# Reply Brief — Norfolk Southern Ry. Co. v. Sorrell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0235%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2007 - **Citation:** 549 U.S. 158 ## Text FILED | SEP 2.8 2006 No. 05-746 OFFICE OF THE CLERK IN THE Supreme Court of the United States | NORFOLK SOUTHERN RAILWAY COMPANY, Petitioner, Vv. TIMOTHY SORRELL, Respondent. On Writ of Certiorari to the Missouri Court of Appeals REPLY BRIEF OF PETITIONER LAURA D. HUNT CARTER G. PHILLIPS* SENIOR GENERAL ATTORNEY STEPHEN B. KINNAIRD LAW DEPARTMENT ERIC A. SHUMSKY NS CORPORATION JULIE A. GURLEY 3 Commercial Place RUTHANNE M. DEUTSCH Norfolk, VA 23510 SIDLEY AUSTIN LLP (757) 629-2600 1501 K Street, N.W. Washington, D.C. 20005 JAMES W. ERWIN (202) 736-8000 DAVID DICK THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 (314) 552-6000 Counsel for Petitioner September 28, 2006 * Counsel of Record WILSON-EPES PRINTING CoO... INC. — (202) 789-0096 — WASHINGTON, D.C. 20001 cal eap ia é ents poke FS sor ou hee a as: | Lai etiaF4 tos ase e Sa | . sy ate an Mae tay yore te Sa a aehapaet ten mead bs oe ‘ * =» &, ae eee tA RRA at ok tain? Pade eer ey —— dhl oe . Mo Goaweed Hee Pate ; HE Svar Sor Bey ets Meade i Micky ork bays et coe pa ess Sate sd, pe es > Teer ~ he te = 0 tt Se ‘ per wt, So As A Ee iccichcintinlniinsoensiiadiaisiaieateseniiasduintinds 18,19 Director, OWCP v. Greenwich Collieries, 512 CAs OF Asap cicinhciceresvclsiictinahiciabuscpibiteadaneeaies 20 Director, OWCP v. Newport News Shipbldg. & Dry Dock Co., 514 U.S. 122 (1995) woe ceeceeeees 5 Egslaer v. Scandrett, 151 F.2d 562 (7th Cir. SUD cpcipsisistneictys Saieibneinioasin Gabibencseniniaseligtidivciiniatgdliiions 17 Gallick v. Baltimore & Ohio R.R., 372 U.S. 108 PP Ue icssnctebsidesioeisiestioainineisiabanisédedpiiaaitnibindgandatssanidenes 18 Gasoline Prods. Co. v. Champlin Ref. Co., 283 otis GPG Ie Ricisenshinadchetmnissiamidablaspanesiciiiiennbonnises 5 Illinois v. Gates, 462 U.S. 213 (1983).............. cece 2,3 iii TABLE OF AUTHORITIES — CONTINUED Page Illinois Cent. R.R. v. Skaggs, 240 U.S. 66 (1916)... 6 Inman v. Baltimore & Ohio R.R., 361 U.S. 138 EB IE cs dinceeiedcdpiidpiioeie bitindackhtasapeivtocndeiletipsivaiesniiniecsctinee 19 Kernan v. American Dredging Co., 355 U.S. 426 “ERI acinsiinssiccsoausscdiotiahsjicipsacten kieiamdippsasiiiadinciabtes 19 Lang v. New York Cent. R.R., 255 U.S. 455 GR IINEEE D ecnccteisesinsdinibcsetentinadlivas estiaantuinentiolinnshnpigddlinininbies 13 Leake v. Burlington N. R.R., 892 $.W.2d 359 CR C2: FAR, FU Revciosatcatontnramisindaatenstntoennentonssee 9 Lebron v. National R.R. Passenger Corp., 513 CA Pe CPE Ph tihnisdatoucleianaibiseiedapapabesébiwibiadysusiba 9 Louisville & Nashville R.R. v. Layton, 243 U.S. BOUT ELITE Piiciahs kisah shicscictindischssuncnosiaiptiasbdlimonetacicmabasicon 19 Marazzato v. Burlington N. R.R., 817 P.2d 672 SONI OED cicccsindesstnsnntsghitp bbls cenglatpeipapeenbesiogidicbvanies 20 Mapp v. Ohio, 367 U.S. 643 (1961) ......cccccceseeeeeees 9 McCrowell v. Southern Ry., 20 S.E.2d 352 (N.C. SERRE IPR E See: ROR Oe ¢ RNP A OAS OAT TOR 16 Metro-North Commuter R.R. v. Buckley, 521 U.S. 424 (1997)... ccceceees asidaeguteditbhibaeliebiabskabhdidiebuneieis 20 Milwaukee & St. Paul Ry. v. Kellogg, 94 U.S. 469 -; TTT ci ciilicsciicinitisligeitesiitusiuijilsdptnapaliipeypishbiaaisilioniinie 13 Minneapolis & St. L. R.R. v. Gotschall, 244 U.S. FO eich icitenshied crnsoscresechcigchesadctenlansganciihciiienalioniche 19 Monell v. Department of Soc. Servs., 436 U.S. ee i esidctieatecciiciuiestnsbcieaniaandieidnesitehattandahieiniaats 20 Monessen Sw. Ry. v. Morgan, 486 U.S. 330 1 SEAR A CNG E Be We Ye Ree SONS AY. ts TPR EID 5,8 New Hampshire v. Maine, 532 U.S. 742 (2001)... 9 Norfolk S. Ry. v. Schumpert, 126 S. Ct. 663 RBS SSRN SALE SO AS Soy te TEE 11 Norfolk & W. Ry. v. Ayers, 538 U.S. 135 (2003).... 5, 12 Norfolk & W. Ry. v. Earnest, 229 US. 114 iv TABLE OF AUTHORITIES — CONTINUED Page Northwestern Pac. R.R. v. Bobo, 290 U.S. 499 ty. ERR ILE Cae SEV EIEN ICO R DTW END: 13 Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 Ca iictnncisdpsdesdntsicinpcniiidintaetilbaaiti thai nee haiti 4 Palazzolo v. Rhode Island, 533 U.S. 606 (2001)... 3 Posen v. Sitecon, LLC, No. 86239, 2006 WL. 1774131 (Ohio Ct. App. June 22, 2006).............. 7 Ricketts v. Kansas City Stock Yards Co. of Me., 484 S..W.2d 216 (1972)..........ccccseccsscseescoreseossereees 9 Rodopoulos v. Sam Piki Enter., Inc., 570 So. 2d GEE CRED, TIO bithinhotinittbasnsddeaion 6 - Rogers v. Missouri Pac. Ry., 352 U.S. 500 EDIE FPiachisaocs inntensicctanetnicbeloiicgslobaneaseniedael 5, 8, 15, 16, 17 Rumsfeld v. Forum for Academic & Inst’l Rights, Inc., 126 S. Ct. 1297 (2006).............sceececereeeseeeeee 3 Schacht v. United States, 398 U.S. 58 (1970).......... 4 Seaboard Air Line Ry. v. Tilghman, 237 U.S. 499 _ .- BDC piccasickthacbediiiedlasacssetiubicidsguisbabsisiaapaidediehidedighes 6 Shalala v. Illinois Council on Long Term Care, Wine. FES UD. F Ce eisai tcdsnasicipestpiaatstiorsiocics 14 St. Louis-S.F. Ry. v. Mills, 271 U.S. 344 (1926)... 13 Tennant v. Peoria & Pekin Union Ry., 321 U.S. DD CROO) os sstevintnsciitiliotabilcnsnnsstilaiiminintangssibeteass 10, 13 Thompson v. Hirano Tecseed Co., 456 F.3d 805 CR Rs. BO iinkedecscnoiesesciretshnmbaiocictumibapebeiiediien 7 Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 CPB schvickisnsicesistnsiseostnitanidnisnialenaicbbiadciaiisaaies 14,17 United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967), overruled on other grounds, Conti- nental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. BOD CGT Th ninscshitnancisasspiiinnssioipiipaiciiitidinilasaialtpinginsdsiiadgel 9 United States v. Gonzales, 520 U.S. 1 (1997)......... 10 United States v. Price, 361 U.S. 304 (1960)........... 14 United States v. Wells, 519 U.S. 482 (1997)........... 9 TABLE OF AUTHORITIES — CONTINUED Page U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 II sticdeitiiendintibeasedebintebsakidienniiibiadadmdaiemdndbebetinns 4 Urie v. Thompson, 337 U.S. 163 (1949) ..........ccc000 8,19 Vance v. Terrazas, 444 U.S. 252 (1980)................. 11 Virginia Bankshares, Inc. v. Sandberg, 501 U.S. SEPA Dichdibicenticusavinnsbnntaieantne scsseescassasenssessess 9 Wainwright v. Sykes, 433 U.S. 72 (1977) «0.0.00 3 Yee v. City of Escondido, 503 U.S. 519 (1992)....... 3 Zedner v. United States, 126 S. Ct. 1976 (2006)..... 