[Cite as Shiple v. CSX Transp., Inc., 2017-Ohio-411.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Jerome F. Shiple                                        Court of Appeals No. L-15-1275

        Appellee                                        Trial Court No. CI0201305291

v.

CSX Transportation, Inc.                                DECISION AND JUDGMENT

        Appellant                                       Decided: February 3, 2017

                                                  *****

        Robert E. Harrington, III and Robert B. Thompson, for appellee.

        Andrew E. Tauber and Mark D. Meeks, for appellant.

                                                  *****

        YARBROUGH, J.

                                             I. Introduction

        {¶ 1} Appellant, CSX Transportation, Inc. (CSXT), appeals the judgment of the

Lucas County Court of Common Pleas, awarding appellee, Jerome Shiple, $240,000 in

damages following a three-day jury trial on Shiple’s Federal Employers’ Liability Act

(FELA) claim.
                          A. Facts and Procedural Background

         {¶ 2} On November 18, 2013, Shiple, a brakeman/conductor with CSXT, filed a

complaint in the trial court, stemming from a workplace injury he sustained on

November 25, 2010. Specifically, Shiple asserted that he was injured while attempting to

board a CSXT locomotive from the east side of the O01 departure track at the company’s

Stanley Yard in Walbridge, Ohio. According to the complaint, this area was “commonly

used by CSXT employees as a walkway and was designated by CSXT as a location for

employees to board and dismount locomotive engines.” Shiple alleged that his injuries

were caused by CSXT’s failure to maintain a level walkway at Stanley Yard in

accordance with its internal regulations governing the construction and maintenance of its

walkway areas, as well as those of the Federal Railroad Administration and the American

Railway Engineering and Maintenance of Way Association.

         {¶ 3} On December 26, 2013, CSXT filed its answer, in which it denied any

liability for Shiple’s injuries and asserted several affirmative defenses including

contributory negligence. Following extensive pretrial discovery and motion practice, a

jury trial began on September 21, 2015. Shiple took the stand at the outset of his case-in-

chief.

         {¶ 4} During his testimony, Shiple testified that he was working as a conductor on

the day of his injury. As a conductor, Shiple was tasked with “switching of cars, building

of trains, putting air in the trains, testing of trains, climbing up and down ladders, taking

brakes on, taking brakes off, getting between the equipment, making air hose ties,




2.
everything you could think of to prepare the cars to move them out from one yard to

another yard.”

         {¶ 5} On the day of the injury, Shiple was assigned to a train that was traveling on

departure track O01, a line that runs north and south. According to his testimony, Shiple

was trained to perform his work on the east side of the track, a practice he maintained

throughout the course of his employment with CSXT.1 Shiple maintained that the east

side of the track was designated by CSXT as a walkway area. Shiple went on to explain

that he routinely worked on trains from the east side of the track because the tools he

needed (air hoses and the air plant) were located on the east side of the track. Also,

Shiple was able to communicate more easily with the engineer in charge of operating the

locomotive from his vantage point along the east side of the track, because the engineer’s

seat was on the east side of the locomotive.

         {¶ 6} After preparing the train for departure from Stanley Yard, Shiple traveled

back to the locomotive to board the train. In an effort to board the train, Shiple grabbed

onto the handholds with both hands, and stepped onto the bottom step of the locomotive

with his left foot. When Shiple pushed off the ground with his right foot, his right foot

slipped, and he fell forward toward the locomotive. Shiple twisted his left knee during

the fall. When asked about the cause of his fall, Shiple testified that the walkway ballast

slipped under his feet. He further indicated that the walkway was not level along the east

side of the track.

1
    Shiple worked for CSXT from 1970 until he retired in 2013.




3.
       {¶ 7} Shiple was able to board the train despite the pain he felt in his left knee.

However, Shiple soon informed the engineer that they “weren’t going anywhere” after

the pain in his left knee intensified. Shiple was then transported to St. Charles Hospital.

While in the hospital, Shiple received a morphine injection for pain and an X-ray was

taken of his knee. Shiple was released from the hospital after medical personnel put a

splint on his knee and provided him with crutches and medication.

       {¶ 8} Eventually, Shiple followed up with an orthopedic surgeon, Dr. Nabil

Ebrahiem, who ordered an MRI of Shiple’s left knee. At a subsequent appointment, Dr.

