Amicus Curiae Brief — Grand Trunk Western Railroad v. Shepard

O- 3 we’ ‘

FEY ‘. - a. (y)

No. 10-925

IN THE

Supreme Court of the Anited States

xRAND TRUNK WESTERN RAILROAD, INC.,

Petitioner,

Vv.

WILLIAM E. SHEPARD,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeals of Ohio,

Eighth Appellate District

MOTION FOR LEAVE TO FILE

A BRIEF AS AMICUS CURIAE AND

BRIEF OF THE ASSOCIATION OF

AMERICAN RAILROADS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

LOUIS P. WARCHOT

DANIEL SAPHIRE *

ASSOCIATION OF AMERICAN

RAILROADS

425 3rd Street, S.W.

Washington, D.C. 20024

(202) 639-2505

DSaphire@aar.org

February 18, 2011 * Counsel of Record

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

IN THE

Supreme Court of the Anited States

No. 10-925

(GRAND TRUNK WESTERN RAILROAD, INC.,

Petitioner,

WILLIAM E.. SHEPARD.

Respondent

On Petition for a Writ of Certiorari to the

Court of Appeals of Ohio,

Eighth Appellate District

MOTION OF THE ASSOCIATION OF

AMERICAN RAILROADS FOR LEAVE

TO FILE A BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Pursuant to Rule 37.2(b), the Association of Ameri

can Railroads (AAR) respectfully moves for permis-

sion to file the attached brief as amicus curiae.

Petitioner has consented to AAR’s filing of a brief.’

In accordance with Rule 37.2(a), AAR has provided

notice to counsel for Respondent of AAR’s intent to

file a brief. Respondent has not provided consent.

' The letter expressing consent has been filed with the Clerk

of the Court

AAR is an incorporated, nonprofit trade association

representing the nation’s major freight railroads and

Amtrak. AAR’s members operate approximately 78

percent of the rail industry’s line haul mileage,

produce 94 percent of its freight revenues, and

employ 92 percent of rail employees. In matters of

significant interest to its members, AAR frequently

appears before Congress, administrative agencies,

and the courts on behalf of the railroad industry,

including participation as amicus curiae in cases

raising significant legal and policy issues.

This case, arising under the Federal Employers’

Liability Act (FELA), 45 U.S.C. §§51-60, and the

Locomotive Inspection Act (LIA), 49 U.S.C. §§20701-

20703, presents such an issue. FELA, a federal neg

ligence statute, takes the place of workers’ compensa-

tion in the railroad industry. FELA presents unique

issues and problems for railroads because, as a

federal negligence law, it differs fundamentally from

the no-fault compensation systems that cover

virtually all other U.S. industries. Each year, thou-

sands of FELA claims and lawsuits, like the case

below, are asserted against AAR member railroads,

to which they devote substantial legal and financial

resources, expending hundreds of millions of dollars

annually in the payment and defense of claims

brought under FELA. Because FELA litigation is an

ongoing event for all major railroads, AAR has a

strong interest in assuring that lower courts do not

improperly expand railroad liability under FELA

AAR’s members are greatly concerned over the

lower court’s failure to defer to the Federal Railroad

Admunistration’s (FRA) interpretation of an impor-

tant federal railroad safety regulation. The ruling

that the regulation was violated if any diesel exhaust

enters a locomotive cab, which was contrary to the

FRA’s interpretation of a rule that it promulgated

and enforces, amounted to a finding that the defen-

dant was negligent as a matter of law. This ruling

has the potential greatly, and improperly, to expand

FELA liability in a manner inconsistent with the

views of the expert federal agency.

When AAR participates as amicus curiae in a

FELA case, it brings a broad, industry-wide perspec-

tive to the issues before the court. AAR works closely

with its member railroads on a host of issues arising

under FELA. Moreover, AAR has had long-standing

involvement with the subject of rail safety, and parti-

cipates in all significant railroad safety rulemaking

proceedings conducted by the FRA. Thus, AAR is

thoroughly familiar with the trends and key issues

that confront its members both in FELA litigation

and in the field of safety regulation.

