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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
regulations. The affidavit explained that he
2 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
locomotives. He concluded that the noise
allege negligence, it is mistaken. See, e.g.,
emissions fell within the decibel limits
McFarlane v. Niagra Falls, 150 N.E. 391, 391
established by the NCA regulations.
(N.Y. 1928) (Cardozo, J.) ("Nuisance as a concept
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
were not wealthy, and the testing was rather
3 KCS asserts that the court also "held that the
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
most favorable to the nonmovant, the
judgment to test an affirmative defense which
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 PRACTICE
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 "If scientific, technical or other specialized
preclude noticing plain error).
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
7 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.
e f f e c t s t h e R u s h i n g s r e g u l a r l y
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
ed. 1999) (explaining that absent motion to strike
8 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
"scientific" evidence, courts should apply the same
10 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'
objection to the expert affidavit is an
11 See Donaghey, 974 F.2d at 650 n.3 (finding
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-
Specifically, the argument's merit rests on our
Away Co., Inc. v. Interstate Commerce
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
at 791.
have been delayed, and that would have increased
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
motion to designate out of time filed on remand.
16 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
regulates only the decibel levels of the equipment."
19 Any claim that the NCA occupies the field of
Id.
noise regulation 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, FED. R. CIV. P., provides that a
non-expert "witness' testimony in the form of
opinions or inferences is limited to those opinions
wary of this approach, but need not address it,
or inferences which are (a) rationally based on the
because the Rushings have not urged, either on
perception of the witness and (b) helpful to a clear
appeal or in the district court, that their nuisance
understanding of the witness' testimony or the
suit could function as a
determination of a fact 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
that lay people are not competent to give NCA
23 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
sequitur. The Rushings do not testify
to the appearance of persons or things, identity, the
regarding NCA compliance; they simply testify
manner of conduct, competency of person, degrees
that the measurements are not representative,
of light, or darkness, sound, size, weight, distance,
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
States may adopt more stringent safety
28 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
"incompatible with" federal laws or
preempt a wrongful death action based on an
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.
The district court held that "[t]he whistles
29 See Southern Pac., 9 F.3d at 813 (upholding
on the trains . . . are sounded as the trains
state regulations that restrict the sounding of train
approach a grade crossing and before the
whistles only at grade crossings with certain safety
trains move backward." In reaching this
devices and only between certain hours).
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
the rules controlling liability for negligent or
31 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.
23

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.
24

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