Ebrahiem informed Shiple that surgery would be required to repair a large tear in his left

medial meniscus. Shiple subsequently underwent surgery on his knee on January 11,

2011. Due to the condition of his left knee, Shiple was unable to return to work.

       {¶ 9} At the conclusion of his testimony, Shiple elected to present the deposition

testimony of one of CSXT’s assistant terminal superintendents, Donald Sprandel, who

was involved in CSXT’s investigation of Shiple’s workplace injury. Sprandel’s

recollection of the chain of events that led to Shiple’s knee injury mirrored Shiple’s

testimony. In particular, Sprandel testified that Shiple informed him on the day of the

incident that he had felt a “tweak” in his left knee after attempting to board the train.

However, Shiple did not report any problems with the ground conditions along the

walkway on the east side of the track to Sprandel.

       {¶ 10} After speaking with Shiple, Sprandel traveled to the location of the

incident. Once there, he examined the ground conditions along the east side of the O01




4.
track and took some photographs, which were admitted at trial. Sprandel indicated

during his deposition that he considered the area along the east side of the O01 track to be

a walkway, noting that the area was used as such ever since CSXT assumed control of the

Stanley Yard in 1999. Sprandel later explained that the railroad used two types of ballast:

main line ballast and walkway ballast. Walkway ballast is comprised of smaller stone

that makes it more stable than main line ballast and, therefore, more suitable for walking.

Sprandel noted that walkway ballast was placed along the east side of the O01 track.

       {¶ 11} Regarding the conditions of the walkway, Sprandel testified that the ballast

was not level at all locations along the O01 track. He went on to state that the ballast was

approximately one inch below the railroad ties. When asked about the condition of the

ballast at the location of Shiple’s injury, Sprandel stated: “It was pretty level for, like I

say, about two feet. Then I believe it went down 4 inches or so for another two feet or

something, something like that.” While examining the conditions of the walkway,

Sprandel was able to determine that Shiple’s right foot would have been close to the

sloped ballast when he attempted to board the train.

       {¶ 12} On the issue of whether it was commonplace for CSXT employees to

utilize the east side of the O01 departure track at Stanley Yard, Sprandel testified that

“the east side would be used more as far as trainmen would be concerned staying on the

same side of the locomotive as the engineer where he could see it.”

       {¶ 13} As his next witness, Shiple called Raymond Duffany, an expert in the field

of railway engineering. During the course of his testimony, Duffany noted that CSXT’s




5.
internal ballasting specifications mandated a level walkway with walkway ballast that

was level with the top of the railroad ties. Referring to photographs that were taken of

track O01, Duffany indicated that the walkway conditions along the east side of the O01

track failed to meet CSXT’s ballasting specifications insofar as the ballast was not level.

Duffany explained that “whenever you step on ballast that’s sloped, it’s going to move,

it’s going to shift under your feet.” To remedy this issue, Duffany stated that CSXT

should have extended the ballast from the track so that workers would have a level

surface to work on when boarding trains or walking along the track. Further, Duffany

found that the mixture of large and small ballast along track O01 violated safety

standards promulgated by the American Railway Engineering and Maintenance of Way

Association (AREMA), which required the use of small ballast for walkways.

       {¶ 14} At the conclusion of Duffany’s testimony, Shiple presented the deposition

testimony of Ronald Hartzell. As a CSXT roadmaster, Hartzell is tasked with

supervising the maintenance of the Stanley Yard track structure. During his testimony,

Hartzell acknowledged that the ballast used along the east side of the O01 track was a

mixture of main line ballast and walkway ballast. He went on to state that the area in

question was considered a walkway, and that the company generally uses walkway

ballast in its yards. However, Hartzell noted that main line ballast was present along

track O01 at the time of Shiple’s injury “because this track hadn’t been worked in a lot of

years.” Following Shiple’s injury, CSXT performed maintenance along track O01,

replacing several thousand railroad ties and surrounding the track with walkway ballast in




6.
an effort to bring the track to company standards. Hartzell also testified that the walkway

surface on which Shiple’s injury occurred was not level but, rather, was maintained at “a

2 to 1 slope” beginning 12 inches from the end of the railroad ties. Ultimately, Hartzell

conceded that the walkway along the east side of track O01 did not comply with CSXT’s

specifications, which mandated a level walkway surface on this type of track, comprised

of walkway ballast, for a span of 10 feet from the end of the railroad ties. In a subsequent

affidavit presented to the jury during CSXT’s case-in-chief, Hartzell recanted on his

statement that the walkway was noncompliant, insisting that the ballast that supported

track O01 complied with CSXT specifications.

