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Click here for the full text of this decision FACTS:Erica Bauer Valentine was driving west on a road parallel to railroad tracks owned by CSX Transportation Inc. in Long Beach, Miss., with her husband. Valentine turned left (south) onto White Harbor Road, which crossed the railroad tracks, marked with the minimum safety warnings, but not gates. Valentine crossed the tracks as an Amtrak train traveling at 61 m.p.h. approached. The train hit Valentine’s car, killing her and her husband. The Amtrak engineer said the train’s headlight was on and that he had sounded a warning blast, though there was disagreement over the timing and length of the blast. The engineer of a stationary CSX train on an eastbound side track stated that Valentine did not look in the Amtrak train’s direction before crossing. There was some question over whether Valentine thought that the crossing signals were being activated because of the presence of the CSX train or whether Valentine’s view was obscured by that train. Two years prior to the accident CSX had been informed by the Mississippi Department of Transportation that it was required to develop estimates for the installation of gates because a diagnostic survey team had determined that gates were needed for the White Harbor Road crossing. After the accident, federal funds were given to install those gates. The guardian of Valentine’s children, Monica Bauer Hesling, brought a wrongful death action against CSX and Amtrak. Against CSX, Hesling alleged the company breached its duty in: 1. maintaining an ultra-hazardous grade crossing at White Harbor Road; 2. failing to install automatic gates at the White Harbor Road crossing; 3. failing to protect the crossing by placing flagmen at the crossing until it was occupied by the Amtrak train; 4. failing to provide protection at the crossing in violation of Mississippi law and CSX’s own operating rules; and 5. failing to exercise reasonable care under the circumstances then and there existing so as to avoid the subject accident. Hesling alleged that Amtrak breached its duty in: 1. operating its passenger train at an excessive rate of speed; 2. operating its passenger train at a speed at which the train could not, in the exercise of reasonable care, be stopped at the grade crossing to avoid an accident; 3. failing to maintain a reasonable and proper lookout for motorists approaching and using the crossing; 4. failing to see Valentine’s car in time to avoid the accident; 5. failing to sound its whistle and ring its bell as the passenger train approached within 300 yards of the crossing, in violation of Miss. Code 77-9-225; and 6. in other ways failing to exercise reasonable care under the circumstances then and there existing so as to avoid the accident. A jury trial resulted in a verdict for CSX and Amtrak. Hesling’s motions for judgment as a matter of law, judgment notwithstanding the verdict and new trial were all denied, so Hesling appealed. In the meantime, two previously undisclosed CSX documents were discovered. One was a CSX newsletter that rated the Mississippi Gulf Coast, which included the White Harbor Road crossing, as the most accident prone in the CSX system. The newsletter also observed that the Mississippi Gulf Coast had the heaviest concentration of crossings in the system, and that local ordinances forced CSX to operate its trains more slowly in that area. The other document was an agreement between CSX, Long Beach and five other Gulf Coast communities, that CSX would not operate its trains faster than 45 m.p.h. through their area. This agreement was part of a 1988 settlement that was to last “for at least a period of one full calendar year.” Based on the two newly discovered documents, Hesling moved for relief from judgment under Federal Rule of Civil Procedure 60(b)(2) (newly discovered evidence): 60(b)(3) (fraud, misrepresentation or other misconduct); and 60(b)(6) (extraordinary circumstances). The magistrate judge denied the motion, and Hesling amended her appeal to include this ruling, too. HOLDING:Affirmed. The court first considers whether the Federal Railroad Safety Act preempted Hesling’s claim that Amtrak violate a self-imposed CSX speed limit of 60 m.p.h. Maximum allowable speeds for different classes of railroad tracks are set out in 49 C.F.R. 213.9. Class 4 tracks like the portion where the White Harbor Road crossing was, has a maximum allowable speed of 60 m.p.h. for freight trains and 80 m.p.h. for passenger trains. Though the magistrate judge found that this statement preempted any issue Hesling may try to raise about the speed of the Amtrak train’s speed, Hesling claims that a statement in the Federal Register indicates that the regulation applies only to track speed, not to train speed. The court rejects the argument, referring to a ruling in CSX Transp. Inc. v. Easterwood, 507 U.S. 658 (1993), where the court found that the regulation not only set a ceiling for train speed, but should also be understood as covering the subject matter of train speed. Consequently, any state law claim based on a train’s allegedly excessive speed is preempted by federal law. The court finds that the Federal Register statement, which said, “Notwithstanding some language in Easterwood, . . . [the Federal Railroad Administration] has never assumed the task of setting train speed,” was taken out of context. The following sentence, the court observes, makes it clear that train speed is