitae (“CV”). The second the nuisance claim based on excessive
included another copy of his CV and an whistling because the trains whistled “in the
affidavit in which Seidemann emphasized his interest of safety” as they approached a grade
qualifications. KCS refers to these crossing and before moving backwards.
submissions as rebuttal evidence. Finally, the court refused to grant the
Rushings' motion to supplement their response
A month later, the Rushings moved to with EHS's findings, because they had failed
supplement their response with an affidavit timely to designate their expert and had not
from an employee of Employment Health moved for leave to designate out of time.3
Services (“EHS”), a company with expertise in
environmental noise, explaining the results of The Rushings moved for reconsideration of
their own tests. EHS measured sound levels the summary judgment, offering deposition
inside the house at a weighted sound level of testimony from their neighbors that KCS had
105dB, easily exceeding the 92dB permitted obtained just days before the ruling. They
by the NCA regulations for coupling activities. posited that they had not interviewed the
See 40 C.F.R. § 201.15.

The motion explained that the Rushings 3
KCS asserts that the court also “held that the
were not wealthy, and the testing was rather switching operations conducted by KCS are in the
expensive. “It was not until they read the public interest and, as a result, are privileged from
Railroad's position that reli ed upon civil prosecution.” Although the court noted that
Seidemann's measurements that did not KCS had made the argument and referenced it
comport with the conditions in which they again in its second order, it never addressed the
lived, that they decided that they would spend issue's merits.

3
affiants prior to the depositions but included KCS does not dispute that the Rushings
them in their disclosure simply because they state a nuisance claim; rather, it asserts
listed everyone who might have knowledge of affirmative defenses that entitle it to judgment
the situation. as a matter of law notwithstanding the
Rushings' prima facie claim. Of course,
KCS opposed reconsideration, because the summary judgment may be granted on this
motion did not present “newly discovered basis. But, because KCS bears the ultimate
evidence.” The court agreed and also refused burden of persuasion on its affirmative
to reconsider its exclusion of EHS's testimony, defenses, it must adduce evidence to support
referring again to the failure timely to each element of its defenses and demonstrate
designate the witness. The court concluded the lack of any genuine issue of material fact
that the motion merely reargued the merits of with regard thereto. See Exxon Corp. v.
summary judgment, which is inappropriate for Oxxford Clothes, Inc., 109 F.3d 1070, 1074
a motion to reconsider. (5th Cir.), cert. denied, 118 S. Ct. 299
(1997).4
III.
We review a summary judgment de novo, IV.
applying the same standards as the district In addition to claiming that a genuine issue
court. See Webb v. Cardiothoracic Surgery of material fact exists regarding the
Assocs., P.A., 139 F.3d 532, 536 (5th Cir. preemption defense as the record stands, the
1998); Figgie Int'l, Inc. v. Bailey, 23 F.3d Rushings contest evidentiary rulings that
1267, 1269 (5th Cir. 1994). Summary would alter the summary judgment record in
judgment is appropriate if the evidence on their favor. Although we affirm the
record “show[s] that there is no genuine issue evidentiary rulings, the Rushings have
as to any material fact and that the moving demonstrated a genuine issue of material fact
party is entitled to judgment as a matter of on the nuisance claim as it relates to noise.
law.” FED. R. CIV. P. 56(c). The admissibility
of evidence is subject to the same standards The Rushings also find error in the court's
and rules that govern the admissibility of conclusions that the NCA preempts their
evidence at trial. See Donaghey v. Ocean shock and vibration claim and that no genuine
Drilling & Exploration Co., 974 F.2d 646, issue of material fact exists regarding the
650 n.3 (5th Cir. 1992); Lavespere v. Niagara defense that the FRSA preempts their
Mach. & Tool Works, Inc., 910 F.2d 167, 175- excessive whistle blowing claim. KCS, in
76 (5th Cir. 1990). addition to disputing the alleged errors, avers
that we can affirm summary judgment on the
The moving party bears the initial burden of ground that Mississippi tort law does not allow
demonstrating an absence of evidence a private nuisance suit against a railroad acting
supporting the nonmovant's case. See Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986).
When the burden of establishing the issue at 4
See also Anderson v. Liberty Lobby, Inc., 477
trial is on the nonmovant, the movant U.S. 242, 252 (1986) (holding that party bearing
accomplishes this merely by pointing out the burden of persuasion must set forth sufficient
absence of evidence in the record supporting factual material to support determination that
the issue. Id. at 323-24. Although we burden of persuasion has been satisfied); accord
consider the evidence and all reasonable Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir.)
inferences to be drawn therefrom in the light (“A defendant may use a motion for summary
judgment to test an affirmative defense which
most favorable to the nonmovant, the entitles that party to a judgment as a matter of law.
nonmoving party may not rest on the mere The defendant making such a motion must
allegations or denials of its pleadings, but must demonstrate that no disputed material fact exists
respond by setting forth specific facts regarding the affirmative defense asserted.”), cert.
indicating a genuine issue for trial. See Webb, denied, 522 U.S. 914 (1997); Buttry v. General
139 F.3d at 536; Figgie, 23 F.3d at 1269-70. Signal Corp., 68 F.3d 1488, 1492 (2d Cir. 1995).

4
in a public capacity. We reverse and allow the The proper method of attacking the
suit to go forward insofar as the nuisance evidence is by a motion to strike that contains
claim relies on vibrations and excessive whistle specific objections. See 11 JAMES W. MOORE
blowing. KCS's Mississippi tort law argument ET AL., MOORE 'S FEDERAL P RACTICE
erroneously interprets the state's caselaw; we § 56.14[4][a], at 56-197 (3d ed. 1999). The
reject it. Rushings did not move to strike, but merely
raised unsubstantiated fact issues regarding the
A. expert’s qualifications.7 Questioning an
The Rushings contend that the court should expert's qualifications at trial does not preserve
have excluded Seidemann's affidavit, alleging the error, even when the party earlier raised an
that he does not meet the requirements for objection in a motion in limine; it constitutes
admissibility of FED. R. CIV. P. 702 expert an attack on the expert’s credibility, not an
testimony.5 Absent the affidavit, KCS lacks objection to admissibility under rule 702. See
summary judgment evidence to establish its Marceaux, 124 F.3d at 734. If questioning an
affirmative defense of compliance with the expert's qualifications cannot constitute
NCA regulations. We conclude the court did reiteration of an objection, then, a fortiori, it
not err. cannot be an objection.8

1. As a result, we review for plain error. We
We reverse the admission of expert may exercise our discretion to reverse under
testimony only for abuse of discretion. See plain error review only when we find an error
Black v. Food Lion, Inc., 171 F.3d 308, 310 that is clear and obvious under current law,
(5th Cir. 1999); Moore v. Ashland Chem. Inc., that affects the defendant's substantial rights,
151 F.3d 269, 274 (5th Cir. 1998) (en banc), and that seriously would affect the fairness,
cert. denied, 119 S. Ct. 1454 (1999). Failure integrity or public reputation of judicial
to object to expert testimony forfeits the proceedings if left uncorrected. See
objection, precluding full review on appeal. Marceaux, 124 F.3d at 734; United States v.
See Marceaux v. Conoco, Inc., 124 F.3d 730, Calverley, 37 F.3d 160, 162-63 (5th Cir.
733 (5th Cir. 1997). This rule applies equally 1994) (en banc).
to evidence offered to support or oppose
summary judgment. See Donaghey, 974 F.2d 2.
at 650 n.3; Williamson v. United States Dep’t In Daubert v. Merrell Dow
of Agric., 815 F.2d 368, 383 (5th Cir. 1987). Pharmaceuticals, Inc., 509 U.S. 579 (1993),
If the objection is forfeited, we review for the Court instructed district courts to function
plain error.6 as gatekeepers, to ensure that only reliable and