9 STATUTES its MII cintncatincinisietsiinthciriniobalnnaphanntisiasinintlen 12, 15 ir cia cinch vibietieanteniecibanndenttehinienansindetiosiaguitien 6,7 rai ahiiieh niiniietselinpiddcciadiilnscdkdnendiniedsinetiese 13 RULES EEG ARLES a CAD DOTS OOF “10 Be ee et i FT ec indisccnnenocconeinesnineneessntbnsaguncins 20 LEGISLATIVE HISTORY H.R. Rep. No. 60-1386 (1908) ............ccccccceeseeeeeees 7 SCHOLARLY AUTHORITY W. Page Keeton et al., Prosser and Keeton on the Law of Torts (Sth ed. 1984) ..........cccccccceceeseceeeenees 7 OTHER AUTHORITY Restatement (Second) of Torts (1965) ................-..« 7 A Ge bacon. ocak nash + . 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Oy Orr rae yee ry eee) CV hat) ite he ‘ PORTED ae a cee: Ma 2 se 4s hiepae penton eae bts Ploeg » 1% Paci Ch ae er Soeet adage’ rete ds: hate 4 i PT + pee! tha petite ror AP wg Bi rot Tales hes Ath et siti ee Seer ape pl re apa” p pti ame gy «ance Alc ge Nae | A Em ee NY el Mn Ho a ean BiB ct ane cette tae linen {ot Pea A nares a ee edeene ain retenarnbigs tang ee ee ee ee pepe dat ance: ead peed. ne iyieee alsa pra ph apn Pettey ritait Ripe oy eo mr ate REPLY BRIEF Missouri is the only jurisdiction in the United States that in- structs juries to apply a different and more stringent standard of causation to contributory negligence than to railroad negli- gence under the Federal Employers’ Liability Act (FELA). Missouri is both stubborn and wrong. Nothing in the statu- tory language supports its rule. The long-established rule of the common law (and of admiralty and comparative negli- gence schemes) both in 1908 and today is that defendant neg- ligence and contributory negligence are measured by the same standard: proximate cause. In any event, divergent causation standards are irreconcilable with the comparative negligence scheme of FELA, and the Missouri asymmetry must be re- jected no matter whether proximate or slightest cause is the proper standard. Respondent has no answer for any of these points, and his contention that the writ should be dismissed — because purportedly this Court cannot decide what causation standard governs railroad negligence — has no substance. I. THE MISSOURI RULE OF DIVERGENT CAUSA- TION STANDARDS SHOULD BE REJECTED. 1. Respondent begins by urging this Court to dismiss the writ as improvidently granted, signaling an inability to defend the Missouri rule on the merits. Indeed, his argument for dis- missal of the writ is an exercise in confusion, directed not at the question presented, but at one set of arguments that Nor- folk Southern (“NS”) has made in favor of reversal. The sum and substance of respondent’s argument for dis- missal of the writ is that NS waived “any challenge to the in- struction on railroad negligence” by not objecting below to that instruction. Resp. Br. 1. This argument wholly misses the mark. That argument would only be relevant if NS had asked this Court to review its liability, and if the railroad had not objected to the instruction resulting in that liability and the Missouri Court of Appeals had not passed on the issue. But NS has sought review of the judgment for instructional error in the apportionment of damages, on the grounds that 2 FELA does not require a higher showing of causation for con- tributory than for railroad negligence. Pet. (i), 12-15. Respondent does not dispute that this Court has jurisdiction over the question presented. The question presented in the petition is “[w]hether the court below erred in determining ... that the causation standard for employee contributory negli- gence under the Federal Employers Liability Act (““FELA”) differs from the causation standard for railroad negligence.” Pet. (i). This Court will exercise jurisdiction to decide a fed- eral question pressed or passed on in the state court below. Illinois v. Gates, 462 U.S. 213, 217-24 (1983) (declining to decide whether that rule is prudential or jurisdictional). Here, the question presented was both pressed and passed on below. NS argued below that the causation standards for railroad and contributory negligence should be the same and asked that the same causation instruction based on the “whole or in part” language of section 1 of FELA be given for both railroad and employee negligence. See J.A. 9-10; Pet. App. 28a-29a (ar- guiag that MAI 32.07 on contributory negligence “misstates the law because that is a different standard” which requires the defendant’s proof to meet “a much more exacting sian- dard” than the instruction on railroad negligence). NS re- newed this issue in the court below, and the Missouri Court of Appeals decided that issue adversely: Norfolk contends that in a FELA case where contribu- tory negligence is an issue, the causation standard should be the same as to the plaintiff and the defendant. How- ever, Rule 70.02 provides that whenever “Missouri Ap- proved Instructions contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any instructions on the same subject.” Here, the instruction patterned after MAI 32.07(B) was the correct instruction. MAI 32.07(B) has been determined to be the applicable instruction in cases such as the present case. Thus we cannot convict the 3 trial court of error in giving the applicable MAI as de- termined by the Supreme Court of Missouri. Pet. App. 7a. Respondent instead makes the novel argument that even if the question presented was both pressed and passed on below, this Court should not decide that issue because NS has also asked this Court to clarify the legal standard of causation for railroad negligence in the process of correcting the obvious legal error. Resp. Br. 13-18. This contention has no force. This Court always has discretion to decide “a question ante- rior to” the question presented, Ballard v. Commissioner, 544 U.S. 40, 47 n.2 (2005), regardless of what the parties argued below (or even in this Court).' There can be no doubt that the causation standard for railroad negligence is anterior to the question of whether FELA permits divergent causation stan- dards for railroad and contributory negligence, and thus within the Court’s province to decide. But even if this Court were inclined to decide only the precise question presented, the answer is to save the proximate cause issue for another day.” The Court still needs to eliminate Missouri’s plain mis- ' This Court may reach any issue “so connected with [the question pre- sented] in substance as to form but another ground or reason for alleging the invalidity of the lower court’s judgment.” //linois v. Gates, 462 U.S. 213, 220 (1983) (alteration and internal quotation marks omitted). “Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Yee v. City of Escondido, 503 U.S. 519, 534 (1992); see also Rumsfeld v. Forum for Academic & Inst'l Rights, Inc., 126 S. Ct. 1297, 1304 (2006) (“granting certiorari