       {¶ 15} As his final witness, Shiple called Dr. Ebrahiem, who testified via

deposition regarding the medical treatment Shiple received following the November 25,

2010 incident at Stanley Yard. According to Dr. Ebrahiem, Shiple presented with a large

tear in the medial meniscus of his left knee. Dr. Ebrahiem testified that, to a reasonable

degree of medical certainty, the knee injury was caused when Shiple slipped while trying

to board the train at Stanley Yard. After diagnosing the tear, Ebrahiem informed Shiple

that he would need to undergo surgery.

       {¶ 16} Following the presentation of Dr. Ebrahiem’s deposition testimony, CSXT

moved for a directed verdict on Shiple’s FELA claim. CSXT argued that the FELA

claim was precluded by the Federal Railroad Safety Act (FRSA). Moreover, CSXT

asserted that Shiple was negligent in failing to board the train from the west side of the




7.
track, where it was undisputed that the ballast was level. Upon consideration, the trial

court denied CSXT’s motion, and the matter proceeded to CSXT’s case-in-chief.

       {¶ 17} As its first witness, CSXT called Andrew Bamford. Bamford was the

CSXT trainmaster in charge of Stanley Yard on the date of Shiple’s injury. After being

notified of the injury, Bamford called for an ambulance an alerted Sprandel to the

incident. Subsequently, Bamford visited the scene of the injury with Sprandel in an effort

to investigate the area and examine the locomotive. During the investigation, Bamford

boarded Shiple’s locomotive in an effort to reenact the step height distance that Shiple

had to negotiate in order to step onto the train. Bamford testified that he boarded the

locomotive from approximately the same location as Shiple, noting no exceptions to any

of the ground conditions along the east side of track O01. Bamford stated that he was

able to board the locomotive without difficulty. When asked whether railroad employees

were permitted to work on the west side of track O01, Bamford answered in the

affirmative. However, Bamford acknowledged on cross-examination that most

conductors work on the east side of the track.

       {¶ 18} As its second and final witness, CSXT called its assistant division engineer,

Troy Kopke, to the stand. As assistant division engineer, Kopke is responsible for the

maintenance of tracks in the region that includes Stanley Yard. Kopke stated that the

ballast along the east side of track O01 could not be leveled without violating federal

regulations regarding track maintenance and presenting a “slip-trip-fall hazard” due to a

lack of proper drainage.




8.
       {¶ 19} Following the conclusion of Kopke’s testimony and the admission of

CSXT’s exhibits, the parties moved for directed verdicts on several issues. Relevant to

this appeal, Shiple moved for a directed verdict on the issue of CSXT’s contributory

negligence affirmative defense. In support of the motion, Shiple’s counsel stated that

“the evidence in the case is that Mr. Shiple did what he was told to do and simply

boarded the locomotive and was injured in that regard. I don’t believe [CSXT has]

established any evidence that he did anything wrong in that process.” CSXT opposed

Shiple’s motion, arguing that the evidence demonstrated that Shiple could have boarded

the locomotive from the west side of track O01 or moved the locomotive to a different

location along the track prior to boarding. Ultimately, the trial court found no evidence

to suggest that Shiple was negligent. Rather, the court concluded that the evidence

established that boarding the locomotive from the east side of track O01 was the safer

option given the necessity to communicate with the engineer, who was seated on the east

side of the track. Therefore, the court granted Shiple’s motion for directed verdict.

       {¶ 20} Thereafter, CSXT renewed its motion for a directed verdict premised upon

the contention that Shiple’s FELA claim was precluded by the FRSA. The court rejected

CSXT’s argument and denied its motion. Following closing arguments, the matter was

submitted to the jury. Following its deliberations, the jury found in Shiple’s favor and

awarded damages in the amount of $240,000.

       {¶ 21} Two days later, the trial court issued a judgment order memorializing the

jury’s verdict. CSXT’s timely appeal followed.




