Petition for Writ of Certiorari — Consolidated Rail Corp. v. Battaglia

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Supreme Court, U.S.

FILED

Leta JUL 13 2010

No. 10-OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

CONSOLIDATED RAIL CORPORATION,

Petitioner,

IRANCIS BATTAGLIA,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeals of Ohio, Sixth Appellate

District

PETITION FOR A WRIT OF CERTIORARI

DAVID A. DAMICO JARTER G. PHILLIPS*

BURNS, WHITE & PAUL Jd. ZIDLICKY

HICKTON, LLC CLIFFORD W. BERLOW

Four Northshore Center SIDLEY AUSTIN LLP

106 Isabella Street 1501 K Street, N.W.

Pittsburgh, PA 15212 Washington, D.C. 20005

(412) 995-3000 (202) 736-8000

cphillips@sidley.com

Counsel for Petitioner

(Additional Counsel Listed On Inside Front Cover)

July 13, 2010 * Counsel of Record

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

COLLEEN A. MOUNTCASTLE

GALLAGHER SHARP

Sixth Floor — Burkley Bldg

1501 Euclid Avenue

Cleveland, Ohio 44115

(216) 241-5310

QUESTIONS PRESENTED

1. Whether the Federal Employers’ Liability Act

(“FELA”), 45 U.S.C. § 51 et seq., requires that the

plaintiff prove proximate causation as an element of a

claim for damages.

2. Whether the imposition of hability under

FELA based upon exposure to any diesel exhaust

conflicts with this Court’s decisions requiring courts

to defer to a federal agency’s interpretation of its own

safety regulation

LIST OF PARTIES AND AFFILIATES

The parties to this matter are listed in the caption

to the petition

RULE 29.6 STATEMENT

Petitioner Consolidated Rail Corporation

(“Conrail”) is jointly owned by CSX Corporation and

Norfolk Southern Corporation, both of which are

publicly traded and, indirectly, hold more than 10% of

Conrail's stock. No other publicly held company owns

more than 10% of Conrail’s stock

11]

TABLE OF CONTENTS

QUESTIONS PRESENTED........................ eererrre

LIST OF PARTIES AND AFFILIATES...............

RULE 29.6 STATEMENT ................ iat an Reveascncceas

Ee OE FREE FE BS os vase nscersncisciadversesesces:

PETITION FOR A WRIT OF CERTIORART.......

JUDGMENT FOR WHICH REVIEW IS

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STATUTES OR OTHER PROVISIONS _ IN-

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STATEMENT OF THE CASE.....................:escceee.

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B. Pactual BACKMPOUNG. ...<...560.<cscecccssseccsseeeess

Cl POCO TINO viv os ven cn sesconcevenavevenssnssses

REASONS FOR GRANTING THE PETITION.....

Il. THE DECISION BELOW IMPLICATES A

DEEP CONFLICT OVER THE ISSUE

WHETHER PROXIMATE CAUSATION IS

AN ELEMENT IN A CASE UNDER

Oe eee

A. There Is A Deep Division Of Authority

Over The Standard For Proving Causa-

aes 07 i ee cece eae ce

8B. The Decision Below Conflicts With Bind-

ing Precedents Of This Court...................

ll. THE DECISION BELOW IMPOSING LIA-

BILITY UNDER FELA FOR A VIOLA-

TION OF A SAFETY REGULATION

CONFLICTS WITH THIS COURT'S

STANDARDS GOVERNING THE INTER-

PRETATION OF AN AGENCY’S REGU-

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APPENDICES

APPENDIX A: Battaglia v. Conrail, No. 2009-

Re CPIIND Oe 2s BO esc vonsssceoevcecaceticecesscsonis

APPENDIX B: Battaglia v. Conrail, No. L-08-

1332 (Ohio Ct. App. Oct. 16, 2009) ...................

APPENDIX C: Battaglia v. Conrail, No. CI 08-

5191 (Ct. Com. Pl. Lucas County, Ohio June

REED oa wiccddenedcvugedcrasncescin chun ee ee

APPENDIX D: Battaglia v. Conrail, No. CI 05-

5191 (Ct. Com. Pl. Lucas County, Ohio Apr. 8,

PR i ciscc ce cuiiseces bic iuapreseudortaude cam alee ee aaa

APPENDIX E: Battaglia v. Conrail, No. 2009-

2148 (Ohio Apr. 14, 2010).......... Jishwuccmensseegedics

APPENDIX F: Federal Statutes ................ aes

APPENDIX G: Federal Regulation.....................