In its brief, AAR will show that the lower court’s

failure to defer to the FRA’s interpretation of a

federal railroad safety regulation on diesel exhaust

has the potential to affect the outcome of many future

FELA cases to the detriment of railroad defendants.

Thus, as a trade association representing the nation’s

major railroads, AAR has an interest not only in

assisting the Petitioner in obtaining relief from an

erroneous decision, but also in assuring that an

nportant federal law not n

triment of railroad n the future

UIS P. WARCH

DANIEL SAPHIRI

ASSOCIATION O|

RAILROADS

125 3rd Street, S.W

Washington, D.¢

202) 639-2505

DS iphire@a il

el of |

TABLE OF CONTENTS

Pape

STATEMENT OF INTEREST OF AMICUS

PER oessiectucissicansinensevies

STATEMENT OF THE CASE ..... 2

SUMMARY OF THE ARGUMENT 2

PAREN ME © cxscsrisenssacscanscssisasisseenss

l. THIS COURT SHOULD HOLD THIS

CASE PENDING ITS DECISION IN

CSX TRANSP., INC. v. McBRIDE...

Il. THE LOWER COURT'S FAILURE TO

DEFER TO THE FEDERAL RAIL

ROAD ADMINISTRATION’S INTER

PRETATION OF ITS OWN SAFETY

REGULATION HAS THE POTENTIAL

FOR GREATLY AND IMPROPERLY

EXPANDING FELA LIABILITY

CONCLUSION 1]

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BRIEF OF THE ASSOCIATION ¢

RICAN RAILROADS AS AMICUS (¢

IN SUPPORT OF PETITIONE!

ALTEMENT OF INTERI

OF AMICUS CURIAI

STATEMENT OF THE CASE

AAR adopts the Statement of thi

‘etitioner

SUMMARY OF THE ARGUMENT

This Court should grant the petition because (1) it

presents the same issue about the proper standard

for proving causation under the Federal Employers’

Liability Act (FELA), 45 U.S.C. §§51-60, as CSX

Transp., Inc. v. McBride, 598 F.3d 388 (7th Cir.), cert

granted, 131 S. Ct. 644 (U.S. Nov. 29, 2010) (No. 10

235), and (2) the lower court’s failure to defer to the

Federal Railroad Administration’s (FRA) interpre

tation of its own safety regulation will have profound

implications for the rail industry and its locomotive

fleet

This amicus bnef focuses on that second issue

Contrary to the ruling below that evidence of the

presence of any diesel exhaust in a_ locomotive

cab constitutes a violation of 49 C.F.R. §229.43(a)

requiring a finding of negligence per se under

FELA, the language of the regulation does not compel

such a conclusion. Consistent with the regulation’s

language and intent, FRA’s enforcement efforts

under §229.43(a) have been directed at defects in

locomotive exhaust system and the sufficiency of

stack heights. In addition, FRA has stated that it

utilizes the OSHA diesel exhaust’ thresholds

which are designed to provide a safe workplace fo

employees—to determine compliance with §229.43(a)

This interpretation, which the court rejected, 1:

entitled to deference because it is entirely consistent

with the language of the regulation and plainh

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reasonable under tne Cu stances

3

ARGUMENT

I. THIS COURT SHOULD HOLD THIS

CASE PENDING ITS DECISION IN CSX

TRANSP., INC. v. McBRIDE

AAR agrees with Petitioner that given this Court’s

grant of certiorari in CSX Transp., Inc. v. McBride,

the Court, at minimum, should hold this case pend-

ing a decision in McBride.

ll. THE LOWER COURT'S FAILURE TO

DEFER TO THE FEDERAL RAILROAD

ADMINISTRATION’S INTERPRETATION

OF ITS OWN SAFETY REGULATION

HAS THE POTENTIAL FOR GREATLY

AND IMPROPERLY EXPANDING FELA

LIABILITY

FELA provides the exclusive remedy for railroad

employees who are injured in the course of their

employment. N.Y. Cent. R.R. v. Winfield, 244 US.