9.
                                 B. Assignments of Error

       {¶ 22} In its appellate brief, CSXT fails to set forth specific assignments of error,

opting instead to assert two “issues” for our review. Under App.R. 16(A)(3), CSXT, as

the appellant in this case, was required to include a statement of the assignments of error

in its brief, with reference to the place in the record where each error is reflected. Rather

than strike CSXT’s noncompliant brief under 6th Dist.Loc.App.R. 10(F), we find that it is

in the interest of judicial economy to simply treat CSXT’s statement of the issues as a

statement of its assignments of error. As such, CSXT’s assignments of error are as

follows:

              1. Whether Plaintiff’s claim – which challenges the configuration of

       ballast that CSXT used to support its track – is precluded by the Federal

       Railroad Safety Act and federal regulations covering the use of ballast that

       affects the track-support structure.

              2. Whether the trial court erred in granting a directed verdict on

       CSXT’s claim for contributory negligence even though it was undisputed

       that Shiple could have chosen to board the train from the other side, where

       the ballast was level.

                                        II. Analysis

                            A. Directed Verdict Standard of Review

       {¶ 23} In each of its assignments of error, CSXT challenges the trial court’s

decisions on motions for a directed verdict. Our review of the grant or denial of such




10.
motions is de novo. Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 2002-

Ohio-6803, 783 N.E.2d 920, ¶ 14 (8th Dist.); Grau v. Kleinschmidt, 31 Ohio St.3d 84, 90,

509 N.E.2d 399 (1987). Civ.R. 50 sets forth the standard for granting a motion for a

directed verdict and provides, in part:

              (A)(4) When a motion for directed verdict has been properly made,

       and the trial court, after construing the evidence most strongly in favor of

       the party against whom the motion is directed, finds that upon any

       determinative issue reasonable minds could come to but one conclusion

       upon the evidence submitted and that conclusion is adverse to such party,

       the court shall sustain the motion and direct a verdict for the moving party

       as to that issue.

       {¶ 24} When a trial court rules on a motion for directed verdict, it must not

consider either the weight of the evidence or witness credibility. Texler v. D.O. Summers

Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679-80, 693 N.E.2d 271 (1998).

Instead, a directed verdict motion tests the legal sufficiency of the evidence. See

Eldridge v. Firestone Tire & Rubber Co., 24 Ohio App.3d 94, 96, 493 N.E.2d 293 (10th

Dist.1985). The Civ.R. 50(A)(4) “reasonable minds” test “calls upon the court only to

determine whether there exists any evidence of substantial probative value in support of

[the nonmoving party’s claims].” Texler at 679-80; Ruta v. Breckenridge-Remy Co., 69

Ohio St.2d 66, 68-69, 430 N.E.2d 935 (1982).




11.
            B. Trial Court’s Denial of CSXT’s Motion for Directed Verdict

        {¶ 25} In its first assignment of error, CSXT argues that the trial court erred in

denying its motion for directed verdict where Shiple’s FELA claim was precluded by the

FRSA.

        {¶ 26} In order to resolve CSXT’s first assignment of error, we must examine the

interplay of FELA and FRSA. The FELA makes a railroad liable to its employees who

are injured by “the negligence of any of [its] officers, agents, or employees * * *, or by

reason of any defect or insufficiency, due to its negligence, in its cars, engines,

appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45

U.S.C. 51. The statute provides a “cause of action sounding in negligence[.] Absent

express language to the contrary, the elements of a FELA claim are determined by

reference to the common law.” Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165-66, 127

S.Ct. 799, 166 L.Ed.2d 638 (2007).

        {¶ 27} Also touching on railroad operations, the FRSA’s purpose is “to promote

safety in every area of railroad operations and reduce railroad-related accidents and

incidents.” Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 146

L.Ed.2d 374 (2000). To that end, the FRSA authorizes the Secretary of Transportation to

“prescribe regulations and issue orders for every area of railroad safety.” Id. Under 49

U.S.C. 20106(a)(1), the FRSA’s express preemption provision, “[l]aws, regulations, and

orders related to railroad safety * * * shall be nationally uniform to the extent

practicable.” “A State may adopt or continue in force a law, regulation, or order related




12.
to railroad safety * * * until the Secretary of Transportation * * * prescribes a regulation

or issues an order covering the subject matter of the State requirement.” (Emphasis

added.) 49 U.S.C. 20106(a)(2).

       {¶ 28} A state negligence action is preempted if a FRSA regulation “substantially

subsume[s]” the subject matter of the suit. CSX Transp., Inc. v. Easterwood, 507 U.S.