5 preclude noticing plain error).
“If scientific, technical or other specialized
knowledge will assist the trier of fact to understand
7
the evidence or to determine a fact in issue, a They queried, “Is Dr. Seidemann qualified to
witness qualified as an expert by knowledge, skill, make the assertions contained in his affidavit?”
experience, training, or education may testify “Did Dr. Seidemann's opinion provide the basis for
thereto in the form of an opinion or otherwise.” a legitimate assertion that the noise and the other
FED. R. CIV. P. 702. effects the Rushings regularly
experienceSSexcessive vibration and shock
6
See Marceaux, 124 F.3d at 734; Snyder v. wavesSSare within the permissible limits of the
Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. Noise Control Act or are within its intended
1988); 11 JAMES W. MOORE ET AL., MOORE 'S scope?”
FEDERAL PRACTICE § 56.14[4][b], at 56-199 (3d
8
ed. 1999) (explaining that absent motion to strike Cf. FDIC v. Meyer, 781 F.2d 1260, 1268 (7th
with specific objection to testimony, court will Cir. 1986) (refusing to treat “response” as motion
review only for plain error); FED. R. EVID. 103(d) to strike where it failed to alert the court to alleged
(stating that failure to object to evidence does not deficiencies in opposition's affidavit).

5
relevant expert testimony is presented to the technique. If he failed to comply with that
jury. See id. at 590-93.9 In determining technique, Seidemann at the very least would
reliability, courts follow a flexible approach in have to establish the reliability of his
which they examine factors such as whether alternative technique; more likely, the evidence
the technique can be (and has been) tested, would fail as a matter of law to establish
whether it has been subjected to peer review compliance with those regulations. But the
and publication, whether there is a known or record does not reveal that the Rushings have
potential rate of error, and whether the raised a genuine fact issue regarding
relevant scientific community generally accepts Seidemann’s compliance with the technique.
the technique. See Daubert, 509 U.S. at 593-
94; Kumho, 119 S. Ct. at 1175. Each of these The primary issue the Rushings raised in the
factors may or may not be relevant to the district court and emphasize in their brief is
particular inquiry. See id.; Black, 171 F.3d Seidemann's qualifications to conduct outdoor
at 311. sound measurements under the NCA. They
emphasize that Seidemann attested to little
a. experience in conducting outdoor
The court did not plainly err in admitting environmental measurements of railroad
Seidemann's affidavit. The Rushings first sounds. We find this argument unpersuasive.
attempt to cast doubt on the reliability of the
testing method that Seidemann used, pointing First, the “emphasis on qualifications over
out that the court did not make findings such reliability of the expert testimony reflect[s] a
as the acceptance of the technique and its pre-Daubert sensibility.” Watkin v. Telsmith,
potential rate of error. As KCS responds, Inc., 121 F.3d 984, 992 (5th Cir. 1997). Of
however, the affidavit explains that Seidemann course, qualifications remain important;
precisely followed the techniques that the rule 702 requires a qualified expert. A
NCA regulations provide must be used to completely unqualified expert using the most
determine regulatory compliance. reliable of tests should not be allowed to
When applicable law mandates the use of a testify. But the heart of Daubert is relevance
particular test, the proponent of the test's and reliability. As long as some reasonable
results should not have to establish its indication of qualifications is adduced, the
reliability. Even if the opponent could prove court may admit the evidence without
that it is unreliable, it would be unfair to the abdicating its gate-keeping function. After
proponent to exclude his expert evidence that, qualifications become an issue for the
based on the mandated technique. Rather, its trier of fact rather than for the court in its
reliability irrebuttably should be presumed. gate-keeping capacity.10
Any other rule would place the testimony's
proponent in the untenable position of being More importantly, the record reveals that
unable to prove compliance with applicable Seidemann is qualified to administer the tests
law because he could not introduce the results and testify regarding their results. His affidavit
of the test mandated by that same law. explains in detail how he followed the
prescribed technique. He is licensed in
It would be fair to challenge Seidemann's audiology by Mississippi and several other
compliance with the mandated test; that is, to states. He holds both a Masters and Ph.D. in
challenge whether he followed the regulatory the field, and has extensive experience both
teaching and practicing. He has sat on and

9
Although Daubert addressed traditional
10
“scientific” evidence, courts should apply the same See Daubert, 509 U.S. at 596 (“Vigorous
rule to all rule 702 experts, including those relying cross-examination, presentation of contrary
on technical or other specialized knowledge. See evidence, and careful instruction on the burden of
Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, proof are the traditional and appropriate means of
1174-75 (1999). attacking shaky but admissible evidence.”).

6
served as chairman of numerous committees the error, precluding our review.11 Because
related to audiology. He has published the Rushings waived any objection to the
extensively, including in forensic and affidavits' untimeliness, we may not review the
occupational audiology. He has twenty-nine alleged error.
years of experience in conducting sound level
measurements in industry and in communities. B.
Finally, his expert testimony has been admitted The Rushings next argue that the court
in numerous other courts. Although he may erred when it denied their motion to
have limited hands-on experience with the supplement their summary judgment response
precise measurements he took, the court did with the affidavit of their own expert from
not plainly err in accepting his testimony in EHS, revealing decibel readings at the
light of these credentials. Cf. Lavespere, 910 Rushings' home well in excess of the
F.2d at 176-77 (finding no abuse of discretion regulatory maximums. KCS opposed the
on similar facts). motion because the Rushings had not
designated the expert within the time
b. established by the court's Case Management
The Rushings point out that the initial Plan Order. The district court denied the
affidavit filed with the summary judgment motion because the designation of the expert
motion did not include Seidemann's CV. The was untimely and was attempted without leave
only relevant evidence Seidemann sets forth in of court to designate out of time.
that initial affidavit is that he is a licensed
audiologist and that he conducted his 1.
measurements in accordance with the NCA “The Civil Rules endow the trial judge with
regulations. The Rushings aver that the court formidable case-management authority.”
should not have considered the supplemental Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315
affidavits that were filed without the court's (1st Cir. 1998). Part of the authority includes
permission to substantiate Seidemann's establishing a case-management schedule that
qualifications only after the Rushings had the court enters as an order. See FED. R. CIV.
raised the issue. P. 16(b); UNIFORM U.S. DIST. CT. RULES
D. MISS., Rule 6(d). Expert witnesses must be
The Rushings did not move to strike the designated in accordance with that schedule.
supplemental affidavits. This failure differs See id. rule 6(g); UNIFORM U.S. DIST. CT.
slightly from the failure to strike the expert
affidavit, discussed above, but the difference
significantly affects our review. The Rushings' 11
See Donaghey, 974 F.2d at 650 n.3 (finding
objection to the expert affidavit is an procedural objections to admissibility of summary
evidentiary objection. As explained above, judgment evidence waived by failure to challenge
absent a timely objection or motion to strike, in district court); McCloud River R.R. v. Sabine
a party forfeits evidentiary objections to River Forest Prods., Inc., 735 F.2d 879, 882 (5th
summary judgment evidence. We will review, Cir. 1984) (holding that party waived right to raise
therefore, only for plain error. untimeliness of supplemental affidavit by failing to
object or move to strike in district court); Hicks v.
Here, however, the Rushings object to the Harris, 606 F.2d 65, 68 n.3 (5th Cir. 1979)
supplemental affidavits on the ground that (refusing to review procedural objection to
KCS failed to comply with the procedural affidavit raised for the first time on appeal, without
rules governing the admission of evidence. a motion to strike in the district court); Auto Drive-
Away Co., Inc. v. Interstate Commerce
Specifically, the argument's merit rests on our Comm'n, 360 F.2d 446, 448-49 (5th Cir. 1966)
interpretation of FED. R. CIV. P. 6 and 56. A (holding that, absent timely motion to strike,
failure to make a procedural objection waives affidavit's non-compliance with procedural rules
waived); see also Calverley, 37 F.3d at 162
(discussing difference between waiver and
forfeiture).

