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May 6, 1996

VARDEN C. MILLER, Plaintiff,

The opinion of the court was delivered by: SHADUR

 Defendant Chicago & North Western Transportation Company ("C&NW") has filed a motion in limine that poses a thorny question as to expert testimony proposed to be offered by plaintiff Varden Miller ("Miller"). C&NW seeks to keep Eugene Holland ("Holland") from testifying about whether C&NW complied with (1) regulations promulgated pursuant to the Occupational Safety and Health Act ("OSHA," 29 U.S.C. §§ 650 to 678), (2) the Melrose Park Building Code and (3) the safety recommendations published by the American National Standards Institute ("ANSI").

 For the reasons stated in this memorandum opinion and order, C&NW's motion is denied in principal part. Holland will be allowed to utilize all three sets of standards in his expert testimony, although the extent to which he may base his testimony on OSHA regulations must be somewhat curtailed.


 Because the background of this action was set out in detail in this Court's November 22, 1995 memorandum opinion and order (the "Opinion," 1995 WL 702615), only a brief recital of the facts is necessary here. On August 29, 1993 Miller was employed as a C&NW diesel locomotive engineer when he fell into an 8 to 10 foot deep open maintenance pit at C&NW's Melrose Park Diesel Shop. Although protective chains could have been connected to metal poles already in place along the sides of the pit, it is uncontroverted that pursuant to C&NW's standard practice neither the chains nor any other guards were in place at the time of the accident. *fn1" Miller suffered significant closed head injuries as a result of the fall.

 Miller has brought this action under the Federal Employer's Liability Act ("FELA," 45 U.S.C. §§ 51-60), alleging that C&NW was negligent (1) in leaving hazards on the walkway next to the pit and (2) in failing to protect its workers from falling into the pit. After the parties had essentially completed pretrial discovery C&NW moved for summary judgment, and the Opinion granted that motion on Miller's first theory but denied it on the second, ruling that there was a genuine and material issue of fact as to whether C&NW was negligent on that score.

 Miller plans to offer Holland's testimony to show that a reasonable person would have had protective guards around the pit and that C&NW's failure to have the chains in place was negligent. This Court's March 22, 1996 oral ruling rejected C&NW's initial argument that Holland did not meet the "expert witness" requirements of Fed. R. Evid. 702. C&NW now urges that Holland should be barred from testifying because all three sets of standards that he has drawn upon in reaching his expert opinion are preempted by the actions of the Federal Railroad Administration ("FRA") pursuant to the Federal Railroad Safety Act ("FRSA," 45 U.S.C. §§ 421 to 444). *fn2"

 This opinion will address each of the potential bases for Holland's testimony in turn, but first a more general point about preemption is in order. Both C&NW and Miller have discussed the issues as though covered by a single preemption question: Has the FRA acted in such a way as to preempt the various bases of Holland's testimony? But both parties have used meat axes when scalpels are better suited to the task--each has failed to see the subtle but important differences in how the preemption question should be framed for the various standards on which Holland would rely:

1. Because OSHA regulations are issued by one federal agency and C&NW claims that another federal agency (FRA) has preempted OSHA's regulatory authority, the question there involves the possible preemption of one agency's regulations by another.
2. Whether the Melrose Park Building Code is preempted by FRA action presents the quite different question of whether and how a local regulation is preempted by the actions of a federal agency.
3. Because the ANSI standards are a non-binding set of recommendations promulgated by a private group, whether FRA's actions have any preemptive effect calls for an entirely different type of analysis.

 OSHA Regulations

 As for the OSHA regulations, C&NW's argument is that FRA has formally excluded open pits at railroad repair shops from OSHA regulation, so that it would be improper to allow testimony based on standards that don't even apply. C&NW's contention begins with FRSA § 421:

The Congress declares that the purpose of this chapter is to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous materials.

 FRSA § 431 then vests the Secretary of Transportation--through FRA--with the task of carrying out that purpose:

The Secretary of Transportation...shall (1) prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety supplementing provisions of law and regulations in effect on October 16, 1970, and (2) conduct, as necessary, research, ...

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