147 (1917). Unlike the workers’ compensation systems

that cover virtually all other employees in the United

States, FELA is a fault-based statute, under which

rail employees are entitled to compensation only if

they can prove that employer negligence caused their

injury. 45 U.S.C. §51; Consolidated Rail Corp. v

Gottshall, 512 U.S. 532, 543 (1994) (FELA “does not

make the employer the insurer of the safety of his

employees while they are on duty.”). Moreover,

though FELA abrogated the traditional contributory

negligence doctrine under which any negligence by

the plaintiff barred recovery, if the employee's negli-

gence is the cause, !n part, of the injury damages are

reduced in proportion to the employee's negligence.

45 U.S.C. §53. Thus, it was Congress’ intent that

FELA “makes each party responsible for his own

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[p]roducts of combustion shall be _ released

entirely outside the cab and other compartments

Exhaust stacks shall be of sufficient height or

other means provided to prevent entry of

products of combustion into the cab or other

compartments under usual operating conditions.

Section 229.43(a) contains two operative sentences

The first requires that products of combustion be

released outside the cab: it does not demand that

absolutely no exhaust ever enter the cab once it has

been released outside the locomotive. The second

sentence is directed at the design of exhaust stacks,

requiring that they be high enough to prevent entry

of exhaust into the cab under usual operating

conditions.

In a ruling affirmed by the Ohio Court of Appeals,

the trial court denied Petitioner’s motion for a judg-

ment notwithstanding the verdict (JONV), sustaining

the jury’s finding that §229.43(a), and thus, the

LIA, was violated, despite the lack of evidence that

the exhaust systems of the locomotives operated

by plaintiff were defective, or that plaintiff was

exposed to a dangerous level of diesel exhaust. Pet.

App. at 10a-14a and 32a-33a. In t..e absence of such

evidence, the jury’s finding apparently rested on

plaintiffs testimony that some diesel exhaust entered

the locomotive cab and the plaintiffs expert’s opinion

that this constituted a violation of the FRA regula-

tion. Pet. App. at 12a. Seemingly without considera-

tion of the contrary view held by FRA, the court

+

below concluded that the evidence was sufficient ti

1966, it was transferred to the newly formed Department

Transportation and delegated to FRA. Department of Transp

tation Act, Pub. L. No. 89-670, §6(e), 80 Stat. 931 (1966).

6

support a finding of a violation of the regulation,

without a determination of whether the locomotive

exhaust systems were in compliance with the

regulatory requirement or whether the stacks of the

locomotives plaintiff operated were deficient in that

regard.

Thus, this case raises the issue of the proper inter-

pretation of 49 C.F.R. §229.43(a), and a court’s

obligation to defer to the views of the federal agency

which promulgated the regulation and is charged

with its enforcement. When confronted with the

issue of whether a safety regulation has been

violated, courts must focus on the language, purpose

and intent of the regulation. The Secretary of Trans-

portation has plenary power to promulgate regula-

tions “for every area of railroad safety,” 49 U.S.C.

§20103(a), authority which is exercised by the FRA.

As a general matter, in promulgating rail safety

regulations, it is not FRA’s intent to impose near-

impossible obligations on railroads that serve no

genuine safety-related purpose. See Federal Railroad

Administration, Railroad Occupational Safety and

Health Standards; Termination, Policy Statement, 43

Fed. Reg. 10584, 10586 (1978) (FRA “must decide

what regulations are necessary and feasible.”).

