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NICKELS v. GRAND TRUNK WESTERN R.R., INC.

Nos. 07-1736, 07-2437.

560 F.3d 426 (2009)

Stanley R. NICKELS, Plaintiff-Appellant, v. GRAND TRUNK WESTERN RAILROAD, INC., Defendant-Appellee. Donald C. Cooper, Plaintiff-Appellant, v. CSX Transportation, Inc., Defendant-Appellee.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 18, 2009.

Attorney(s) appearing for the Case

ARGUED: Robert B. Thompson, Harrington, Thompson, Acker & Harrington, Chicago, Illinois, Kirk E. Karamanian, O'Bryan, Baun, Cohen, Kuebler & Karamanian, Birmingham, Michigan, for Appellants. Andrew E. Tauber, MAYER Brown, Washington, D.C., for Appellees. ON BRIEF: Robert B. Thompson, Laurence C. Acker, Harrington, Thompson, Acker & Harrington, Chicago, Illinois, Kirk E. Karamanian, O'Bryan, Baun, Cohen, Kuebler & Karamanian, Birmingham, Michigan, for Appellants. Andrew E. Tauber, Mayer Brown, Washington, D.C., Evan Mark Tager, Mayer Brown, Chicago, Illinois, Richard A. Dietz, Michael J. Liddane, Foster, Meadows & Ballard, Detroit, Michigan, James R. Carnes, Anspach Meeks Ellenberger, Toledo, Ohio, for Appellees. James L. O'Connell, Lindhorst & Dreidame Co., Cincinnati, Ohio, for Amicus Curiae.

BATCHELDER, J., delivered the opinion of the court, in which SILER, J., joined. ROGERS, J. (pp. 433-36), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

In this consolidated action, Stanley Nickels and Donald Cooper appeal entries of summary judgment on their Federal Employers' Liability Act ("FELA") claims. These former railway employees allege injuries caused by years of walking on oversized track ballast. The district courts below held that a Federal Railway Safety Act ("FRSA") regulation covers the issue of ballast size, precluding plaintiffs' negligence actions...

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