                                 REVISED SEPTEMBER 27, 1999

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

                                            No. 98-60590
                                          _______________

                    WILLARD RUSHING and PATRICIA RUSHING,
                                                             Plaintiffs-Appellants,
                                               VERSUS

                 KANSAS CITY SOUTHERN RAILWAY COMPANY,
                                                             Defendant-Appellee.
                                    _________________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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

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

                             a.




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

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

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

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

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


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

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

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

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

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

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

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


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

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

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




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

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

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

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

night that Seidemann took his measurements were substantially

quieter than the sounds they typically endure raises a genuine

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

regulations.   The Noise Control Act of 1972 provides:

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

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

under this statute set out permissible sound emission levels as

measured from properties affected by noise from railyard

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

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

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

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

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

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

The regulations also specify measurement criteria that “contain

the necessary parameters and procedures for the measurement of




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

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

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

procedures prescribed thereby, comply with federal law.    Under

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

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

§ 4916(c)(1).

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

federal regulations in taking his measurements and that the

measurements showed sound levels well within the limits

prescribed by the regulations.    While the Rushings insist that

the noises emanating from the switchyard during the night that

Seidemann took his measurements were not representative of the

conditions in which they usually live, the regulations do not

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

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

lengths of time, and weather conditions for measurement.    I

cannot imagine that compliance with the Noise Control Act and its

regulations requires that a railroad go beyond the dictates of

those documents to ensure that measurements are “representative”

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

Act’s prohibition on any standards for railroad noise emissions

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

majority’s reasoning guts the preemptive effect of the federal

regulations:    No matter what sound emission measurements show, a

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


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

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

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

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

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

   Subject to the discussion below, I agree with the majority

that federal law does not preempt the Rushings’ nuisance suit

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

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

depends on whether the railyard’s activities are public acts

exempted from private nuisance suits.   I cannot join the

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

lacking in merit.   Two decisions of the Mississippi Supreme

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

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

filed a nuisance suit alleging that the defendant railroad had

“erected and constructed and is now maintaining certain railroad

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

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

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

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

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

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

Mississippi Supreme Court ruled:

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

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

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

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

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

nor “allows a nuisance action complaining of noise and vibrations

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

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

nuisance suits against private switchyards.    Moreover, while the

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

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

dismissal as partially correct, and it did not specify which

railroad facilities among the many the plaintiffs named could

give rise to nuisance liability.


                                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