7
RULES D. MISS. EXPENSE AND DELAY singularly override the enforcement of local
REDUCTION PLAN, § 4(I)(A)(4). A party who rules and scheduling orders.” Id. at 792.
fails to comply with the ordered disclosure Furthermore, it would have prejudiced
schedule “shall not, unless such failure is KCS, because it would have needed time to
harmless, be permitted to use as evidence at a research the witness, review the material and,
trial, at a hearing, or on a motion any witness in response, probably conduct more
or information not so disclosed.” See id. measurements. Of course, that prejudice could
§ 4(I)(A)(5). Indeed, a party who ignores any have been ameliorated by a continuance; but
case-management deadline does so at his own delaying rulings or trial never is ideal.13 More
peril. See FED. R. CIV. P. 16(f) (authorizing importantly, the court decided to strike the
sanctions under FED. R. CIV. P. 37(b)(2) for testimony as a sanction for failing to designate
noncompliance).12 the expert; in such a case, prejudice is not a
strict requirement, and a continuance would
We review a court's case-management have failed to sanction the Rushings.14
decisions, including whether to impose
sanctions for violations of a scheduling order
and local rules, and the choice of sanction,
such as refusing to permit an untimely
designated expert witness to testify, for abuse
of discretion. See Sierra Club v. Cedar Point
Oil Co., 73 F.3d 546, 572 (5th Cir. 1996);
Geiserman, 893 F.2d at 790. We will not
disturb “a trial court's decision to exclude
evidence as a means of enforcing a pretrial
order . . . absent a clear abuse of discretion.”
Id. In assessing whether a court abused its
discretion, we examine four factors: the 13
Although we face this issue in a summary
importance of the witness's testimony; the judgment posture, designation of an expert is not
prejudice to the opposing party of allowing the just for summary judgment purposes; it applies to
witness to testify; the possibility of curing such trial, as well. The potential effects of late
prejudice by granting a continuance; and the designation on trial, therefore, are relevant to our
explanation, if any, for the party's failure to analysis. The Rushings aver that the trial would
comply with the discovery order. See Sierra not have been delayed, but the possibility remains.
Club, 73 F.3d at 572; Geiserman, 893 F.2d The summary judgment ruling certainly would
have been delayed, and that would have increased
at 791. the likelihood that the trial, too, would be
postponed.
2.
The district court did not abuse its 14
See Sierra Club, 73 F.3d at 573 (“While a
discretion. The importance of the witness to continuance would have given the [non-offending
the Rushings' case is undeniable. Although not party] more time to review the late disclosures,
necessary for their case-in-chief, an expert such a measure would neither punish [the offender]
would prove invaluable in rebutting KCS's nor deter similar behavior in the future.”)
attempt to establish its affirmative preemption (quotation omitted); Chilcutt v. United States, 4
defense. This importance, however, “cannot F.3d 1313, 1324 n.30 (5th Cir. 1993)
(“While perhaps relevant to the type of sanction
imposed, a party need not always be prejudiced by
its opponent's discovery abuses prior to the
12
See also John v. Louisiana, 899 F.2d 1441, imposition of sanctions. After all, the goal of
1448-49 (5th Cir. 1990) (upholding sanctions sanctioning is not to reward the complying party,
under FED. R. CIV. P. 16(f)); Geiserman v. but to punish the infracting party and to deter
MacDonald, 893 F.2d 787, 792 (5th Cir. 1990) others who may be want to engage in similar
(upholding striking of expert pursuant to rule 16(f) behavior.”); John, 899 F.2d at 1448-49 (holding
for untimely designation). prejudice not strictly required).

8
 Finally, the Rushings do not offer a The Rushings aver that the district court
persuasive justification for failing to designate erred in granting partial summary judgment
their expert witness within the ordered time or based on the NCA preemption defense as it
to move to designate out of time earlier than relates to noise.16 The regulations, found at
their attempt to submit the expert affidavit. 40 C.F.R. § 201 et seq., set maximum noise
They argue that they did not need an expert emissions for locomotives under both
for their case-in-chief; they had no use for one stationary and moving conditions, for rail car
until KCS had relied on its expert report to operations, and for couplings. Section 201.15
support summary judgment, and even then did provides for an adjusted, averaged maximum
not know the report's importance until KCS weighted sound level of 92dB at any
tried to make it reliable with the supplemental measurement location on residential or
affidavits. They treated Seidemann as a fact commercial property that receives sounds from
witness until the supplements established his the railroad operations. We must determine
expert qualifications. the preemptive reach of these regulations.

Yet, over six months before the Rushings “Where a state [law] conflicts with, or
sought to introduce the expert testimony, KCS frustrates, federal law, the former must give
amended its answer affirmatively to plead the way.” CSX Transp., Inc. v. Easterwood, 507
NCA preemption defense. Eight months U.S. 658, 663 (1993) (citing U.S. CONST., art.
before the Rushings acted, KCS sought VI, cl. 2). Nonetheless, “a court interpreting
permission to take measurements on their a federal statute pertaining to a subject
property for the express purpose of supporting traditionally governed by state law will be
the defense; and ten months before the reluctant to find pre-emption.” Id. at 664.
Rushings now claim they knew they needed an The NCA recognizes that it regulates an area
expert, KCS initially disclosed Seidemann as of traditional state concern: “primary
an expert who would testify regarding sound responsibility for control of noise rests with
levels at the switching yard. At no time did State and local governments . . . .” 42 U.S.C.
the Rushings designate, or move to designate § 4901(a)(3). And state common law
out of time, their expert. traditionally governs nuisances. We will find
preemption, therefore, only if it is the clear and
In light of these early indications that expert manifest intent of Congress. See CSX Transp.,
testimony would be used in KCS's defense, the 507 U.S. at 663; Davis v. Davis, 170 F.3d
Rushings cannot justify waiting until the 475, 481 (5th Cir. 1999) (en banc), petition
evidence actually was relied on to designate for cert. filed (June 15, 1999) (No. 98-2008).
their own expert, even though they may have
had no need to introduce or even gather expert When Congress provides an express
evidence before then. The court acted within preemption provision, we must focus on the
its discretion.15 plain wording of the clause. CSX Transp., 507
C. U.S. at 664. NCA's express preemption
provision provides,