658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). “This provision explicitly preempts

only state laws, regulations, and orders; it does not mention other federal safety

standards.” Nickels v. Grand Trunk W. R.R., 560 F.3d 426, 429 (6th Cir.2009). Notably,

Shiple’s negligence claim, while filed in state court, is premised on CSXT’s violation of

the FELA, a federal statute.

       {¶ 29} Here, CSXT contends that Shiple’s claim challenges the configuration of

ballast that affects the track support structure, a subject governed by the FRSA under 49

C.F.R. 213.103 (the ballast regulation), which provides:

              Unless it is otherwise structurally supported, all track shall be

       supported by material which will—

              (a)Transmit and distribute the load of the track and railroad rolling

       equipment to the subgrade;

              (b) Restrain the track laterally, longitudinally, and vertically under

       dynamic loads imposed by railroad rolling equipment and thermal stress

       exerted by the rails;




13.
              (c) Provide adequate drainage for the track; and

              (d) Maintain proper track crosslevel, surface, and alinement.

       {¶ 30} In support of its preclusion argument, CSXT relies heavily on the Sixth

Circuit’s decision in Nickels. In that case, the plaintiffs brought FELA claims alleging

that they were injured after years of walking on oversized track ballast. The court held

that the ballast regulation “substantially subsumes the issue of ballast size,” even though

the regulation did not prescribe a specific size of ballast for certain types of classes or

tracks, instead leaving that determination to the railroad’s discretion. Id. at 431.

       {¶ 31} In dissent, Circuit Judge Rogers noted that, “under the Supreme Court’s

FRSA federal preemption analysis, the FRSA regulations that require adequate physical

support for rails do not sufficiently imply that railroads may use any grade of sufficiently

supportive ballast, no matter the risk to employees who must walk on the ballast.” Id. at

433. “Nothing in 49 C.F.R. 213.103 or any related regulations addresses the issue of

trackside walkways and ballast size. The regulations generally require adequate support

for the trains, and advert in no way to the nature of a walking surface.” Id. The dissent

acknowledged that a FELA claim could not be maintained where such claim would

require the railroad to violate the ballast regulation, but found that the railroad had not

demonstrated such incompatibility. Thus, the dissent concluded that the ballast

regulation

              is a floor that guarantees a minimum level of safety and there are

       many ways that the railroad can meet the standard. The manner in which




14.
       the railroad complies with the standard may involve using ballast that is

       more or less conducive to creating safe walkways for railroad employees.

       While compliance with the FRSA regulation is evidence of due care, it

       “does not preclude finding negligence if reasonable railroads would have

       taken additional precautions to prevent injury to their employees.” Id. at

       435-36, quoting Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 442 (5th

       Cir.2001).

       {¶ 32} Notably, the FELA claim at issue in this case is not premised solely upon

the size of the ballast used along the east side of track O01. Rather, Shiple alleges that

CSXT was negligent in failing to provide a level walkway along the east side of the track.

Thus, we conclude that the holding in Nickels does not control here. Federal and state

courts have issued decisions similarly distinguishing Nickels. For example, in Potrukus

v. CSX Transp., Inc., N.D.Ohio No. 3:09CV744, 2010 U.S. Dist. LEXIS 73722 (July 21,

2010), the United States District Court for the Northern District of Ohio examined

Potrukus’s FELA claim, which alleged that CSXT’s improper ballast maintenance and

use of oversized ballast caused trauma to his right knee, culminating in a torn meniscus.

CSXT filed a motion for summary judgment, in which it relied upon the Sixth Circuit’s

holding in Nickels in arguing that the FRSA preempted Potrukus’s negligence claims

under the FELA. The trial court found that the ballast size claim was preempted by the

FRSA under Nickels. However, the court concluded that CSXT’s reliance on Nickels was




15.
misplaced with regard to the ballast maintenance claim. Id. at *8. In so concluding, the

court stated:

                Regulating the type of material used to support the track is different

       than regulating the maintenance of the material itself. Just because a type

       of ballast can “maintain proper track crosslevel, surface, and alinement[,]”

       however, does not mean that the railroad has, for example, filled in holes or

       graded the ballast, omissions which would exacerbate the ballast’s natural,

       uneven conformation. Id. at *8-9.