Consistent with that approach, when applying

§229.43(a), FRA has stated that its focus is on defects

(e.g., leaks) in the locomotive exhaust system and

the sufficiency of stack heights. Federal Railroad

Administration, Locomotive Crashworthiness and

Cab Working Conditions, Report to Congress, ch. 7,

p.7-1 (1996) (Crashworthiness Report). FRA further

explained that it “employs the OSHA criteria to

determine compliance with the Locomotive Inspec-

tion Act,” id. at 7-2, indicating that the purpose of

ry

é

§229.43(a) is to protect employees from harmful

levels of diesel exhaust, not to assure they work in a

pristine environment. FRA’s intention expressed in

the Crashworthiness Report is in accord with the

testimony of Petitioner’s expert, the former Director

of FRA’s Office of Safety Assurance and Compliance.

Pet. at 7.°

The lower court’s approach to interpreting the

regulation, without consideration of the evidence of

the regulatory intent, was at odds with the funda-

mental tenets of statutory interpretation, which calls

for construing statutes in a way that is consistent

with their overall purpose and _ structure. See

Heydenfeldt v. Daney Gold and Silver Mining Co., 93

U.S. 634, 638-39 (1876). This Court has repeatedly

explained that “[a]ll laws should receive a sensible

construction. General terms should be so limited in

their application as not to lead to injustice, oppres-

sion, or an absurd consequence. It will always, there-

fore, be presumed that the legislature intended

exceptions to its language, which would avoid results

of this character.” Sorrells v. United States, 287 U.S.

435, 447 (1932) (quoting United States v. Kirby, 7

Wall. 482, 486-87 (1868)); United States v. Ryan, 284

U.S. 167, 175 (1931); United States v. Katz, 271 US.

354, 357 (1926): See also Hawaii v. Mankichi, 190

3 In contrast to the court below, a District Court in Illinois did

consider FRA’s views when interpreting subsection (b) of

§229.43, which prohibits the excessive gassing of batteries. In

reliance on FRA’s views expressed in the Crashworthiness

Report, the court denied the plaintiffs summary judgment

motion because there was a dispute of fact over whether the

OSHA permissible exposure limit was exceeded, noting that

“FRA measures excessive gassing of locomotive batteries using

the permissible exposure limit (‘PEL’) developed by” OSHA.

Taylor v. Union Pac. R.R., 2010 WL 2977142 at *2 (S.D. Ill. 2010).

Pan)

U.S. 197, 214 (1903) (“Nothing is better settled than

that statutes should receive a sensible construction,

such as will effectuate the legislative intention, and,

if possible, so as to avoid an unjust or an absurd

conclusion.” (quoting Lau Ow Bew v. United States,

144 U.S. 47, 59 (1892)).

These same principles apply with even greater

force to the FRA’s interpretations of regulations

that it has promulgated. See Thomas Jefferson Univ.

v. Shalala, 512 U.S. 504, 512 (1994) (“the agency’s

interpretation must be given controlling weight unless

it is plainly erroneous or inconsistent with the

regulation”). Nonetheless, as Petitioner points out,

the court below gave no weight or deference to FRA’s

interpretation of its regulation. See Pet. at 17-18.

That interpretation is entitled to deference because it

is entirely consistent with the language of the regula-

tion and plainly reasonable under the circumstances

While FRA’s stated policy recognizes that it would

be virtually impossible for locomotive cabs to be

perfectly sealed and airtight, its interpretation of the

diesel exhaust regulation is fully consistent with the

LIA’s requirement that locomotives be “in proper

condition and safe to operate without unnecessary

danger of personal injury.” 49 U.S.C. §20701(1).

(emphasis supplied) Yet the lower court refused to

follow the FRA’s less rigid, and more reasonable,

reading of the regulation, even though the FRA is the

agency which promulgated the regulation and which

is charged by Congress with its enforcement.