to determine whether a statute is constitutional fairly includes the question of what that statute says,” and the Court need not “accept an interpretation of a statute simply because it is agreed to by the parties”). Furthermore, respondent’s objection to the consideration of the causation standard for railroad negligence is both unfounded and waived. /nfra part Il. * See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (“We leave open for resolution in future decisions the precise definition of the ‘cause’-and- ‘prejudice’ standard, and note here only that it is narrower than the stan- dard set forth in dicta in Fay v. Noia, 372 U.S. 391 (1963) .... ”); Palaz- zolo v. Rhode Island, 533 U.S. 606, 631-32 (2001) (deciding case as it 4 reading of FELA. The question of divergent standards is of substantial importance and is the basis of a circuit conflict, Pet. 12-15; even if arguendo Congress did intend to eliminate proximate cause, there is no warrant for the aberrant Missouri rule that is irreconcilable with a comparative negligence scheme, and stacks the deck against railroads. Respondent can conjure no reason why this Court cannot decide the question on this limited basis, so he makes the false statement that NS has “abandoned” the position that equivalent causation standards are necessary under the “slightest cause” rule. Resp. Br. 2. NS has abandoned noth- ing. It has consistently argued in the alternative, both at the petition and the merits stage, that FELA does not permit di- vergent causation standards for railroad and contributory neg- ligence, even if the proper standard for the former is “slightest cause.” Pet. 14-15; Pet. Reply Br. 8; Petr. Br. 49-50 (“Alter- natively, if this Court were to rule that ‘slightest cause’ is the standard that a jury should apply to railroad negligence, there is no basis for maintaining divergent standards, and that same standard must be applied to claims of employee contributory negligence as well. Page v. St. Louis Sw. Ry., 349 F.2d 820, 823 (Sth Cir. 1965).”).° “comes to us on the premise that petitioner’s entire parcel serves as the basis for his takings claim”); see also BE&K Constr. Co. v. NLRB, 536 U.S. 516, 537 (2002); U.S. Term Limits, Inc. vy. Thornton, 514 U.S. 779, 829 (1995); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 423 (1990), Schacht v. United States, 398 U.S. 58, 62 (1970). * Finally, it is hard to fathom the contention that this Court would ren- — der an advisory opinion if it decided this case. If this Court rules that the same standard of proximate cause applies to both contributory negligence and railroad negligence, NS is entitled to a new trial because MAI 32.07 added a “directly” requirement to the statutory language to connote proximate cause for contributory negligence only, misleading the jury by requiring a more stringent level of proof. If the Court agrees with respon- dent that the standard for railroad negligence is “slightest cause,” but agrees with NS that the same standard must apply to comparative negli- gence, NS would likewise be entitled to a new trial because it did not re- ceive an equivalent instruction for contributory negligence. If the Court leaves open the question of the content of the standard, but simply holds 5 2. On the merits, respondent is unable to defend the Mis- souri rule. Respondent argues that FELA enacts a bizarre comparative negligence scheme that imposes different causa- tion standards on plaintiffs and defendants. In so doing, he forsakes any analysis of the statute, the common law, and this Court’s longstanding FELA precedents. He stakes his entire position on the untenable claim that Rogers v. Missouri Pa- cific Railway, 352 U.S. 500 (1957), overruled a half-century of this Court’s precedents (despite his vehemence that the Court not decide the point) and on “that last redoubt of losing causes, the proposition that the statute at hand should be lib- erally construed to achieve its purposes.” Director, OWCP v. Newport News Shipbldg. & Dry Dock Co., 514 U.S. 122, 135 (1995). Tellingly, respondent finds no support in the statutory lan- guage of FELA for a scheme of divergent causation stan- dards. Indeed, he steadfastly ignores the longstanding rule that Congress is not deemed to have departed from the com- mon law in FELA unless it did so expressly. Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 145 (2003); Monessen Sw. Ry. v. Morgan, 486 U.S. 330, 337-38 (1988). NS has demonstrated that the rule at common law in 1908 was (and today still is) that the same causation standards ap- ply to both defendant and contributory negligence. Petr. Br. 12-14. Respondent makes no effort to dispute this. Thus, in order to show that FELA departed from this common law rule, respondent must point to an explicit alteration of that that FELA requires equivalence, then for the same reasons, the trial court on remand would grant a new trial. Moreover, because the error on re- view pertains to apportioning damages, it will be necessary on remand to grant a full new trial, since “the question of damages ... is so interwoven with that of liability that the former cannot be submitted to the jury inde- pendently of the latter without confusion and uncertainty, which would amount to a denial of a fair trial.” Gasoline Prods. Co. vy. Champlin Ref. Co., 283 U.S. 494, 500 (1931). Obviously, the court on remand would benefit from direction from this Court concerning the proper meaning of causation under FELA. 6 rule in the statute. He cannot do so. Not only is there no express departure, but there also is no basis for imputing to Congress an intent to depart from the common law rule of equivalence. Congress looked to both emerging comparative negligence schemes and admiralty in fashioning FELA; under each of those legal regimes in 1908, the same causation standard applied to both defendant and plaintiff negligence. /d. at 14-17. Nor can respondent find © support in the current common law. Under modern common law (as well as admiralty and comparative negligence sys- tems), once again the same standard of causation applies to both plaintiff and defendant negligence. /d. at 19-21. Divergent causation standards are also inimical to the op- eration of the FELA comparative negligence scheme. Con- gress directed that contributory negligence shall not bar a re- covery, but that the damages shall be diminished by the jury “in proportion to the amount of negligence attributable to such employee.” 