       {¶ 33} Likewise, the Court of Appeals of Indiana, in DeHahn v. CSX Transp., Inc.,

925 N.E.2d 442 (Ind.App.2010), found that the FRSA did not preclude DeHahn’s FELA

claim premised upon a workplace injury he sustained while inspecting railroad track.

According to DeHahn, he was injured when some of the ballast that was covering the

railroad ties on which he was walking “rolled out from under his feet,” causing him to

fall 40 feet down the railroad embankment. Id. at 445. After the trial court granted

CSXT’s motion for summary judgment, DeHahn appealed.

       {¶ 34} On appeal, CSXT argued, inter alia, that DeHahn’s FELA claim was

precluded by the ballast regulations promulgated under the FRSA. Id. at 446. The court

of appeals rejected CSXT’s argument. At the outset, the court determined that the FRSA

and the FELA are generally not in conflict. Id. at 450. Further, the court found that the

ballast regulations “‘are directed toward creating a safe roadbed for trains, not a safe

walkway for railroad employees who must inspect the trains.’” Id., quoting Grimes v.




16.
Norfolk Southern Ry., 116 F.Supp.2d 995, 1002-03 (N.D.Ind.2000). The court went on to

state:

                In the present case, DeHahn claims that the placement of the ballast

         on top of the ties, and CSX’s failure to remedy this, caused him to slip and

         fall while inspecting the rail. [The ballast regulation] does not mention

         worker safety or whether ballast should be allowed to remain on crossties;

         it is instead concerned with ensuring that the railroad’s track is structurally

         sound. In light of FELA’s humanitarian purpose, and the liberal

         construction given to effectuate this humanitarian purpose, we cannot say

         that DeHahn’s FELA claim that CSX was negligent by leaving ballast on

         top of crossties is precluded by FRSA regulations governing ballast. Id.

         {¶ 35} Here, the parties agree that the ballast regulation is the only regulation

governing railway ballast within the FRSA. Even a cursory glance at the ballast

regulation reveals that it is directed at promoting a safe track structure for trains; it does

not speak to a railroad’s duty to provide safe walkways for employees alongside its

tracks. See Elston v. Union Pac. RR. Co., 74 P.3d 478, 488 (Co.App.2003) (finding that

the FRSA does not preclude a plaintiff from bringing a negligence claim under the FELA

for failure to provide safe walkways). Because it is silent on this issue, we find that the

FRSA does not “cover” Shiple’s FELA claim.

         {¶ 36} This finding is further supported by the preclusion analysis set forth in

POM Wonderful LLC v. Coca-Cola Co., 134 S.Ct. 2228, 189 L.Ed.2d 141 (2014). In that




17.
case, POM Wonderful LLC asserted claims of false advertising against the Coca-Cola

Company under 15 U.S.C. 1125(a) (the Lanham Act), alleging that Coca-Cola

deceptively used the term “pomegranate blueberry” on the label of one of its products.

Id. at 2235. The trial court granted partial summary judgment in favor of Coca-Cola,

finding that the Lanham Act claim was precluded by regulations promulgated by the

Food and Drug Administration (FDA) pursuant to the Food, Drug, and Cosmetic Act

(FDCA), 21 U.S.C. 301 et seq. Id. at 2235-36. The FDCA prohibits the misbranding of

food and drink, and contains a provision preempting certain state laws on misbranding.

Id. at 2235. On appeal, the Ninth Circuit Court of Appeals affirmed the district court’s

decision that POM Wonderful LLC’s Lanham Act claims were precluded by the FDCA.

Id. at 2236.

       {¶ 37} In a unanimous decision, the Supreme Court reversed. At the outset, the

court noted that “neither the Lanham Act nor the FDCA, in express terms, forbids or

limits Lanham Act claims challenging labels that are regulated by the FDCA.” Id. at

2237. The court found that the “closest the statutes come to addressing the preclusion of

the Lanham Act claim * * * is the pre-emption provision * * *.” Id. at 2238. The court

was careful to draw a distinction between preemption cases (in which the question is

whether a state law is preempted by a federal statute or agency action) and preclusion

cases (in which a cause of action under one federal statute is precluded by the provisions

of another federal statute). Id. at 2236. With that distinction in mind, the court addressed

the preemption provision found in the FDCA, stating:




18.
              [T]he provision does not refer to requirements imposed by other

       sources of law, such as federal statutes. For purposes of deciding whether

       the FDCA displaces a regulatory or liability scheme in another statute, it

       makes a substantial difference whether that other statute is state or federal.