15
Because the facts would be no different, the
court would not abuse its discretion by denying a
16
motion to designate out of time filed on remand. The Rushings also aver that the court erred in
Nonetheless, considering that the preemption refusing to include in the record deposition
defense was not pleaded until after the Rushings' testimony, taken by KCS just before the court ruled
time had expired, and in light of its apparent on the summary judgment motion, that they
generosity in considering KCS's late-filed attempted to introduce after the court had ruled via
supplemental summary judgment affidavits absent a Motion to Reconsider. We do not reach this
a motion, we hope that in the interest of justice the issue, because we reverse on other grounds and its
court, on remand, will look favorably on a motion resolution will not affect the proceedings on
to designate an expert out of time. remand.

9
 [A]fter the effective date of a regulation that disparately regulate the same operations
under this section applicable to noise that federal regulations govern.19
emissions . . ., no State . . . may adopt
or enforce any standard applicable to
noise emissions resulting from the
operation of the same equipment unless
such standard is identical to a standard .
. . prescribed by any regulation under
this section.

42 U.S.C. § 4916(c)(1).
This text is decidedly narrow. The NCA
“was not designed to remove all state and local
control over noise.” New Hampshire Motor
Transp. Ass'n v. Plaistow, 67 F.3d 326, 332
(1st Cir. 1995).17 And the clause “in no way
suggests that Congress meant for the adoption
of any federal noise regulation to bar or
displace every state effort to regulate the noise
emissions of interstate rail carriers.”
Baltimore & Ohio R.R. v. Oberly, 837 F.2d
108, 114 (3d Cir. 1988).18 Rather, by its
terms, the NCA preempts only those state laws

17
The court upheld a town's curfew order
enforcing a noise ordinance against a trucking
facility, for which regulations setting maximum
decibel limits have been promulgated pursuant to
the NCA. Although the town could not mandate
different decibel levels for motor carriers, neither
the curfew nor the ordinance purported to regulate
decibel levels. See New Hampshire Motor
Transp., 67 F.3d at 332. “Rather, noise levels
were one element of an equation that also included
'odors, dust, smoke, refuse matter, fumes . . . and
vibration' and that prompted a limitation on
operating hours for one specific site.” Id. The
court found this acceptable, holding “it would
stretch the [preemption clause's] words beyond
their
ordinary meaning to strike down a curfew order
based on a range of concerns where federal law
19
regulates only the decibel levels of the equipment.” Any claim that the NCA occupies the field of
Id. noise r egulation is unfounded. See id. at 113-14
(holding § 4916(c)(1) “is not a global preemption
18
The court upheld a state noise control statute provision”). Nor does 42 U.S.C. § 4911
governing an intermodal shipping facility against a (providing a federal right of action for injunctive
facial preemption challenge. See Baltimore & relief to force compliance with the NCA) evince
Ohio R.R., 837 F.2d at 116. Absent some actual an intent to completely preempt state law. The
conflict between the state statute and the federal same section provides that it does not “restrict any
regulations, the court held that the state could right . . . under any statute or common law to seek
apply its ordinance to the facility. See id. at 109, enforcement of any noise control requirement or to
116. seek any other relief.” 42 U.S.C. § 4911(e).

10
 A state may employ or allow a common law
action for damages, then, only to enforce
federal regulations or to regulate aspects of
railroads and switching over which the state
has discretionary authority.20 This outlines the
parameters of KCS's affirmative preemption
defense. If KCS establishes that it complies
with the NCA's noise regulations, then the
NCA preempts the nuisance suit insofar as that
suit complains of excessive noise. If KCS fails
to establish its regulatory compliance, then the
suit may proceed to enforce compliance by the
award of damages for excessive, nuisance-
causing noise. Similarly, if KCS fails to
establish that the NCA regulates the operation
of the equipment at issue, then no preemption
of state law exists. The district court,
therefore, correctly concluded that Mississippi
cannot enforce noise limits stricter than those
set forth in § 201.15, covering the operations
at KCS's switchyard.21

11
 1.
With the scope of KCS's affirmative
defense established, we turn to the Rushings'
argument that the court erred by granting
summary judgment for KCS insofar as they
complain about noise at the switchyard. The
question is whether a genuine, material fact
issue exists regarding KCS's compliance.

Seidemann attested that his measurements
demonstrate that KCS operates the switchyard
in accordance with the regulations. In their
affidavits, however, the Rushings dispute that
Seidemann's measurements reflect the noise
they typically hear. They claim that the court
should have admitted this testimony pursuant
to FED. R. EVID. 701, governing lay opinions,
and that it raises the factual question whether
KCS has established its compliance.22

a.

wary of this approach, but need not address it,
because the Rushings have not urged, either on
appeal or in the district court, that their nuisance
suit could function as a similar temporal
restriction.
22
Rule 701, F ED. R. CIV. P., provides that a
non-expert “witness' testimony in the form of
opinions or inferences is limited to those opinions
or inferences approach, but need not address it,
wary of this which are (a) rationally based on the
perception of the witness and (b) urged, either on
because the Rushings have not helpful to a clear
understanding district court, that their nuisance
appeal or in theof the witness' testimony or the
determination of a fact as a
suit could function issue.” similar temporal
restriction.
12
 We review a rejection of rule 701 testimony Rushings came forward with specific facts
for abuse of discretion. See Doddy v. Oxy contradicting KCS's evidence, disputing that
USA, Inc., 101 F.3d 448, 459 (5th Cir. 1997); the measurements are representative of the
Miller v. Universal Studios, Inc., 650 F.2d noise they typically must endure. This creates
1365, 1374 (5th Cir. July 1981). Under rule a factual issue for the jury, precluding
701, “a lay opinion must be based on personal summary judgment.
perception, must 'be one that a normal person
would form from those perceptions,' and must KCS attacks the evidence in essentially
be helpful to the jury.” United States v. three ways. First, it argues that the Rushings'
Riddle, 103 F.3d 423, 428 (5th Cir. 1997) assertions are legally insufficient to contradict
(quoting Soden v. Freightliner Corp., 714 the expert testimony that the measurements
F.2d 498, 511 (5th Cir. 1983)); see also were taken in compliance with the NCA
Robinson v. Bump, 894 F.2d 758, 763 (5th regulations, and that they demonstrate
Cir. 1990). compliance with the maximum decibel levels.
This argument misses the point.
We do not know whether the district court
excluded the testimony or, instead, decided The Rushings do not claim (at least on this
that it did not raise a genuine issue of material point) that the measurements failed to meet
fact. The court's opinion does not mention the NCA specifications, or that they did not
Rushings' affidavits, but merely states that demonstrate compliance on one night. They
KCS established compliance with the contend, instead, that the measurements are
guidelines. not representative and hence cannot establish
compliance on a typical evening. It would
If the court did exclude the testimony, then defeat the purpose of regulating maximum
it abused its discretion. Indeed, KCS does not noise levels if a railroad could demonstrate
dispute this. The Rushings perceived that the compliance on one evening but exceed the
sounds on the night KCS's expert measured limits with impunity every other night.
them were of a lesser volume than on a typical
night. There is no way to state this fact except The representativeness of the
by the conclusory inference that they were measurements, then, is material to compliance.
quieter, and that fact would be helpful to the Although, as KCS emphasizes, the
jury in assessing KCS's compliance with the measurements may have captured the right
regulations.23 amount of activity (at least 30 couplings per
60-to-240-minute session), they did not
b. necessarily record the volume regularly
The real dispute is whether this testimony associated with the switching yard. If the trier
raises a genuine fact issue. We conclude that of fact believed that on the night in question
it does. KCS bears the burden of adducing the operators slowed the speed at which they
evidence to establish its compliance, which the coupled and coupled fewer cars at a time, then
Seidemann affidavit accomplishes. The it could reject KCS's evidence as atypical.