45 U.S.C. § 53. This provision requires a juss to determine the total “causal negligence,” and divide damages according to the respective shares of the total negli- gence attributable to the railroad and to the employee. Sea- board Air Line Ry. v. Tilghman, 237 U.S. 499, 501 (1915). The intent is that the railroad would “‘be responsible to the extent 1c which it was to blame, and the plaintiff would be responsible himself to the extent to which he was to blame.”” Illinois Cent. R.R. v. Skaggs, 240 U.S. 66, 73 (1916). Thus, under FELA, damages are apportioned according to relative negligence, not relative causal contribution. Respondent diverts the Court’s attention to a few state-law schemes allowing comparison among parties liable for differ- ent kinds of fault. Resp. Br. 43-46.° But in FELA the only * Even as to these few schemes, respondent fails to support his claim that there are material differences in causation standards. Although inten- tional acts may alter the causation analysis, Rodopoulos v. Sam Piki En- ter., Inc., 570 So. 2d 661, 665 (Ala. 1990) (a broader range of harms are considered proximately caused by intentional torts), causation that is a substantial factor in the injury, whether denominated legal or proximate 7 kind of fault that is compared is the negligence of the railroad and employee. 45 U.S.C. § 53. There is no system anywhere in the law that subjects the negligence of plaintiff and defen- dant to different causation standards in determining responsi- bility for a single injury, and it would be particularly anoma- lous to adopt such a rule when the entire purpose of FELA is to divide damages according to relative negligence. Congress did not fashion a novel scheme of divergent causation stan- dards that will, in a fair number of cases, prevent the just ap- portionment of damages on the basis of relative negligence, especially one that would come at the price of confusing a jury with the application of different causation standards to the same injury. Petr. Br. 47-48. Even if arguendo the Mis- souri rule were not wholly unworkable, the traditional rule of equivalent causation standards is far more consonant with the congressional purpose to make “each party responsible for his own negligence, and require{] each to bear the burden thereof.” H.R. Rep. No. 60-1386, at 1 (1908). At the end of the day, respondent resorts to the putative broad purposes of the Act to maximize plaintiff recovery, ar- guing that FELA should be interpreted to function like a worker’s compensation statute (albeit with full recovery of tort damages). Resp. Br. 3, 22-23. But Congress rejected the European worker’s compensation models in favor of the emerging comparative negligence models of the states, retain- ing common-law rules except insofar as it expressly departed therefrom. Consolidated Rail Corp. vy. Gottshall, 512 U.S. 532, 543 (1994); Petr. Br. 15-17. This Court has disapproved cause, is required for all actions for damages in tort. Restatement (Sec- ond) of Torts § 9 (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 43 (Sth ed. 1984); Posen v. Sitecon LLC, No. 86239, 2006 WL 1774131, at *4 (Ohio Ct. App. June 22, 2006) (“*It is not suffi- cient to demonstrate that injury was substantially certain to occur,” for “{cJourts continue to require a plaintiff in an intentional tort case to estab- lish the proximate cause of his injuries”). Respondent (Br. 44) also im- plies that products liability or other forms of strict liability dispense with proximate cause. That is not true. Prosser & Keeton, supra, § 103; Thompson v. Hirano Tecseed Co., 456 F.3d 805, 812 (8th Cir. 2006). the view that FELA should be interpreted to maximize plain- tiff recovery, Morgan, 486 U.S. at 337-39, and has found common-law rules of causation consistent with its liberal pur- poses, Urie v. Thompson, 337 U.S. 163, 195 n.34 (1949). The purpose of the statute was to eliminate contributory neg- ligence as a bar to recovery, and instead make it a basis for apportioning damages. Congress did not seek to ensure maximum recoveries for employees who caused their own injuries in part through negligence; rather, Congress intended that such plaintiffs “not recover full damages, but only a pro- portional amount, bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.” Norfolk & W. Ry. v. Ear- nest, 229 U.S. 114, 122 (1913) (emphasis added). Respon- dent’s rule would subvert the purposes of the Act. Thus, no matter what causation standard applies to railroad negligence, the standard for contributory negligence should be the same. Il. PROXIMATE CAUSE IS THE PROPER STAN- DARD FOR BOTH RAILROAD AND CONTRIBU- TORY NEGLIGENCE. This Court should also clarify that the Missouri rule is based on a false predicate: namely, that Rogers v. Missouri Pacific Railway, 352 U.S. 500 (1957), abrogated the long- standing FELA rule that a plaintiff must prove that railroad negligence is a contributory proximate cause of the injury. This misconception causes much mischief in FELA litigation, and contrary to respondent’s claims this Court is free to de- cide this issue in resolving the question presented. 1. Respondent insists that even if the question presented were both pressed and passed on below, this Court is limited to deciding it on the grounds pressed or passed on below. Resp. Br. 13-18. As NS has already shown, that is not the law; in rendering judgment on the question presented, this Court is not constrained by the legal theories that a party ad- vocated below (or even continues to advocate in this Court). 9 See supra n.1 (citing Gates, Yee, and Rumsfeld).” Respon- dent’s complaint that NS has “taken a wholly inconsistent po- sition,” Resp. Br. 20, sounds in judicial estoppel, but respon- dent does not (and cannot) contend that estoppel applies. NS did not propose the instruction on railroad negligence, but simply did not challenge the binding MAI, Resp. Br. 6; it did not prevail below on either railroad or contributory negli- gence; and its position below did not prejudice respondent, who did prevail below on both issues. See Zedner v. United States, 126 S. Ct. 1976, 1987 (2006) (stating elements of judi- cial estoppel); New Hampshire v. Maine, 532 U.S. 742, 750 (2001). Instead, respondent’s unfounded rule of foreclosure would swallow the law of judicial estoppel.