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

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.

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).

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).

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.”).

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).

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).

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.

[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).

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

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.”).

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.”).

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.

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.

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.”

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.

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.

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 *21 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 *22 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

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.

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.

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.

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.