left to the discretion of railroads only insofar as they can target what type of track designations they want to maintain. That does not mean they can ignore federal regulations in setting their own train speeds, the court continues, only that that “they have the information and ability to tailor their operations to the particular track designations they desire, and in that way they are the masters of their own universe.” As the Amtrak train was going under the authorized track speed, any claims regarding excessive train speed are preempted, and the magistrate judge did not abuse his discretion in so finding. The court then turns to Hesling’s arguments about possible discovery abuses related to the two documents disclosed after the trial. Hesling says they should have been disclosed in response to either her Second Request for Production of Documents to CSX, her First Set of Interrogatories to Amtrak, or her Second Set of Interrogatories to CSX. The court reviews the denial of relief under Rule 60(b)(2) for newly discovered evidence. Hesling argues that while FRSA 20106 generally preempts state law claims regarding railroad safety, states still have the some authority to adopt regulations to prevent a local hazard. Hesling says that the document detailing the 1988 agreement between CSX and Long Beach was meant to address just such a “specific individual hazard” so that it would not be preempted by federal law, thus justifying relief under Rule 60(b)(2). The court acknowledges that Easterwood specifically left alone whether tort law duties, such as the duty to slow or stop a train to avoid a specific, individual hazard were not preempted. The 1988 agreement, however, applied to the rail system running through the entire Mississippi Gulf Coast, the court observes, so it is not an agreement to avoid a single, specific collision at any particular crossing or in any particular municipality. Similarly, the CSX newsletter’s reference to the accident-prone area is referencing the entire Mississippi Gulf Coast region. The magistrate judge, then, was correct in denying relief under Rule 60(b)(2). The withheld documents would not have changed the preemption determination, so they clearly would not have affected the ultimate case determination. Turning to Hesling’s arguments under Rule 60(b)(3) for fraud and misconduct, which, the court notes, does not require a showing that the information that was withheld would have altered the outcome of the case. Though Hesling claims that if she had received the CSX newsletter during the original discovery period she could have explored the issue of “specific individual hazard” and the subsequent installation of gates at the White Harbor Road crossing, the court notes that Hesling was nonetheless able to raise these issues to the magistrate judge in pretrial matters. The failure to produce the documents did not, therefore, affect how Hesling’s case was presented to the court. The court then considers whether extraordinary circumstances existed to grant relief under Rule 60(b)(6). The court rules that Hesling cannot get relief under this rule where the allegations made in support of it are essentially identical to the fraud and misconduct allegations made in support of her Rule 60(b)(3) motion. The court does, however, take note of CSX’s excuse for why it didn’t previously disclose the documents as “somewhat dubious.” The court summarily dismisses Hesling’s complaints over various rulings on jury instructions made by the magistrate judge, as well as most of Hesling’s complaints over excluded evidence. The court does, however, specifically consider whether a particular witness for CSX was properly excluded. Douglas Halpin was the Federal Rule of Civil Procedure 30(b)(6) designee for CSX. Hesling proffered Halpin’s testimony to demonstrate that CSX knew that installation of crossing gates at White Harbor Road had been recommended two years prior to the accident and did not actually install them until after the accident. The court observes that it is a matter of first impression whether the FRSA preempts negligence claims based on delay in the installation of warning devices subsequent to federal approval. The court says the crucial question in determining whether FRSA 646.214(b) applies is whether federal funds participated in the installation of the warning devices at the crossing. The related regulation, C.F.R. 646.214(b)(3)(i)(F), states that automatic gates must be installed once a diagnostic team recommends them, at any project where federal funds participate. “Although [FRSA] 646.214(b)(3)(i)(F) required that automatic gates must be installed once the diagnostic team recommended them, it is the federal statute’s mandate in 646.214(b) that usurps state and private decision-making authority and indicates federal preemption. . . . We find that federal law covers the subject matter as to the installation of warning devices at railroad crossings. Therefore, we hold that negligence claims for delay in installation of warning devices are preempted by federal law.” As Halpin’s testimony was proffered to prove the inadequacy of the signals at the crossing at the time of the accident and bolster the negligence claim, and since the warning devices at that crossing were federally funded, FRSA was implicated and the magistrate judge correctly denied admission of Halpin’s testimony. OPINION:Carl E. Stewart, J.; Benavides, Stewart and Clement, JJ.

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