° * See also Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 378- 79 (1995) (ruling in favor of petitioner on grounds “expressly disavowed” below and not argued until the brief on the merits); City of Canton v. Har- ris, 489 U.S. 378, 384 (1989) (ruling in favor of petitioner who had con- ceded the key legal question below); United States v. Arnold, Schwinn & Co., 388 U.S. 365, 372 n.4 (1967) (ruling in favor of United States on changed theory), overruled on other grounds, Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977); Mapp v. Ohio, 367 U.S. 643 (1961) (deciding that exclusionary rule should apply to the States even though that issue was not presented below or in the parties’ briefs). ° Regardless, even the unfounded rule respondent advocates would not avail his cause. NS admittedly did not challenge in state court the long- standing decisions of the Missouri Supreme Court interpreting Rogers to reject proximate cause as the standard for railroad negligence, Ricketts v. Kansas City Stock Yards Co. of Me., 484 S.W.2d 216, 221-22 (1972) (en banc), and Missouri counsel did not make what (in light of those prece- dents) would have been a futile objection at trial to the MAI verdict- director instruction on railroad negligence. But although the proximate- cause argument was not pressed by NS below, it was passed on below: the Missouri Court of Appeals held that the proximate cause standard embod- ied in MAI 32.07, Leake v. Burlington N. R.R., 892 S.W.2d 359, 365 (Mo. Ct. App. 1995), applied to contributory negligence claims even though not to railroad negligence claims. Pet. App. 6a-7a. See Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099 n.8 (1991) (even where issue of causation not pressed, the court below addressed entitlement to relief, and thereby passed on causation); United States v. Wells, 519 U.S. 482, 488 (1997) (waiver rules of lower courts do not bind this Court). 10 In any event, it is too late in the day for respondent to raise these objections because he did not raise them in his brief in opposition to the petition for certiorari. After falsely stating that the petition nowhere raises the issue, (Resp. Br. 1), re- spondent grudgingly acknowledges (id. at 19) that NS spe- cifically argued in its petition — in the text, not in a footnote, and with accompanying citation — that.“[t]he predicate rule in Missouri that FELA eliminates the proximate cause require- ment for railroad negligence is contrary to federal law, see Davis v. Wolfe, 263 U.S. 239, 243 (1923); Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 32 (1944).” Pet. 14-15. Re- spondent claims that he has no obligation to object to legal positions that are not expansively argued in the petition. Resp. Br. 19. Rule 15.2 is to the contrary. It requires counsel to object “in the brief in opposition, and not later,” to “any perceived misstatemeut of fact or law in the petition that bears on what issues properly would be before the Court if certio- rari were granted.” Sup. Ct. R. 15.2 (emphasis added); United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Read natu- rally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’”). If omitted from the opposition, “[a]ny objection to consideration of a question presented based on what occurred in the proceedings below, if the objection does not go to jurisdiction, may be deemed waived.” Sup. Ct. R. 15.2. Thus, this Court has admonished that it “will not dismiss the writ as improvidently granted” when an objection that an issue was not pressed below is not stated in the brief in oppo- sition, for “‘[t}he decision to grant certiorari represents a com- mitment of scarce judicial resources with a view to deciding the merits ... of the question presented.” Canton, 489 U.S. at 384 (1989) (omission in original). Here, this Court decided to grant plenary argument rather than the summary reversal that NS requested in the alternative. Pet. 15-20. In so doing, this Court clearly understood that, in resolving the question pre- sented of whether the FELA causation standards for railroad and contributory negligence differ, the content of those stan- 11 dards would be placed in issue. Indeec, :espondent’s central contention in his brief in opposition was that “in Rogers, the Court held that FELA section 51 explicitly abrogates the em- ployer’s traditional common-law causation standard,” but that “neither the purpose nor plain language of FELA section 53 demands the same conclusion for the employee’s contributory negligence.” Opp. 5. Respondent further asked this Court to discount the earlier precedents on which NS relied because “they were all decided before Rogers definitively established that the defendant’s causation standard was not the traditional common-law measure, but rather the relaxed ‘in whole or in part’ causation standard.” Jd. at 6. The issue of the proper causation standard for railroad negligence was clearly joined in the petition-stage briefs. See also Pet. Reply 5-8 (rebutting these arguments). There is no prudential reason for this Court not to give the question presented plenary treatment, and to decide an ante- rior question that is fully and exhaustively briefed by both sides. Vance v. Terrazas, 444 U.S. 252, 258-60 & n.5 (1980) (deciding whether a statute requires proof of specific intent to renounce U.S. citizenship, despite Government’s change in position, because “the issue of intent is important, the parties have briefed it, and we shall address it”). The causation stan- dard for railroad negligence is a recurring and important pure issue of federal law. Carlson v. Green, 446 U.S. 14, 17 n.2 (1980).’ Finally, the defining question of whether Rogers overruled a series of this Court’s precedents is one that can only be resolved by this Court, and there is no conceivable NS and its affiliated companies have twice asked this Court in recent years to clarify the scope of Rogers and resolve the question of the proper causation standard for railroad negligence. Consolidated Rail Corp. v. Richards, 540 U.S. 1096 (2003); Norfolk S. Ry. v. Schumpert, 126 S. Ct. 663 (2005). Contrary to respondent’s assertion, Resp. Br. 2! & n.14, NS took the exact same position on causation in Ayers, 538 U.S. 135, that it does today. See Ayers Reply Br., at 18 (“The longstanding rule of causa- tion under FELA before and after [Rogers and other decisions] is proxi- mate cause”) (discussing authorities). 12 benefit from awaiting further percolation in the circuits (given that almost every circuit has resolved the issue one way or the other and is unlikely to change its rule). 