Second, in a related argument, KCS avers
23
that lay people are not competent to give NCA
See Asplundh Mfg. Div. v. Benton Harbor compliance opinions; rather, expert testimony
Eng'g, 57 F.3d 1190, 1196 (3d Cir. 1995) (“The is required, and the Rushings have timely
prototypical example of the type of evidence proffered none. Even if true, this is a non
contemplated by the adoption of Rule 701 relates
to the appearance of persons or things, identity, the sequitur. The Rushings do not testify
manner of conduct, competency of person, degrees regarding NCA compliance; they simply testify
of light, or darkness, sound, size, weight, distance, that the measurements are not representative,
and an endless number of items that cannot be because the noise was quieter than usual on
described factually in words apart from the evening they were taken. As explained
inferences.”).

13
above, the Rushings are competent to make seemed the engineers did not start the cars
that assessment under rule 701. running down hill with the same speed they
normally do and, therefore, the noise that
Finally, KCS argues that the evidence is resulted from the impact of the coupling and
insufficient to create a genuine fact issue uncoupling operations, was significantly lower
because it is too vague and self-serving. KCS than the noise that we usually hear. In fact,
is right that the Rushings must come forward the uncoupling during the measurements was
with “significant probative evidence.” See one car at a time when usually the uncoupling
State Farm Life Ins. Co. v. Gutterman, involves numerous cars at the same time.”
896 F.2d 116, 118 (5th Cir. 1990) (quoting In
re Municipal Bond Reporting Antitrust Litig., Similarly, Patricia Rushing observed that
672 F.2d 436, 440 (5th Cir. 1982)). Although “the engineers did not switch cars in multiples
their burden is not as high as it is on the typical as they normally do but switched only one car
nonmoving plaintiff, because KCS bears the at a time. They did not get a running start and
burden of proof on its affirmative defense, a then cut several cars loose at once as they
scintilla of evidence is not enough; “there must often do. Thus, the noise level created by
be evidence on which the jury could coupling was not representative of the noise
reasonably find for the plaintiff.” Id. (quoting level we normally experience from the
Anderson, 477 U.S. at 252). Nor are coupling activities.” As KCS acknowledged at
conclusional allegations sufficient.24 argument, “[c]ommon sense would tell you
that if you're going faster, you're going to have
But merely claiming that the evidence is a louder noise.”
self-serving does not mean we cannot consider
it or that it is insufficient. Much evidence is
self-serving and, to an extent, conclusional.
“At the margins there is some room for debate
as to how 'specific' must be the 'specific facts'
that Rule 56(e) requires in a particular case.”
Id. at 889.

If the Rushings merely asserted that “the
testing is bad,” or “the noise usually is louder,”
then we probably would have to reject it as
insufficient to create a genuine fact issue.
They offered more: They both attested that
the night in question was atypicalSSan
assessment they are qualified to make. Both
gave numeric comparisons on a one to ten
scale of that night to a typical night.

The Rushings even proffered potential
explanations, based on their personal
observations, for why it was quieter than
usual. Willard Rushing explained that “it

24
See Lujan v. National Wildlife Fed'n,
497 U.S. 871, 888 (1990) (“The object of
[requiring the nonmovant to set forth specific facts]
is not to replace conclusory allegations of the
complaint or answer with conclusory allegations of
an affidavit.”).

14
 Willard Rushing testified that even “Dr. backdoor way of circumventing the noise
Seidemann recognized that the operations had regulations' preemptive effect.
been changed or were different from what he
expected because he told my wife and me that The summary judgment record, however, is
he had to go to the railroad yard to see what devoid of evidence supporting the court's
was going on.” These provide sufficient conclusion. Seidemann did not attest to the
specific facts raising a genuine issue for trial fact, nor does other evidence indicate that
on the affirmative defense of preemption. noise and vibrations are o ne and the same.
Accordingly, KCS was not entitled to Because KCS seeks summary judgment on its
summary judgment on the nuisance claim affirmative defense, it shoulders the burden of
based on noise emissions. demonstrating the lack of a genuine issue of
material fact regarding it. It has not.
2.
The Rushings also contest the district Nor can we accept the court's ipse dixit that
court's conclusion that the NCA preempts their they are one and the same, as though it were a
nuisance claim insofar as it complains of matter of which we can take judicial notice.
vibrations and shocks from the switchyard Sound is a complex phenomenon, making it
activity. The only regulations applicable are impossible to conclude, without evidence, that
those limiting decibel levels of noise emissions the relevant vibrations and decibels are directly
from certain train operations. Conspicuously and causally correlated.
absent is a clear and manifest purpose to
preempt state action beyond the regulation of In addition, the Rushings claim damages
noise emissions from the specified operations. from the vibrations and shocks that shake their
Neither the statute nor the regulations mention property. Although some of the vibrations and
vibrations. In fact, KCS does not contend that shocks may be caused by sound waves, no
the NCA regulates vibrations or shocks evidence substantiates that any of them is.
per se.25 Perhaps large rail cars crashing together cause
shock waves distinct from sound waves that
The district court made the perfunctory cause the Rushings' home to shake and wall
conclusion that, “[s]ince there is a direct decorations to slip.26
correlation between the level of vibrations and
the level of noise, the Court finds that the two
are one in the same and therefore Plaintiff's
nuisance claim based upon excessive vibrations
will be dismissed.” If this were true, we
should find the shocks and vibrations aspect of
the claim preempted as well, for a plaintiff 26
The common observations that the Rushings
should not be able to restrict vibrations as a make convince us that evidence is required before
we could accept the court's conclusion. A large
bass speaker in a car might cause excessive
25
KCS does point out that the noise and vibrations in a neighboring car without "sounding
vibrations stem from the same subject matter of loud." An air horn and the clash of two train cars
coupling activities, citing CSX Transp., 507 U.S. coming together might be equally “loud” at the
at 664-65, for the proposition that the subject source, but the air horn will not shake one’s
matter regulated determines preemptive scope. But windows, while the clashing cars might. Dropping
viewing the preempted subject matter narrowly, as an empty metal drum onto a metal surface
we must, the subject matter is noise from coupling would create a loud clanging noise and
and not just coupling. To establish preemption of vibrationsSSnot unlike the clash of cymbals. The
the vibrations aspect of the complaint, KCS must same drum filled with sand and dropped from the
show that decibels and vibrations are causally and same height onto the same surface would sound
directly correlated, such that the regulation of less
vibrations directly would affect decibels and enable loud (more of a dull thud) but would create
backdoor regulation of noise. significantly larger shock waves.