APPENDIX H: U.S. Department of Trans-

portation, Report to Congress (September

TABLE OF AUTHORITIES

CASES Page

Am. Dredging Co. v. Miller, 510 U.S. 443

UN tsa a saccay fal dgeraesaeassas ia acese catnaxasauewestics 22

Bowles v. Seminole Rock & Sand Co., 325

oop vais ys sncistodenvevdasscasaverens 4, 28

Brabeck v. Chi. & Nw. Ry., 117 N.W.2d 921

ne ee near a lbacasuis 18

Brady v. S. Ry., 320 U.S. 476 (19483) ........... 24, 25

Canadian Nati/Ill. Cent. RR. v. Hall, 953

ee RU CUO, BI ED ce sccrccnecccsesacsccvncsaces 20

Chapman v. Union Pac. R.R., 467 N.W.2¢

I ON ao vas dvs bunts eusvaauvianesdis 18

Churchwell v. Bluegrass Marine, Inc., 444

F.3d 898 (6th Cir. 2006)...................ccee eee 20

Consol. Rail Corp. v. Gottshali, 512 U.S.

MN oon ia cs co us exucglacaveasnauxaiunadvasvscyes tie eee

Coray v. S. Pac. Co., 335 U.S. 520 (1949)....25, 27

Crane v. Cedar Rapids & Iowa City Ry.,

Oe ae os os cae scanaek evens 26

Davis v. Wolfe, 263 U.S. 239 (19238).............. 25

Dixson v. Burlington N. R. Co., 795 F.

Sum. S39 CE). NOD. TOBZ) .....000<cc0secceseseceees 30

Gardner v. CSX Trasnp., Inc., 498 S.E.2d

Be BE oar v ass asacvasacsoasaccaenanstcocsasss 18

Glass v. Birmingham S. R.R., 905 So.2d

I on. vc ca ubununanneiaosiecausans 20

In re GlobalSantaFe Corp., 275 S.W.3d 477

ce to ae cudevauenaineik 21

Johnson v. Cenac Towing, Inc., 544 F.3d

BE UE SU, IO cei oncvnssccsoencdvannsagsuukaiensns 20

Kayner v. Union Pac. R.R., No. 1003141,

2006 WL 4606753 (Dist. Ct. Douglas

County, Neb. Mar. 2, 2006)....................0... 30

Keranen v. Nat'l R.R. Passenger Corp., 743

Be ee te Cas ID conk cave cna ceccavedacanscstseceess 20

TABLE OF AUTHORITIES — continued

Page

Lang v. N.Y. Cent. R.R., 255 U.S. 455

{> 2b ASRS URIRIR apne srasrebee a egr aOR NETS espn peer Tee 25

Little v. Natl R.R. Passenger, 865 F.2d

Be CEs CR TID vaerisenpsienecasesearsvevesescess 20

Lyng v. Payne, 476 U.S. 926 (1986).............. 28

Marazzato v. Burlington N. R.R., 817 P.2d

re I SD aod se sad tnscaniosccosugiuonsevesraes 18, 21

Maritime Qverseas Corp. v. Ellis, 971

We ee Ue Cs ROD Seirssadicscentscorssssrixesss 20

McBride v. CSX, 598 F.3d 388 (7th Cir.