2. Respondent’s position that Rogers abrogated the rule of contributory proximate cause is indefensible. The FELA “abolished the fellow servant rule”; “rejected the doctrine of contributory negligence in favor of comparative negligence”; “prohibited employers from exempting themselves from the FELA through con- tract”; and, in a 1939 amendment, “abolished the as- sumption of risk defense.” [Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542-43 (1994)]; see 45 U. S.C. §§ 51-55. “Only to the extent of these explicit statutory alterations,” however, “is the FELA ‘an avowed depar- ture from the rules of the common law,”” Ayers, 538 U.S. at 145 (ellipsis and brackets omitted). Respondent cannot point to any express statutory departure from the common law rule of proximate cause. This is with good reason: As NS has demonstrated, FELA’s authorization of recovery if the injury or death “result[ed] in whole or in part from the [railroad’s] negligence,” 45 U.S.C. § 51, is nota departure from the common law, but is and was the common- law rule under prevailing conceptions of proximate cause for both defendant and contributory negligence. Petr. Br. 29-33. Respondent does not dispute the many cases and authorities NS cites for that proposition. Instead, he offers the weak and circular rejoinder that the pre-1908 cases NS cites “neither interpret that language in a statutory context nor consider whether the phrase bears on the applicable causation stan- dard.” Resp. Br. 24 n.17. That is precisely the point; those cases establish the common-law rule that is presumed to have been adopted in FELA absent an express departure. Not only was “in whole or in part” the prevailing common- law rule, but this Court has long interpreted this statutory lan- guage to incorporate proximate cause: the plaintiff must prove that “negligence was the proximate cause in whole or in part” 13 of the employee’s injury. Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 32 (1944) (emphasis added). Respondent suggests ‘that the many pre-Rogers cases on proximate cause should be discounted because (1) before Rogers this Court supposedly never had the “opportunity to address the appro- priate causation standard for railroad negligence” and the term was never “essential to [the] decision,” Resp. Br. 34, and (2) the 1939 Amendments supposedly “clarif[ied]” that proxi- mate cause is not the rule, id at 23 & n.15. Both statements are demonstrably false. As to the first, the rule of proximate cause was essential to a number of this Court’s decisions granting judgment as a matter of law to defendants for lack of proof of proximate cause. Lang v. New York Cent. R.R., 255 U.S. 455, 461 (1921); St. Louis-S. F. Ry. v. Mills, 271 U.S. 344, 347 (1926); Northwestern Pac. R.R. v. Bobo, 290 U.S. 499, 503 (1934). Moreover, in at least two cases prominently featured in NS’s brief (Br. 27-28), yet not distinguished or even cited by re- _ spondent, this Court explicated the content of that standard in detail. Davis v. Wolfe, 263 U.S. 239, 243 (1923); Brady v. Southern Ry., 320 U.S. 476, 483 (1943) (adopting the proxi- mate-cause rule of Milwaukee & St. Paul Railway v. Kellogg, 94 U.S. 469, 475 (1876)). More fundamentally, no concept of “proximate. cause” can be reconciled with respondent’s “slightest cause” concept, which is a rule of but-for causation. Petr. Br. 45-47. Respondent’s claim that the 1939 Amendments clarified that FELA abolished proximate cause is even more far- fetched. Those amendments did not modify FELA’s negli- gence or contributory negligence provisions, and indeed did no more than restate the statutory language of section | in the new provision abolishing the defense of assumption of the risk where the employee’s “injury or death resulted in whole or in part” from the railroad’s negligence. 45 U.S.C. § 54. By simply restating the statutory language from section 1, Congress is presumed to have accepted this Court’s then ex- 14 isting gloss on the term (i.e., that it required proximate cause). Cannon v. University of Chi., 441 U.S. 677, 698-99 (1979). Because section | already connoted proximate cause, the railway union general counsel advised the House committee that it would only add confusion to use different language re- ferring to proximate cause in the amendment. Petr. Br. 33. It is always hazardous to interpret a statute based on the claimed interpretation of a later Congress, United States v. Price, 361 U.S. 304, 313 (1960), but respondent’s imputation that Con- gress overrode prior interpretations of statutory language by simply restating that language in a new provision is ground- less. Regardless, this Court has declared after the 1939 amendments that the jury must still decide whether the car- rier’s “negligence was the proximate cause of the injury.” Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 67 (1943). Respondent thus cannot prevail unless Rogers silently over- ruled the 20-odd cases in which this Court had recognized proximate cause as the proper standard under FELA. As an initia! matter, there is a heavy presumption against respon- dent’s reading of Rogers, given the special force of stare de- cisis in statutory cases, Petr. Br. 40, and given that “this Court does not normally overturn, or ... dramatically limit, earlier authority sub silentio.” Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18 (2003). NS has shown that Rogers did not overrule any of this Court’s proximate cause cases, and simply states the test of a jury case when the evidence would permit a jury to find that railroad negligence is one among multiple possible proximate causes of the injury. Petr. Br. 34-42. Even though the jury instruction given in Rogers was not contested before or dis- approved by this Court, respondent seeks to convert Rogers into a holding that forbids juries to be given a proximate- cause instruction. Respondent claims that Rogers “defini- tively” held that FELA does not “require[] proof of proximate causation for a railroad to be liable,” Resp. Br. 26-27, but he reaches that conclusion by ignoring what this Court said. 15 Rogers held that the state court erred in requiring the jury to “exclude the idea that [the employee’s] injury was due to causes with which the defendant was not connected,” 352 U.S. at 505-06, based on “language of proximate causation which makes a jury question dependent upon whether the jury may find that the defendant’s negligence was the sole, effi- cient, producing cause of injury.” Jd at 506 (emphasis added). In Rogers, Missouri’s antiquated common-law con- cept of “sole” proximate cause was contrary to the statutory rule rendering railroads liable for injuries resulting “in whole or in part” from railroad negligence, 45 U.S.C. § 51, and to this Court’s longstanding rule of “contributory proximate cause,” Coray v. Southern Pac. Co., 335 U.S. 520, 523 (1949); Carter v. Atlanta & St. Andrews Bay Ry., 338 US. 430, 435 (1949). See Rogers, 352 U.S. at 506-07 & nn.11, 13, 14 (relying on proximate-cause cases, Petr. Br. 37-39). Respondent’s position — that Rogers abrogated the “contribu- tory proximate cause” rule under