15
 KCS may be able to establish preemption regulations and not an undue burden on
with proper evidence explaining why the interstate commerce.
pertinent vibrations and decibels are directly
correlated. But in the absence of summary Id. (quoting 45 U.S.C. § 434).
judgment evidence, the court should not have
dismissed this aspect of the claim.27 “FRSA preemption is even more disfavored
than preemption generally.” Southern Pac.,
D. 9 F.3d at 813. The restrictive terms of its
The Rushings find error in the dismissal of preemption provision “indicate[] that pre-
their nuisance claim as preempted by the emption will lie only if the federal regulations
FRSA insofar as it complains of excessive train substantially subsume the subject matter of the
whistling, contending that a genuine issue of relevant state law.” CSX Transp., 507 U.S.
material fact exists as to whether KCS sounds at 664. When applying FRSA preemption, the
its whistles only for necessary safety reasons. Court has eschewed broad categories such as
We agree. “railroad safety” and has looked at the narrow
categories of “warning devices” installed at
1. federally-improved grade crossings and “train
Recognizing that the NCA regulations speed.” Id. at 665-75; see also Southern Pac.,
explicitly exclude train whistles from their 9 F.3d at 813.28
scope, see 40 C.F.R. § 210.10, the district Regulations promulgated pursuant to the
court held that the FRSA preempted the FRSA require all lead locomotives to be
Rushings' excessive whistling complaint. The equipped with audible warning devices with a
FRSA was enacted “to promote safety in all specified minimum decibel level. See
areas of railroad operations and to reduce 49 C.F.R. § 229.129. From this regulation and
railroad-related accidents, and to reduce the fact that KCS allegedly sounds its whistles
deaths and injuries to persons . . . .” CSX only as required for safety reasons (at grade
Transp., 507 U.S. at 661 (quoting 45 U.S.C. crossings and before backing up), KCS
§ 421). The Act grants the Secretary of contends that the nuisance claim is preempted.
Transportation broad power to promulgate Given the narrow scope of FRSA preemption,
regulations “for all areas of railroad safety.” however, the cited regulations do not preempt
Id. at 662 (quoting 45 U.S.C. § 431(a)). the claim. In fact, the nuisance claim does not
Congress expressly defined the preemptive constitute a state railroad safety regulation at
scope of any promulgated regulations: all.

States may “adopt or continue in force Specifically, the Rushings complain about
any law, rule, regulation, or standard when the trains sound their whistles (at night,
relating to railroad safety until such time for no apparent reason); the regulations
as the Secretary has adopted a rule, address only the sound-producing capacity of
regulation or order, or standard
covering the same subject matter of such
State requirement.” Even after federal
standards have been promulgated, the 28
States may adopt more stringent safety KCS's claim that the FRSA and its
requirements “when necessary to regulations “occupy the field of locomotive
eliminate or reduce an essentially local warning devices and train safety” is utterly at odds
safety hazard,” if those standards are not with the Court's holding that the FRSA does not
preempt a wrongful death action based on an
“incompatible with” federal laws or accident at a grade crossing, despite the
regulations' coverage of warning devices at
federally-funded grade crossings. See CSX
27
Cf. British Airways Bd. v. Port Auth., 564 Transp., 507 U.S. at 671-72. The only case it
F.2d 1001, 1010-12 (2d Cir. 1977) (treating noise cites, unpersuasive authority on its own, pre-dates
and vibrations as distinct). CSX Transp.

16
the whistles.29 A sound capacity safety be limited by KCS's necessary and reasonable
regulation does not substantially subsume sounding of whistles for safety reasons; state
regulations on when whistles are sounded. See law and KCS's operating requirements may be
Southern Pac., 9 F.3d at 813. Although the relevant to establishing the reasonableness of
state likely could not regulate the sounding of whistle soundings. If KCS demonstrated that
whistles by banning them altogether, because it sounds its whistles only in the interest of
it would defeat the purpose of the whistle safety, we might be persuaded that summary
capacity provision, it can impose restrictions judgment is appropriate.
on when they are sounded. See id. The FRSA
does not preempt the nuisance claim as a The Rushings, however, have demonstrated
matter of law. a genuine issue of fact as to whether the trains
sound whistles only in the interest of safety.
2. KCS introduced an affidavit that attested that
In a similar vein, KCS argues that the claim its trains sound whistles only before grade
is preempted because non-FRSA law requires crossings and before reversing. Willard
it to sound whistles when it does. We do not Rushing, on the other hand, avers that the
consider KCS's reliance on state law requiring trains sound whistles “for long periods of time
a train to sound its whistle before a grade when the trains are not moving or beginning to
crossing, because KCS did not raise the state move.”31
statute in the district court and hence may not
raise it now. Nor may we rely on KCS's KCS challenges Rushing's testimony as
operating rules that require sounding a “conclusionary” and not based on “having
warning before reversing or crossing a grade. observed the locomotives,” arguing that we
Although KCS files these rules with the should not rely on this “mere unsupported
Federal Railroad Administration, that agency conjecture.” Yet Rushing specifically testified
neither approves nor adopts them; they do not that the whistles sound when the trains are not
have the force of law and hence cannot moving, and with no reference to a crossing or
preempt state law. See id. at 812 n.5. to reversing. These observations necessarily
imply that he personally has observed the
A nuisance action embodies considerations trains not moving while hearing whistles. This
of reasonableness.30 Nuisance liability should present s competent summary judgment
evidence.

29
See Southern Pac., 9 F.3d at 813 (upholding The district court held that “[t]he whistles
state regulations that restrict the sounding of train on the trains . . . are sounded as the trains
whistles only at grade crossings with certain safety approach a grade crossing and before the
devices and only between certain hours). trains move backward.” In reaching this
conclusion, it resolved conflicting testimony in
30
See T.K. Stanley, Inc. v. Cason, 614 So. 2d KCS's favor. It cannot do this on a summary
942, 953 (Miss. 1992) (“One is subject to liability
for a private nuisance if, but only if, his conduct is
a legal cause of an invasion of another's interest in
the private use and enjoyment of land, and the conduct.” RESTATEMENT (SECOND) OF TORTS
invasion is either (a) intentional and unreasonable, § 826.
or (b) unintentional and otherwise actionable under
31
the rules controlling liability for negligent or He further attests that they “are not signaling
reckless conduct, or for abnormally dangerous to move since the trains do not in fact move after
conditions or activities.”) (quoting RESTATEMENT whistling but often sit there for long periods simply
(SECOND) OF TORTS § 882)). Sounding whistles tooting on the whistlesSSback and forth.”
constitute an intentional invasion; “[a]n intentional “Whistles are often sounded at times that have no
invasion of another's interest in the use and reference to a crossing or to backing up. The
enjoyment of land is unreasonable if . . . the gravity whistles regularly occur when the engines are
of the harm outweighs the utility of the actor's neither moving nor beginning to move.”