RS ae RAR ERS eR ON MARRS Ba R nee i ot aes 19

McCalley v. Seaboard Coast Line R.R., 265

ee 8 eC, OTe esc vikeceaieeices 20

Minneapolis, St. Paul & Sault Ste. Marie

Ry. v. Goneau, 269 U.S. 406 (1926)........... 25

Montgomery v. CSX Transp., 656 S.E.2d 20

CO Rese SD cancel Iaidas ocvennnetctivlaaesucsarutacidaes 20, 21

Myocare Nursing Home, Inc. v. Fifth Third

Bank, 787 N.E.2d 1217 (Ohio 2008).......... 23

N.Y. Cent. R.R. v. Ambrose, 280 U.S. 486

I vince o casainsucst A cedéelscacscal-sausteuivuccsemanee 25

Norfolk & W. Ry. v. Earnest, 229 U.S. 114

OE oo vicc cepa cedeusteaiexsacessadseoosxcneeaeoesaenuies 6, 25

Norfolk & W. Ry. v. _ Liepelt,

6a re Ce Ss isikincchcacssnuneaewbeesoners 3

Norfolk S. Ry. Vv. Sorrell,

ED LET, BE CO iis cksctcdoockevesecescdenss passim

Nw. Pac. R.R. v. Bobo, 290 U.S. 499 (1934)...... 25

O’Donnell v. Elgin, Joliet & E. Ry., 338

Pee, eg ergs eakcins tans cecsecouaeeieieeveas 26

Ogelsby v. S. Pac Transp. Co., 6 F.3d 608

NN Ae ON a oo od cacecassieesocuacenns 20, 21

Raab v. Utah Ry., 221 P.3d 219 (Utah

I acdc cuca te Gs cc skis dank ec oa caneamw ines 17,

vii

TABLE OF AUTHORITIES — continued

Page

Reed v. Pa. R.R., 171 N.E.2d 718 (Ohio

ROG ED vciscetivsiscesiesees cece ee ee i8

Rhodes v. Firestone Tire & Rubber Co., No.

O8AP-314, 2008 WL 4368480 (Ohio Ct.

Asm. Beek. Sh, Dee keseoticiccscaeeceeen 24

Rogers v. Mo. Pac. R.R., 352 U.S. 500

CEDINT ) ciivacscencconscnsvensseasaveaieaniaecae 3, 6, 26

Seeberger v. Burlington N. R.R., 982 P.2d

1360 CW OOR.. TOR ivsinscsci ee 20

Snipes v. Chi., Cent. & Pac. R.R., 484

N.W.26 162 (lowe 1008). vcsicccsnncnsesssccsseescos 18

St. Louis, Iron Mountain & S. Ry. v.

McWhirter, 229 U.S. 265 (1913) ................ 6, 25

St. Louis-S.F. Ry. v. Mills, 271 U.S. 344

tS oe S. egetuanie 25

Summers v. Mo. Pac. R.R. Sys., 132 F.3d

500 (10h Vir. 1987) ociaickccscconmiaune 19, 21

Swinson v. Chi., St. Paul, Minneapolis &

Omaha Ry., 294 U.S. 529 (19385) ............... 25

Syverson v. Consol. Rail Corp., 19 F.3d 824

(38 Cat: 198 icaciscncdiccsenmaeee 22

Tennant v. Peoria & Pekin Union Ry., 321

Uy. BO (AOD coil conisiiiccticstenenee 24, 27

Thomas Jefferson Univ. v. Shalala, 512

U6. G04 CO6 «cane 4, 5, 28, 29, 30

Tiller v. Atl. Coast Line R.R., 318 U.S. 54

CRD GBD a icienesiesisicinedscesccessesaineriod cae 25

Urie v. Thompson, 337 U.S. 163 (1949)... 5, 6, 26

Williams v. Long Island R.R., 196 F.3d 402

(3G CAP. - RGGI ss iscesssvcestacsvsat ee 19, 20

Wilmoth v. Chi., Rock Island & Pac. R.R.,

486 S.'W.2d 631 (Mo. 1OTZ) .......ccceascececsessss 20

Vill

TABLE OF AUTHORITIES — continued

STATUTES AND REGULATIONS Page

De l

esas soca aos cessvacseacosenseces 2,9

A SRNR 5

46 U.S.C. § 30104 .ecececceee. OS a. 22

AD U.S.C. § 20701 cecssesccsssesessssesscscecsssessonee. 2,7, 16

49 C.F.R. § 229.438 ............000 SOE STONE ARR iy

45 Fed. Reg. 21,092 (Mar. 31, 1980)............. 7, 29

OTHER AUTHORITIES

2 Kenneth C. Davis, Administrative Law

og EE. Oe 4, 28

Annual Report of the Director: Judicial

Business of the United States Courts,

tbl1.C-2A at 146 (2008), available at

http://www.uscourts.gov/uscourts/Statistics/.J

udicialBusiness/2009/appendices/CO2ASep

PETITION FOR A WRIT OF CERTIORARI

Petitioner Conrail respectfully petitions for a writ

of certiorari to review the judgment of the Court of

Appeals of Ohio.

JUDGMENT FOR WHICH REVIEW IS SOUGHT

The opinions of the Court of Common Pleas of

Lucas County, Ohio granting Respondent’s motions

for partial summary judgment are reproduced in the

appendix to the petition (“Pet. App.”) at 28a-33a, and

34a-38a. The opinion of the Court of Appeals of Ohio,

Sixth Appellate District, affirming the judgment of

the trial court is unreported, and is reproduced at

Pet. App. 2a-27a. The order of the Supreme Court of

Ohio declining to review the decision of the Court of

Appeals is reproduced at Pet. App. la. The order of

the Supreme Court of Ohio denying Conrail’s timely

motion for reconsideration is reproduced at Pet. App.

39a.