       By taking care to mandate express pre-emption of some state laws,

       Congress if anything indicated it did not intend the FDCA to preclude

       requirements arising from other sources. Pre-emption of some state

       requirements does not suggest an intent to preclude federal claims. Id. at

       2238 (citation omitted).

       {¶ 38} The court went on to find that “[t]he structures of the FDCA and the

Lanham Act reinforce the conclusion drawn from the text.” Id. The court explained that

“[t]he Lanham Act and the FDCA complement each other in major respects, for each has

its own scope and purpose,” and that, “[w]hen two statutes complement each other, it

would show disregard for the congressional design to hold that Congress nonetheless

intended one federal statute to preclude the operation of the other.” Id.

       {¶ 39} Notwithstanding the foregoing principles, Coca-Cola argued that “the

FDCA precludes POM’s Lanham Act claim because Congress intended national

uniformity in food and beverage labeling,” and that “allowing Lanham Act claims to

proceed would undermine the pre-emption provision’s goal of ensuring that food and

beverage manufacturers can market nationally without the burden of complying with a

patchwork of requirements.” Id. at 2239. The Supreme Court rejected this argument,




19.
because it found that “the pre-emption provision by its plain terms applies only to certain

state-law requirements, not to federal law.” The court characterized Coca-Cola’s position

as an attempt to have the court “ignore the words ‘State or political subdivision of a

State’ in the statute.” Id. at 2239. Relevant to CSXT’s argument in favor of preclusion in

the case sub judice, the court stated:

              Although the application of a federal statute such as the Lanham Act

       by judges and juries in courts throughout the country may give rise to some

       variation in outcome, this is the means Congress chose to enforce a national

       policy to ensure fair competition. It is quite different from the

       disuniformity that would arise from the multitude of state laws, state

       regulations, state administrative agency rulings, and state-court decisions

       that are partially forbidden by the FDCA’s pre-emption provision.

       Congress not infrequently permits a certain amount of variability by

       authorizing a federal cause of action even in areas of law where national

       uniformity is important. The Lanham Act itself is an example of this

       design: Despite Coca-Cola’s protestations, the Act is uniform in extending

       its protection against unfair competition to the whole class it describes. It is

       variable only to the extent that those rights are enforced on a case-by-case

       basis. The variability about which Coca-Cola complains is no different

       than the variability that any industry covered by the Lanham Act faces.

       And, as noted, Lanham Act actions are a means to implement a uniform




20.
       policy to prohibit unfair competition in all covered markets. Id. at 2239-40

       (citations omitted).

       {¶ 40} Here, Shiple argues that the Supreme Court’s decision in POM Wonderful

dispels CSXT’s preclusion argument concerning his FELA claim. CSXT, for its part,

contends that POM Wonderful is inapplicable here because the federal statutes at issue in

that case were different than those at issue in this case. Upon consideration of the

parties’ arguments, we agree with Shiple that the preclusion analysis in POM Wonderful

disposes of CSXT’s preclusion argument. In so finding, we join a host of other courts

that have rejected similar preclusion arguments raised by railroads seeking to avoid

liability under FELA in the wake of the Supreme Court’s decision in POM Wonderful.

See Henderson v. Amtrak, 87 F.Supp.3d 610 (S.D.N.Y.2015) (finding that the broad

scope of the FELA should not be limited by inference, and rejecting appellate decisions,

including Nickels, that have reached the opposite result); see also Hananburgh v. Metro-

North Commuter R.R., S.D.N.Y. No. 13-CV-2799, 2015 U.S. Dist. LEXIS 34008

(Mar. 18, 2015) (holding that the FRSA did not preclude railroad employee’s FELA

claim premised upon railroad’s alleged negligent track inspection and maintenance

practices because the FRSA contains no “clearly expressed congressional intention” to

preclude FELA claims); Bratton v. Kansas City Southern R.R., W.D. Louisiana No.