17
judgment motion, however. See Anderson, one KCS quotes distinguishes that case from a
477 U.S. at 249 (observing that “the judge's railroad's private functions:
function is not himself to weigh the evidence
and determine the truth of the matter but to It may be conceded that a railroad
determine whether there is a genuine issue for company is not protected by its charter
trial.”). The Rushings have demonstrated a in creating a private nuisance. It cannot
genuine issue of material fact on the FRSA locate its machine shops, roundhouses,
preemption defense, and KCS has not coal chutes, water tanks, or private
established it is entitled to judgment as a switchyards near or adjacent to private
matter of law. property under such circumstances as to
create a private nuisance and thereby
E. depreciate or damage private property.
KCS also argues that it carries out its In the placing or construction of these
functions in the public interest and that, under conveniences the railroad company has
Mississippi law, a private nuisance suit will not the power of selection; its act in placing
lie against a railroad for its public acts, absent or installing these necessary
a showing of negligence. Contrary to KCS's conveniences must be classed as the
suggestion, the district court did not decide private acts of a public corporation.
this matter in its order. Nonetheless, we may
affirm summary judgment on any basis evident Id. at 56-57.
in the record. See Chriceol v. Phillips,
169 F.3d 313, 315 (5th Cir. 1999); Davis v. KCS also quotes a passage from Robertson
Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 that ends with the following:
(5th Cir. 1976).
As to all those functions which are
KCS correctly posits that absent a showing exercised in the direct or immediate
of negligence, Mississippi tort law exempts the service of the public in the carrying
public functions of a railroad from private passengers and in the transportation and
nuisance suits absent a showing of negligence. handling of freight, these are public, and,
See Jenner v. Collins, 52 So. 2d 638, 640 so long as exercised without negligence
(Miss. 1951); Robertson v. New Orleans & and in the customary manner with
G.N.R.R., 129 So. 100, 102 (Miss. 1930); appropriate instrumentalities, are within
Dean v. Southern Ry., 73 So. 55, 56-57 (Miss. the protection of the public franchise . .
1916). An action taken “to serve the public ..
generally . . . must be characterized as a public
and not a private act of the railway company.” Robertson, 129 So. at 102. Yet the very next
Dean, 73 So. at 56. This distinction between sentence states,
public and private acts is crucial, because only
the public acts of a railroad are damnum But to all those permanent features of
absque injuria. KCS contends that its the service which appertain merely to
switchyard activities are public acts, because the means of the supply of those
the operations are essential for transporting instrumentalities, and in keeping them in
goods over its lines to the public's benefit. order and making them available for said
direct service, they belong to the private
KCS's argument lacks merit. KCS quotes part, and, although incidental, are not
a long passage from Dean that holds a party things with which the public is directly
cannot recover fo r “any injury which is the concerned; they are things which the
result of noise produced by the operation of railroad manages for its own interest
trains on main lines.” Id. This principle ....
extends to spur tracks that connect to main
lines. See id. But the next paragraph after the Id.

18
 The opinion goes on to quote the above
passage from Dean to distinguish traffic on
mainlines, spur tracks, and intersection
switches from the private acts for which a
railroad may be liable, including the placement
of a switchyard near private property so as to
create a nuisance. Id. Indeed, Robertson's
ultimate holding allows a nuisance action
complaining of noise and vibrations from a
railroad's switchyard that had been constructed
next to the plaintiff's home to proceed. See id.
at 101-02.

The Rushings complain about the noise and
vibrations coming from KCS's private
switchyard, constructed right next to their
homeSSthe very situation presented in
Robertson. Robertson's holding is squarely on
point. KCS can be held liable under
Mississippi law for bringing this nuisance to
the Rushings.

For the foregoing reasons, the judgment is
REVERSED and REMANDED for further
proceedings.

19
KING, Chief Judge, concurring in part and dissenting in part:

While I concur in much of the majority opinion, I disagree on

some crucial points. First, I cannot conclude that the Rushings’

testimony that the noises emanating from KCS’s railyard on the

night that Seidemann took his measurements were substantially

quieter than the sounds they typically endure raises a genuine

issue of fact as to KCS’s compliance with the federal

regulations. The Noise Control Act of 1972 provides:

[A]fter the effective date of a regulation under this
section applicable to noise emissions resulting from the
operation of any equipment or facility of a surface carrier
engaged in interstate commerce by railroad, no State or
political subdivision thereof may adopt or enforce any
standard applicable to noise emissions resulting from the
operation of the same equipment or facility of such carrier
unless such standard is identical to a standard applicable
to noise emissions resulting from such operation prescribed
by any regulation under this section.

42 U.S.C. § 4916(c)(1). The federal regulations promulgated

under this statute set out permissible sound emission levels as

measured from properties affected by noise from railyard

operations. See 40 C.F.R. § 201.11 (standard for locomotive

operation under stationary conditions); id. § 201.12 (standard

for locomotive operation under moving conditions); id. § 201.13

(standard for rail car operations); id. § 201.14 (standard for

retarders); id. § 201.15 (standard for car coupling operations);

id. § 201.16 (standard for locomotive load cell test stands).

The regulations also specify measurement criteria that “contain

the necessary parameters and procedures for the measurement of

20
the noise emission levels prescribed . . . .” Id. § 201.20; see

id. §§ 201.21-.27. Thus, sound emission levels within the limits

set out in the regulations, as measured in accordance with the

procedures prescribed thereby, comply with federal law. Under

the Noise Control Act, a state may not adopt or enforce a

different standard for noise emissions. See 42 U.S.C.

§ 4916(c)(1).

In this case, it is undisputed that Seidemann complied with the

federal regulations in taking his measurements and that the

measurements showed sound levels well within the limits

prescribed by the regulations. While the Rushings insist that

the noises emanating from the switchyard during the night that

Seidemann took his measurements were not representative of the

conditions in which they usually live, the regulations do not

require that the sound emission measured be “typical,” whatever

that may mean. They do specify certain instruments, locations,

lengths of time, and weather conditions for measurement. I

cannot imagine that compliance with the Noise Control Act and its

regulations requires that a railroad go beyond the dictates of

those documents to ensure that measurements are “representative”

or “typical.” Such a rule would run directly counter to the

Act’s prohibition on any standards for railroad noise emissions

that are not identical to those in the regulations. Indeed, the

majority’s reasoning guts the preemptive effect of the federal

regulations: No matter what sound emission measurements show, a

plaintiff will be able to obtain a trial on her nuisance claim

21
simply by claiming that the noises measured were not typical.

Therefore, I do not believe that the Rushings’ testimony suffices

to raise a genuine issue of fact as to KCS’s compliance with the

Act and the regulations. I would hold that, insofar as it is

based on noise, the Rushings’ nuisance claim is preempted.