As this case starkly demonstrates, whether a viola-

tion has occurred can significantly affect the outcome

of a FELA case. The jury found the plaintiff was

more than 80 percent responsible for causing both

sets of the injuries for which he sought and was

s)

awarded compensation. Pet. App. at 15a, n. 3. But for

the finding of an LIA violation, plaintiffs damages

award of $872,756, and Petitioner’s liability, would

have been reduced by plaintiffs percentage of fault,

reducing the judgment by many hundreds of thou

sands of dollars. 45 U.S.C. §53. Thus, if FELA plain

tiffs can convert the presence of any diesel exhaust in

the cab into an LIA violation, they will no longer be

“responsible for [their] own negligence” and “bear the

burden thereof.” H.R Rep. No. 1386, at 1.

Review of the decision below is crucial because the

lower court’s failure to defer to the FRA’s interpreta

tion of its own regulation will have profound implica

tions for the rail industry’s fleet of over 24,000

locomotives.* A conclusion that the presence of any

diesel exhaust in a locomotive cab, without evidence

of defective equipment or levels of exhaust exceeding

OSHA threshold limits, potentially renders every

locomotive used by railroads in violation of federal]

law. In another recent decision by an Ohio appellate

court which reached a similar conclusion regarding

§229.43(a), a plaintiff testified that he was “continu

ously exposed to diesel exhaust” during his entire

career with the railroad, suggesting that virtually

every one of the locomotives he had operated violated

the regulation. Battaglia v. Consolidated Rail Corp.,

2009 WL 3325903 at *1 (Ohio App. 6 Dist. 2009),

petition for cert. filed July 13, 2010 (No. 10-75).

However, FRA, the agency that monitors railroad

compliance with safety regulations, has never found

such mass violations of §229.43(a)

‘ See Association of American Railr«

(2010 ed.)

10

FELA suits which include claims of LIA violations

similar to the claim asserted by Respondent are not

uncommon. Indeed, outcomes like that reached in

this case are likely to be repeated. AAR member

railroads report they currently face numerous FELA

suits in which plaintiffs allege that the presence of

diesel exhaust in the locomotive cabs in which they

rode constituted a violation of the LIA; over 200 such

cases are pending in several northeastern states

alone. Other railroads report additional such cases

are being filed in other jurisdictions with some regu

larity. See e.g., Complaint in Schoenwald v. Union

Pac. R.R., Civ. No. 09098726 (Dist. Ct. for Salt Lake

Cty. filed May 22, 2009) (alleging violation of 49

C.F.R. Part 229.43 “by allowing diesel exhaust fumes

to enter into and remain in locomotive cabs”);

Complaint in Wheeler v. Union Pac. R.R., No. 1022-

CC11405 (Cir. Ct. of City of St. Louis filed Oct. 15,

2010) (alleging, among other things, exposure to

diesel fumes and exhaust in violation of 49 C.F.R.

229.43); see also Payne v. CSX Transp., Inc.,

No. 2-231-07 (Cir. Court for Knox Cty., TN) Motions

Argument, pp. 67-69, 74 (Sept. 30, 2009).°

If this theory of liability is adopted, as it was by the

court below, it would transform FELA by obviating

the need for plaintiffs to prove negligent conduct by

the railroad and render irrelevant any contributory

negligence by the plaintiff. Because the lower court

failed to offer a reasoned analysis of how §229.43(a) is

° In the Payne case, the judge noted that the implication of

the plaintiffs argument was that every locomotive built over the

past 50 years would violate the Locomotive Inspection Act.

Motions at the Close of Proof, p. 33, Nov. 29, 2010. Interestingly,

the plaintiff in Payne cited to this case as precedent for his

position. Jd. at 47.

,

to be interpreted, and given the potential impact that

a violation of this regulation can have on the outcom«:

of a FELA case, this Court should grant the petition

and provide guidance to lower courts on the need to

give proper deference to FRA’s interpretation of

C.F.R. §229.43(a)

CONCLUSION

for the foregoing reasons, tl

certiorari should be granted

OUIS P. WARCH(

DANIEL SAPHIRE *

ASSOCIATION OF AMI

RAILROADS

125 3rd Street, S.W

Washinpgton, D.C. |

202) 639-2505

Saphire@aar