JURISDICTION

The final judgment of the Court of Appeals was

entered on October 16, 2009. The Supreme Court of

Ohio, with three justices dissenting, declined to

review the decision of the Court of Appeals on

February 10, 2010. On April 14, 2010, the Ohio

Supreme Court denied Conrail’s timely motion for

reconsideration of its order declining to review the

judgment of the Court of Appeals. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

STATUTES OR OTHER PROVISIONS

INVOLVED

Relevant portions of the Federal Employers’

Liability Act (““FELA”), 45 U.S.C. § 51 et seq., are

reproduced at Pet. App. 40a. Relevant portions of the

y’.

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

are reproduced at Pet. App. 4la. The Railroad

Locomotive Safety Standard appearing at 49 C.F.R.

§ 229.43(a) is reproduced at Pet. App. 42a.

STATEMENT OF THE CASE

In this case, Respondent Francis Battaglia obtained

$2,600,000 in damages under the Locomotive

Inspection Act, 49 U.S.C. § 20701 (“LIA”), and the

Federal Employers’ Liability Act, 45 U.S.C. § 51

(“FELA”) based upon his claim that he suffered from

asthma caused by exposure to diesel exhaust while

employed by Conrail. Pet. App. 2a § 1; id. at 3a 4 4-

5. The trial court granted summary judgment for

Battaglia as to causation, and the court of appeals

affirmed, because both courts concluded that FELA

requires only that the exposure to diesel exhaust

“contributed to any degree, even the slightest, to

Plaintiff's asthma.” Jd. at 32a; see id. at 7a §] 26, lla

4 40. The trial court also granted summary judgment

to Respondent, and the court of appeals affirmed,

based upon the conclusion that exposure to diesel

exhaust at any level violates 49 C.F.R. § 229.43, a

safety regulation under the LIA promulgated by the

Federal Railroad Administration (FRA). The

violation of that safety regulation, in turn, was

deemed to constitute negligence per se under FELA.

This case presents two issues of recurring national

importance.

Wirst, the case presents the issue whether a

plaintiff must prove that an alleged violation of FELA

was a proximate cause of his injuries, or whether, as

the trial court and the court of appeals ruled, plaintiff

must show only that a violation “contributed to any

degree, even the slightest” to plaintiffs alleged

injuries. Courts across the country have reached

conflicting decisions regarding what is required to

establish causation under FELA, and that conflict

has grown more pronounced in the wake of this

Court’s ruling and separate opinions by concurring

Justices in Norfolk Southern Railway v. Sorrell, 549

U.S. 158, 160 (2007).

In Sorrell, the full Court declined to reach the issue

whether proximate causation was an element under

FELLA, but, in a concurring opinion, Justice Souter,

joined by Justices Scalia and Alito, argued that

proximate causation is an element under FELA.

Justice Souter explained that the “even the slightest”

language from Rogers v. Missouri Pacific Railroad,

352 U.S. 500, 506 (1957), did not provide an

alternative causation standard. 549 U.S. at 172-77

(Souter, J., concurring). Justice Ginsburg, in

contrast, expressed her view that Rogers adopted a

“relaxed” causation standard for FELA claims. /d. at

178 (Ginsburg, J., concurring in judgment). These

competing views about the requirements of FELA

mirror a deep divide among federal and state courts

throughout the nation. Jd. at 173 n.* (Souter, J.,

concurring) (identifying conflicting authorities).

As a result of this conflict, plaintiffs and defendants

across the country are subject to different standards

for proving a core element under FELA depending on

geography and, in some states, depending upon which

court (federal or state) the case is filed. This deep

and persistent conflict undermines FELA’s goal of

“creatling] uniformity throughout the Union” in cases

involving injuries to railroad employees. Norfolk &

W. Ry. v. Liepelt, 444 U.S. 490, 493 n.5 (1980). Here,

in seeking summary judgment, respondciit

highlighted that he was not required to prove

“proximate cause,” and the trial court’s grant of

summary judgment was_ predicated upon its

assessment whether the record satisfied the “relaxed”

“even slightest degree” standard first set forth in

Rogers. As a result, this case squarely presents the

issue whether proximate causation is an element

under FELA.

Second, this case presents the question whether the

courts below violated this Court’s precedent when

they refused to consider the views of the Federal

Railroad Administration (FRA) — the agency that

promulgated and enforces the LIA safety regulation

at issue in this case — when assessing whether the

safety regulation’s requirements had been violated.

