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A clear path for railroad negligence cases: many railroad cases have been blocked by preemption in recent years, but a legislative amendment has cleared the way for them to move forward. Here's what the amendment means for you.

Article Excerpt
Federal courts have progressively expanded the scope of preemption under the Federal Railroad Safety Act (FRSA) in recent years, barring countless railroad negligence claims. But recently Congress decided to amend the FRSA's preemption provision to clarify that its scope is limited. The amendment lies in [section]1528 of the Implementing Recommendations of the 9/11 Commission Act, which President Bush signed into law on August 3, 2007. (1)

The FRSA was enacted in 1970 to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." (2) The Congress that enacted this legislation believed that establishing a uniform system of minimum standards that apply across the United States would improve safety for all. But courts perverted that purpose by applying the doctrine of preemption to deprive Americans grievously injured in railroad accidents of any remedy.

Beginning with CSX Transportation v. Easterwood, Inc., (3) in 1993 and Norfolk Southern Railway v. Shanklin (4) in 2000, preemption under the FRSA expanded exponentially. By 2006, what had begun as a carefully circumscribed limitation on a state's power to regulate rail safety had expanded, through judicial interpretation, to a point approaching complete immunity for railroads.

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Members of the public were for the most part stripped of any civil remedy for injury caused by a railroad's failure to meet even the minimum standards of care established by the Federal Railroad Administration (FRA). Railroads got by with blatant violations of federal standards as well as their own internal rules and regulations.

Matters came to a head after a train derailment in Minot, North Dakota, in 2002. Following case law that reflects an ever-expanding interpretation of the FRSA's express preemption clause, the federal district court in Mehl v. Canadian Pacific Railway reluctantly concluded that a group of Minot plaintiffs exposed to extremely toxic anhydrous ammonia gas had no cause of action against the railroad because the FRSA preempted all their negligence claims. (5) The Mehl court noted that "neither the United States Supreme Court nor the Eighth Circuit requires railroads to prove compliance with federal regulations before allowing preemption of state law claims." (6)

More courts followed. By early 2007 in the Eighth Circuit, for example, the mere existence of a regulation in a given area of railroad safety preempted all civil causes of action, regardless...

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