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Sixth Circuit Court Holds Employees' Claims of Injury Due to "Oversized" Ballast. Dest

In recent years, railroads have seen an influx of claimrs by employees under the Federal Employer's Liability Act (FELA), 45 U.S.C 51, alleging injuries attributable to years of walking on mainline ballast.

Railroads have consistently taken the position that such claims are preempted or precluded by the Federal Railroad Safety Act (FRSA), 49 U.S.C. 20101, but have received mixed results.

On March 18, 2009, the United States Court of Appeals for the Sixth Circuit in Nickels v. Grand Trunk Western Railroad Inc., 560 F.3d 426 (2009), became the first federal appeals court to weigh in on the issue with a divided panel holding that the FRSA precluded the plantiffs' FELA claims.

While the Nickels decision undoubtedly was welcomed by railroads, the issue appears destined for Supreme Court review, especially if the current split of authority in the state and lower federal courts manifests itself in the federal circuit courts.

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