Cottles v. Norfolk Southern Rwy. Co., [Ms. 1140632, Mar. 17, 2017] __ So. 3d __ (Ala. 2017) (on rehearing). The Court overrules Norfolk Southern’s Application for Rehearing and again emphasizes that POM Wonderful LLC v. Coca-Cola Co., 573 U.S. __, 134 S.Ct. 2228 (2014) is correctly construed so that Federal Railroad Administration Regulations do not preclude Federal Employers Liability Act-based claims. The Court rejected Norfolk Southern’s assertion that the Court had made the plaintiff’s argument for him in citing and relying upon POM Wonderful. While the Court acknowledged that the plaintiff’s brief on original submission did not discuss federal statutory preclusion or POM Wonderful, Norfolk Southern’s appellee’s brief had raised the issue as a basis for defending the trial court’s entry of summary judgment in its favor. Having raised the issue, it could not be heard on rehearing to complain when the Court elected to address the issue in its opinion.