FELA by relying on prece- dents enforcing that rule and rejecting a contrary state com- mon-law rule of sole proximate cause — makes no sense. Respondent claims support from the following statement in Rogers (which he quotes selectively, Resp. Br. 26): The kind of misconception evidenced in the opinion be- low, which fails to take into account the special features of this statutory negligence action that make it signifi- cantly different from the ordinary common-law negli- gence action, has required this Court to review a number of cases. Rogers, 352 U.S. at 509-10. -But the “misconception evi- denced in the opinion below,” as the Court had just discussed, is that a railroad is only liable if the evidence shows that the railroad’s negligence was the sole proximate cause, and ex- cludes any possible finding that the injury “was due to causes with which the defendant was not connected,” such as the © employee’s contributory negligence. Jd. at 505-06. In a tra- ditional common law action where contributory negligence 16 was at issue, that would have been the rule: if the defendant’s negligence and the plaintiff's negligence both proximately caused the injury, then the defendant was not liable, because contributory negligence was an absolute defense. See, e.g., McCrowell v. Southern Ry., 20 $.E.2d 352, 357 (N.C. 1942) (under the common law, “the proximate contributory negli- gence of the plaintiff, however small the contribution, will bar recovery, and justify the withdrawal of the case from the jury under the single inference rule when the evidence warrants it”); Curlee v. Southern Ry., 115 S.E. 628, 630 (S.C. 1923) (same). But a FELA action is significantly different because it abolishes the absolute defense and makes contributory negli- gence a rule in mitigation of damages, thus making the rail- road liable if its negligence causes the injury “in part” even if the employee also contributes in part to the injury. Rogers, 352 U.S. at 505-08 & n.12 (quoting 45 U.S.C. § 53, the con- tributory negligence provision). Congress intended for juries (not courts) to make the determination of whether the em- plover’s negligence played any part in the injury, id. at 509- 10, and thus the Rogers Court “reach{ed] the same conclusion in this case” as it had “[i}n a relatively large percentage of ... cases” that the lower courts had erred in taking away the question of the railroad’s liability from the jury. Jd. Rogers was a case about sufficiency of the evidence under estab- lished federal standards; it did not announce a sea change in FELA law by abolishing the settled understanding of proxi- mate cause. Respondent also misplaces reliance on another passage from Rogers, which again he selectively quotes (Br. 26): The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases to- day rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the sub- ject of the suit. Rogers, 352 U.S. at 508-09. But respondent ignores the case 17 that Rogers cites in the accompanying footnote 16 to support that proposition: Tiller v. Atlantic Coast Line R.R., 318 U.S. 54 (1943). The quoted sentence from Rogers is a paraphrase of the following statement from Tiller: The Act of 1908 and the amendment of 1939 abolish the [assumption of the risk] ... defenses and authorize com- parison of negligence instead of barring the employee from all recovery because of contributory negligence. They leave for practical purposes only the question of whether the carrier was negligent and whether that neg- ligence was the proximate cause of the injury. Id. at 67 (emphasis added). Rogers simply applied that rule to the case where, as it had already determined, the jury had a choice of finding that either railroad or employee negligence proximately caused the injury, 352 U.S. at 503-04; the case could not be taken away from the jury so long as there was evidence from which it could find that the “negligence of the employer played any part, however small, in the injury.” /d. at 508. This was the established rule in FELA cases — the railroad was liable if its negligence was a proximate cause, no matter how slight its contribution relative to other causes — a point that respondent does not contest. Petr. Br. 38-39 (citing cases). Rogers broke no new ground, and there is no basis for claiming that it abrogated the settled proximate cause rule.* * it is passing strange that respondent (Br. 35-36) endorses Egs/aer v. Scandrett, 151 F.2d 562 (7th Cir. 1945), as the proper statement of FELA causation. Egsi/aer states exactly the rule that NS says that Rogers adopts: namely, that FELA dispenses with “the old concept of proximate cause” as the “direct, the complete, the responsible, the efficient cause of the in- jury,” to the exclusion of “[cjontributing” causes. /d. at 565-66 (emphasis added). This is also exactly what the petitioner argued in Rogers: vindica- tion of the federal rule of contributory proximate cause, Brief for Peti- tioner at 4, 9, 19, 24-26, Rogers v. Missouri Pac. R.R., 352 U.S. 500 (1957) (No. 28), and rejection of Missouri’s “old concept of proximate cause,” wherein “th[e] cause must have been direct, the complete, the re- sponsible, the efficient cause of the injury,” id. at 25 (emphasis added). Respondent claims that the losing party’s rehearing petition supplies the proper gloss on Rogers, Resp. Br. 32-33, but the natural inference is that 18 Respondent fails in his attempt (Br. 27-28) to argue that later cases of this Court embrace his reading of Rogers as ab- rogating proximate cause as the substantive rule on which the jury should be instructed. Gaillick v. Baltimore & Ohio R.R., 372 U.S. 108 (1963), favors NS. In that case, the jury had been instructed it must find proximate cause, and rendered a special verdict “that the injuries to the plaintiff [were] proxi- mately caused by the acts or omissions of the defendant.’” Jd. at 111 (e'lipses omitted). This Court reversed the lower court’s grant of a judgment as a matter of law to the defen- dant, applying the test for the review of sufficiency of the evidence of proximate causation in Tennant, which leaves to the jury the resolution of conflicting inferences of causation. Id. at 114-15. Importantly, this Court characterized Rogers as one of the “[I]ater Federal Employers’ Liability Act cases in- volving sufficiency of the evidence on causation where sev- eral explanations are plausible [that] follow the teaching of the Tennant case” (i.e., that plausible inferences of proximate cause are for the jury). /d. at 115-16. In Gallick, there were several competing possible causes of the insect infestation resulting in injury