13-3016, 2015 U.S. Dist. LEXIS 22116 (Feb. 24, 2015) (relying on POM Wonderful in

denying railroad’s motion in limine, in which it sought to exclude plaintiff’s claims for

negligent training and certification under the FELA on the basis that such claims were




21.
precluded by the FRSA); Madden v. Antonov, 156 F.Supp.3d 1011 (D.Neb.2015)

(concluding that plaintiff’s FELA claim, based upon railroad’s alleged failure to provide

a safe work environment, was not precluded by the FRSA, and finding that allowing

FRSA to preclude FELA claims would work unmitigated harm on FELA’s goal of

promoting the safety of railroad workers by leaving injured workers with no recourse

against their employer and insulating broad categories of potentially negligent conduct

from any accountability); Cottles v. Norfolk Southern Railway Co., S.Ct. of Alabama No.

1140632, 2016 Ala. LEXIS 96 (Aug. 26, 2016) (relying upon POM Wonderful in its

reversal of trial court’s grant of summary judgment to railroad on plaintiff’s FELA claims

based upon back and rotator cuff injuries he sustained while attempting to “throw” a

switch that was allegedly defective); Fair v. BNSF Railway Co., 238 Cal.App.4th 269

(2015) (finding that the FRSA had to be interpreted to harmonize its safety requirements

with the private right of action provided under the FELA given a lack of express intent to

preclude federal claims under the FELA); Noice v. BNSF Railway Co., 383 P.3d 761

(N.M.2016) (affirming the appellate court’s conclusion that the FRSA did not preclude

plaintiff’s FELA excessive-speed claim upon the recognition that the FRSA contained no

provision expressly precluding the claim, and permitting the claim to proceed would

further the purposes of both statutes).

       {¶ 41} In Henderson, the court provided a persuasive list of similarities between

the statutes at issue in POM Wonderful and those at issue here. The court stated:




22.
             Like the FDCA, the FRSA authorizes an agency to promulgate

      specific regulations in furtherance of the statute’s purpose and provides that

      those regulations preempt certain state laws in the interest of national

      uniformity. Like the Lanham Act, the FELA provides a broad private right

      of action under federal law that purportedly undermines such uniformity.

      And like the relationship between the Lanham Act and the FDCA, the

      FELA and the FRSA complement each other in significant respects, in that

      each statute is designed to accomplish the same goal of enhancing railroad

      safety through different means. Under these circumstances, POM

      Wonderful clearly dictates that the FRSA should not be interpreted to

      preclude federal claims under the FELA, in accordance with the plain

      meaning of its text. Admittedly, whereas the objective of achieving

      nationally uniform laws in a particular area is explicitly stated in the

      FRSA’s state law preemption provisions, that objective is merely implicit

      in the similar provisions of the FDCA. But it is clear from the reasoning in

      POM Wonderful that this relatively minor distinction does not warrant

      reaching a different result. Nothing in the Supreme Court’s decision

      suggests that its reasoning hinged on Congress’s failure to make explicit the

      FDCA’s implicit objective of achieving nationally uniform laws related to

      food and drink labeling. Henderson, supra, at 621.




23.
         {¶ 42} In harmony with the aforementioned decisions applying the preclusion

analysis from POM Wonderful to cases involving the FELA and the FRSA, we find that

the FRSA and its regulations do not preclude Shiple’s FELA claims. Therefore, we find

that the trial court did not err in rejecting CSXT’s preclusion argument and denying its

motion for directed verdict. Accordingly, CSXT’s first assignment of error is not well-

taken.

             C. Trial Court’s Grant of Shiple’s Motion for Directed Verdict

         {¶ 43} In its second assignment of error, CSXT asserts that the trial court erred in

granting Shiple’s motion for directed verdict on the issue of contributory negligence.

CSXT argues that Shiple was contributorily negligent in deciding to board the locomotive

from the east side of track O01, where the ballast was visibly sloping, rather than the west

side of the track, where the ballast was level. However, as noted by Shiple in his

appellate brief, the uncontroverted testimony presented at trial demonstrates that boarding

the locomotive from the east side was common practice on track O01. Indeed, the

evidence establishes that boarding the locomotive from the east side of track O01 was

actually the safer option given the necessity to communicate with the engineer, who was

seated on the east side of the track. Having examined the record in its entirety and

finding no evidence that Shiple acted negligently in boarding the locomotive, we find the

trial court did not err in granting Shiple’s motion for directed verdict.

         {¶ 44} Accordingly, CSXT’s second assignment of error is not well-taken.




24.
                                     III. Conclusion

       {¶ 45} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Additionally, CSXT’s “Notice of Additional Authority”

which was untimely filed without leave on November 9, 2016, is hereby stricken. CSXT

is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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