Third Circuit -- MD Mall Associates v. CSX Trans Inc

Issue raised for the first time on appeal isn't barred by waiver where the issue is one of public importance.

No judicial estoppel where the party did not benefit from the inconsistent positions.

No express preemption where the federal statute does not address the same harms as the state statute.

Remand for determination of conflict preemption.

Dissent: preemption analysis should consider the impact of the statute, not the intent.

MD Mall Associates v. CSX Trans Inc