that were unconnected to the railroad (in- cluding pollution of the Cuyahoga River by others and “‘un- sanitary places situated on property not owned or controlled by the railroad,”” id. at 112). This Court upheld the jury ver- dict because the “‘the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negli- gence played any part in producing the injury’” even if “‘from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes.” Jd. at 116- 17 (emphasis added and ellipses omitted) eneng Rogers, 352 U.S. at 506-07). this Court denied rehearing because its opinion was fully consistent with its proximate-cause precedents. * Dennis v. Denver & Rio Grande W. R.R., 375 U.S. 208 (1963) (per curiam), likewise finds sufficiency of the evidence under Rogers to sup- port the jury’s verdict (pursuant to a proper instruction) that railroad neg- ligence was a proximate cause of the injury, even though “([t]here was also 19 Just as Gallick reaffirmed the Tennant proximate-cause holding after Rogers, this Court one year after Rogers reaf- firmed and applied the Davis rule that an employer could be liable for a violation of a statutory duty that is “‘the proximate cause of the accident’” in a case under the Jones Act (which incorporates FELA). Kernan v. American Dredging Co., 355 U.S. 426, 434 (1958) (quoting Davis, 263 U.S. at 243). Con- trary to respondent’s claim (Br. 28-29), this is Kernan’s hold- ing, not dicta. The Court held that not only Davis but also five other proximate cause precedents stated the rule under FELA and thus under the Jones Act. Kernan, 355 US. at 432-39 (citing Coray, 335 U.S. 520; Swinson v. Chicago, St. Paul, Minneapolis & Omaha Ry., 294 U.S. 529, 531 (1935) (statute “has been liberally construed so as to give a right of recovery for every injury the proximate cause of which was a failure to comply with a requirement of the act”)); Urie, 337 U.S. at 195 (same); Louisville & Nashville R.R. v. Layton, 243 U.S. 617, 621 (1917) (same); Minneapolis & St. L. R.R. v. Gotschall, 244 U.S. 66 (1917)). In reversing the judgment, this Court held that “the principles governing those cases clearly should apply here.” Kernan, 355 U.S. at 439."° evidence from which the jury could reasonably have concluded that peti- tioner’s own negligence was the sole cause of his injury.” /d. at 210; cf id. at 211 n.* (Douglas, J., dissenting) (quoting proximate cause instruc- tion). /nman v. Baltimore & Ohio R.R., 361 U.S. 138, 140 (1959), is a case about the sufficiency of the evidence of negligence, not causation, and simply states the Rogers rule consistently with the reading above. Respondent quotes two other cases that refer in passing dicta to a relaxed standard of causation under FELA; those statements are true in that Rogers discarded a restrictive common-law concept of sole proximate cause operative in some States, but regardless such dicta could not over- rule repeated holdings of this Court that proximate cause is the FELA .- standard. Petr. Br. 41 n.20. '° Respondent’s claim (Br. 29-31) that this Court should give stare de- cisis effect to the decisions of the courts of appeals that agree with his reading of Rogers is rich with irony, given that he wishes to deny stare decisis to this Court’s many proximate-cause precedents. Regardless, the premise of respondent's argument is false. The lower courts have not “uniformly recognized” (Resp. Br. 29) that Rogers abrogates proximate 20 There is thus no basis for reading Rogers to abrogate this Court’s proximate-cause precedents (which were more con- temporaneous with the enactment of FELA). Even if, con- trary to fact, there were some tension, Rogers does not govern simply if it is later in time than certain contrary precedents; this Court must decide which of its precedents is faithful to the statute. Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994); Monell v. Department of Soc. Ser- vs., 436 U.S. 658, 695 (1978).'' The proper reading of FELA is that a railroad may be held liable for negligence that is a contributory proximate cause of injury, and the same standard applies to contributory negligence in apportioning damages. CONCLUSION The judgment should be reversed and the case remanded for a new trial. cause; on the contrary, there is a deep conflict of authority on precisely that issue. While most courts of appeals have interpreted Rogers in the way Sorrell urges, see Pet. Reply 7 & n.4; Resp. Br. 29-31, at least six State supreme courts and the Third Circuit have held that FELA requires proximate cause, Pet. Reply 7 & n.3; e.g., Chapman v. Union Pac. R.R., 467 N.W.2d 388, 395 (Neb. 1991) (“an employee must prove ... that the alleged negligence is a proximate cause of the employee's injury”); Marazzato v. Burlington N. R.R., 817 P.2d 672, 674 (Mont. 1991) (same); cf. Metro-North Commuter R.R. v. Buckley, 521 U.S. 424, 450 (1997) (Ginsburg, J., concurring in the judgment in part and dissenting in part) (agreeing with Third Circuit description of a FELA claim with “proximate cause” as one of its elements). Thus, there simply was no uniform rule for congressional silence to ratify, especially in light of contrary precedents of this Court that have never been overruled. '' Respondent (Br. 46-47) asks this Court to treat any instructional error as harmless, even though that question is factbound and governed by state law, see Mo. Sup. Ct. R. 84.13, and is at best an issue for remand. Re- gardless, respondent’s theory that causal negligence of the driver is per se a proximate cause of injury is baseless. If, for instance, the jury found that Woodin drove at Sorrell but that Sorrell reacted improperly, the jury could have declined to find that Sorrell’s negligence “directly contributed” to the injury, but may have instead concluded that his negligent positioning of the truck as the other truck approached was the “slightest” [ie., but-for] cause” of the injury under the standard respondent derives from Rogers. LAURA D. HUNT SENIOR GENERAL ATTORNEY LAW DEPARTMENT NS CORPORATION 3 Commercial Place Norfolk, VA 23510 Respectfully submitted, CARTER G. PHILLIPS* STEPHEN B. KINNAIRD ErIc A. SHUMSKY JULIE A. GURLEY RUTHANNE M. DEUTSCH SIDLEY AUSTIN LLP (757) 629-2600 1501 K Street, N.W. Washington, D.C. 20005 JAMES W. ERWIN (202) 736-8000 DAVID DICK THOMPSON COBURN LLP One US Bank Plaza St. Louis, MO 63101 (314) 552-6000 Counsel for Petitioner September 28, 2006 * Counsel of Record ng ise Then vhs ‘ Ate he aes y ve, wi A N nay | é - ae = > Ca : hers A Cae ve — Be - » — sve . ve 2 } Cw orth. Pons ley ary --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0235%3A08. Public record. Not legal advice.