Subject to the discussion below, I agree with the majority

that federal law does not preempt the Rushings’ nuisance suit

insofar as it is based on vibrations, shocks, and excessive train

whistling. In my view, however, the viability of these claims

depends on whether the railyard’s activities are public acts

exempted from private nuisance suits. I cannot join the

majority’s characterization of KCS’s argument in this regard as

lacking in merit. Two decisions of the Mississippi Supreme

Court, Robertson and Dean, are central. In Robertson v. New

Orleans & G.N.R. Co., 129 So. 100 (Miss. 1930), the plaintiff

filed a nuisance suit alleging that the defendant railroad had

“erected and constructed and is now maintaining certain railroad

tracks, including six private switch tracks, each about one mile

in length, yards, railroad work shops, wye, terminals, a place

for refueling, firing and watering, and a place for the

switching, storing and cleaning of engines, coaches and cars”

that produced excessive noise, vibrations, and filth. Id. at

101. The lower court dismissed the suit. See id. at 102. The

Mississippi Supreme Court ruled:

A railroad serves both the public and itself. As to all
those functions which are exercised in the direct or
immediate service of the public in the carrying of
passengers and in the transportation and handling of

22
 freight, these are public, and, so long as exercised without
negligence and in the customary manner with appropriate
instrumentalities, are within the protection of the public
franchise granted to that end. But all those permanent
features of the service which appertain merely to the means
of the supply of those instrumentalities, and in keeping
them in order and making them available for said direct
service, they belong to the private part, and, although
incidental, are not things with which the public is directly
concerned; they are things which the railroad manages for
its own interest. . . .
The result is that for the normal operations, however
heavy this may be between station and station, or from
station to a local shipping or loading point, or point of
unloading, and whatever the number of tracks or trains,
including all station or interstation switching, there is no
liability for consequential damages. But, to quote the
language of the Dean Case [Dean v. Southern Ry. Co., 73 So.
55 (Miss. 1916)], the railroad “cannot locate its machine
shops, roundhouses, coal chutes, water tanks, or private
switchyards” and those other permanent things which belong
to its private concerns “near or adjacent to private
property under such circumstances as to create a private
nuisance and thereby depreciate or damage private property.”
The pleadings make in part, therefore, a case which falls
within this rule, and the cause should not have been wholly
dismissed.

Id. at 102. Contrary to the majority’s assertion, Robertson

neither holds that a railroad may be liable for “the placement of

a switchyard near private property so as to create a nuisance”

nor “allows a nuisance action complaining of noise and vibrations

from a railroad’s switchyard that had been constructed next to

the plaintiff’s home to proceed.” Rather, Robertson permits

nuisance suits against private switchyards. Moreover, while the

Robertson court held that not all of the plaintiffs’ case should

have been dismissed, it clearly viewed the lower court’s

dismissal as partially correct, and it did not specify which

railroad facilities among the many the plaintiffs named could

give rise to nuisance liability.

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 Like Robertson, Dean provides some guidance as to the public

function-private function distinction but does not ultimately

control the case at bar. In Dean, the plaintiff filed a nuisance

suit alleging excessive noise from a spur track near his home

that ran from the railroad’s main line to a cotton compress. See

Dean, 73 So. at 56. The Mississippi Supreme Court noted that

[p]laintiff does not complain of private switchyards
installed by the railroad company. The spur track here
complained of is a service track, made necessary for the
depositing and taking aboard of large quantities of cotton
handled by a large compress--the legitimate railroad
business required by a legitimate compress business. There
is no contention by appellant that this service track is
unnecessary, or that there is any negligence by the railroad
company, either in the selection of its engines and cars or
in the way they are handled and switched at this point. The
compress company had the right to call for the installation
of this service track, and, if the railroad company should
decline to install or furnish it, it could be compelled to
do so by the Railroad Commission. The business done over
this spur track therefore is the same character of business
done at the regular freight depots. The spur track was
installed to serve the public generally, and the act of
installation must be characterized as a public and not a
private act of the railway company. The noise produced by
the defendant’s trains over and upon this spur track falls
in the same class as the noise produced by the operation of
trains over the main line of railway.

Id. at 56. Later, the court distinguished “machine shops,

roundhouses, coal chutes, water tanks, or private switchyards,”

whose activities can give rise to nuisance liability, on the

grounds that “[i]n the placing or construction of these

conveniences the railroad company has the power of

selection . . . . But in the installation of a spur track like

the one here complained of the railroad company has no option.

It must afford the service, and in doing so it is serving the

public generally.” Id. at 56-57.

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 KCS argues that under the principles enunciated in Dean and

Robertson, the switchyard at issue in this case cannot give rise

to nuisance liability. KCS contends that its railyard, like

Dean’s spur track, is a public necessity, not a convenience:

“[T]he rail yard, which includes the KCS main line, is a hub of

interstate commerce used to sequence and build up trains to be

sent to different destinations. The beneficiaries are the public

in general that transport loads over KCS’s interstate line, a

function that would not be possible without the yard.” In

support of this assertion, KCS cites the affidavit of Andy

Martin, the railyard’s trainmaster, who averred that the yard

“consists of several switching tracks, which run off of the main

line” and “is in essence an interstation switching point, or hub,

wherein trains drop off and pickup railcars and deliver them to

various locations in the country.” In my view, KCS’s argument

that the railyard performs public functions is not frivolous.

The district court did not address its merits,32 however, and

32
In its August 26, 1998 Opinion and Order on the Rushings’
Second Motion to Supplement Response to Motion for Summary Judgment
and Motion to Reconsider and Reverse the Court’s Opinion and Order
Filed July 29, 1998, the district court said: “In granting
Defendant’s Motion for Summary Judgment on July 29, this court
found that (1) Plaintiffs’ allegations are preempted by the Noise
Control Act of 1972, 42 U.S.C. § 4916 and (2) the switching
activities at the rail yard are in the public interest and cannot
be the subject of a claim for private nuisance.” The July 29, 1998
Opinion and Order does not, however, so find; it merely recognizes
that KCS claimed that it was entitled to summary judgment because
“the switching activities conducted at the rail yard are in the
public interest and cannot be the subject of a claim for private
nuisance.” Like the majority, I read the district court’s August
1998 statement as a mischaracterization of its earlier opinion and
conclude that it did not, in fact, address the merits of KCS’s
argument that its switching activities are public functions.

25
because I think that the district court is better suited than the

court of appeals to make a first determination of whether the

activities taking place at the yard in question were public

functions, I would remand for such findings.

Accordingly, I would AFFIRM the district court’s holding that

federal law preempts the Rushings’ nuisance claim insofar as it

complains of excessive noise other than train whistling, and I

respectfully dissent from the majority’s decision to reverse on

this portion of the Rushings’ claim. I would REVERSE AND REMAND

the district court’s ruling on the vibration and train whistling

issues with instructions to (1) decide whether the railyard’s

activities are public acts exempt from private nuisance suits

under Mississippi law; (2) dismiss the lawsuit if it finds that

the railyard’s activities are, in fact, public acts; and (3)

address the vibration and train whistling claims in light of our

unanimous conclusion that these are not preempted by federal law

if it finds that the railyard’s activities are private acts.33

Accordingly, while I concur in the majority’s decision to reverse

and remand on these issues, I differ strongly with the majority’s

rationale for so doing.

33
I have no quarrel with the majority’s evidentiary and
procedural holdings.

26