United States Second Circuit

Summary judgment in favor of defendant, in case alleging hearing loss from train horns, is vacated where the district court erred in concluding that: 1) plaintiff's action under the Federal Employers' Liability Act was preempted by the Federal Railroad Safety Act of 1970; and 2) that even if his claim was not preempted, he could not make out a prima facie case of negligence as he did not offer expert testimony or objective measurements of the horns' decibel levels necessary to establish either that the horns caused his hearing loss or that defendant breached its duty of care to him.

Appellate Information

• Decided 07/20/2006
• Published 07/20/2006

Judges

• SACK, Circuit Judge., Before CABRANES and SACK, Circuit Judges, and AMON, District Judge.

Court

• United States Second Circuit

Counsel

• For Appellant:
  
• Philip Patrick Vogt, Altier & Vogt, LLC, New York, NY, for Plaintiff-Appellant.


• For Appellees:
  
• Sean Patrick Constable, Long Island Rail Road Co. Law Department, Jamaica, NY, for Defendant-Appellee.