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February 10, 1997


The opinion of the court was delivered by: KAHN

 Presently before the Court is a motion for summary judgment filed by the defendant General Motors Corporation ("GM"). Also before the Court is plaintiff's cross-motion to reinstate several previously dismissed claims. Oral arguments on this matter were heard on October 18, 1996, in Albany, New York. Decision was reserved.


 This action brought under the Federal Employer's Liability Act ("FELA") has had a long and arduous journey through the Court since its inception over ten years ago. On August 13, 1986, plaintiff John M. Oglesby ("Oglesby"), a trainman employed by the defendant Delaware and Hudson Railway Company ("D&H"), allegedly suffered a severe lower back injury while attempting to adjust the position of an engineer's seat located on a locomotive. The seat, designed by GM, consists of a platform connected to a pin and a tripod mount which is in turn attached to a track along the side of the engine wall. Hon. Con. G. Cholakis, Memorandum-Decision and Order, July 19, 1994. The design allows the seat to be moved horizontally along the track so that the engineer can access different sections of the train engine. Id. By removing the pin from the tripod mount which weighs 11 pounds, the seat, which weighs 62 pounds, can be removed from the rest of the assembly so that the apparatus can be moved more easily. Id.

 In the Memorandum-Decision and Order dated July 19, 1994, the claims relating to defect in design and manufacture were dismissed against GM on the grounds that the plaintiff's expert was not qualified and therefore the plaintiff's claims were unsupportable. Shortly thereafter, the parties stipulated to the withdrawal of the state law claims based on breach of warranty on statute of limitations grounds. Thus, the only claim remaining against GM is for negligent failure to warn.

 On January 23, 1995, Judge Cholakis granted the plaintiff's request to reopen discovery for the limited purpose of obtaining and deposing a new expert. On November 17, 1995, Judge Cholakis granted GM's motion to file its third amended answer. The current summary judgment motion followed. GM's motion is based on the theory that federal law, specifically the Locomotive Boiler Inspection Act and the Federal Railroad Safety Act, occupy the entire field of law and therefore the plaintiff's tort claim is preempted. After securing a new expert and completing the discovery process in that regard, the plaintiff now moves to reinstate the defective manufacture and design claims which were previously dismissed. Each motion will be addressed in turn.


 A. Summary Judgment Standard

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).

 When the moving party has met the burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56: Liberty Lobby Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-249; Matsushita Elec. Indus. Co., 475 U.S. at 587. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the non-moving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994)(citations omitted).

 1. Federal Preemption

 Defendant contends that the plaintiff's tort claims are preempted by federal law. Generally, "where a state statute conflicts with or frustrates federal law, the former must give way." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 123 L. Ed. 2d 387, 113 S. Ct. 1732 (1993) (citing U.S. Const., Art. VI, cl.2; Maryland v. Louisiana, 451 U.S. 725, 746, 68 L. Ed. 2d 576, 101 S. Ct. 2114 (1981)). "Consideration of issues arising under the Supremacy Clause 'start[s] with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947)). "Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue. CSX Transp., 507 U.S. at 664 (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 77 L. Ed. 2d 490, 103 S. Ct. 2890 (1983)).

 "Congress' intent may be 'explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" Cipollone, 505 U.S. at 516 (quoting Jones v. Rath Packaging Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977)). "In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law . . ." Id. (citing Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190, 204, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983)). In addition, state law is preempted if the "federal law so thoroughly occupies a legislative field 'as to make reasonable the inference that Congress left no room for the States to supplement it.'" Id. (quoting Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (quoting Rice, 331 U.S. 218 at 230, 73 L. Ed. 2d 664, 102 S. Ct. 3014)).

 Defendant asserts that both the Locomotive Boiler Inspection Act and the Federal Railroad Safety Act provide grounds for ...

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