The FRA has concluded, in a report to Congress, that

it looks to the exposure thresholds adopted by OSHA

“to determine comphance with the Locomotive

Inspection Act.” Pet. App. 46a. That interpretation

is entirely consistent with the language of

§ 229.43(a), and therefore is subject to deference

under this Court’s controlling decisions.

The court below, however, disregarded the FRA’s

interpretation and concluded that a railroad violates

49 C.F.R. § 229.43 whenever diesel exhaust makes its

way into a locomotive cab. Pet. App. 10a-lla § 38.

The refusal of the court of appeals to consider the

FRA’s interpretation of its own safety regulation is

contrary to this Court's holdings that require

“substantial deference to an agency’s interpretation

of its own regulations” so that “the agency’s

interpretation must be given controlling weight

unless it is plainly erroneous or inconsistent with the

regulation.” Thomas Jefferson Univ. v. Shalala, 512

U.S. 504, 512 (1994) (internal quotation marks

omitted); see also Bowles v. Seminole Rock & Sand

Co., 325 U.S. 410, 414 (1945); accord 2 Kenneth C.

Davis, Administrative Law Treatise § 7:22, at 105 (2d

ed. 1979). That deference is all the more appropriate

where, as here, the regulation concerns “a complex

and highly technical regulatory program.” Thomas

Jefferson Univ., 512 U.S. at 512.

The erroneous ruling of the court below is one of

surpassing importance because the standard adopted

imposes an onerous and unwarranted burden on

railroads by subjecting them to liability without any

finding that the levels of diesel exhaust exceed

permissible thresholds identified by OSHA. Because

the decision below is irreconcilable with the

standards established by this Court, certiorari should

be granted.

A. Statutory Background

Kor more than a century, FELA has provided a

remedy under federal law for railroad workers whose

workplace injury or death was caused by the actions

of a railroad. 45 U.S.C. § 51. The interpretation of

FELA is guided by a clear and simple rule: “Absent

express language to the contrary, the elements of a

KFELA claim are determined by reference to the

common law.” Sorrell, 549 U.S. at 165-66; accord

Consol. Rail v. Gottshall, 512 U.S. 532, 544 (1994);

Urie v. Thompson, 337 U.S. 163, 174 (1949). Thus,

the elements of a common-law negligence claim apply

to actions under FELA unless FELA’s text explicitly

rejects or obviously conflicts with the traditional

common-law standard. Sorrell, 549 U.S. at 165-66.!

' For example, FELA expressly departed from the common

law by abolishing the contributory negligence defense and

instead adopting a comparative negligence regime, which was

an innovation when FELA was enacted tn 1908. 45 U.S.C. § 53

(‘the fact that the employee may have been guilty of

contributory negligence shall not bar a recovery, but the

damages shall be diminished by the jury in proportion to the

amount of negligence attributable to such employee.”). FELA

KFELA differs from a_ traditional workers

compensation statute, however, as it does not adopt

no-fault hability in exchange for a cap on recoveries.

Instead, FELA requires proof of railroad neghgence

and allows traditional tort damages. As a result,

FELA plaintiffs must prove “causation, Le., the

relation of the negligence to the injury.” Sorrell, 549

U.S. at 169. As to the element of causation, shortly

after FELA’s enactment, this Court held that a

plaintiff proceeding under FELA must prove that the

injury flows” proximately from the railroad’s

negligence. E.g., Norfolk & W. Ry. v. Earnest, 229

U.S. 114, 118-20 (1913); St. Louis, [ron Mountain &

S. Ry. v. McWhirter, 229 U.S. 265, 280 (1913).

More than 40 years later, in Rogers v. Missouri

Pacific Railroad, this Court stated that in actions

under FELA “the test of a jury case is simply whether

the proofs justify with reason the conclusion that

snployer neghgence played any part, even the

slightest, in producing the injury or death for which

damages are sought.” 352 U.S. at 508 (emphasis

added). In the wake of this statement from Rogers,

lower federal and state courts have apphed differing

standards to the element of causation under FELA.

Sorrell, 549 U.S. at 173 n.* (Souter, J., concurring).

As to the element of neghgence, a FELA plaintiff

may establish negligence by demonstrating that the

railroad violated a safety statute, thereby making the

railroad per se negligent. See Urie, 337 U.S. at 174.

One such safety statute is the LIA (originally the

Boiler Inspection Act), which requires railroads to

keep locomotives “in proper condition and safe to

also “abolished the fellow servant rule... , prohibited employers

from contracting around the Act, and abolished the assumption

of risk defense.” Sorrell, 549 U.S. at 168.

operate without unnecessary danger of personal

injury.” 49 U.S.C. § 20701(1). To implement this

statutory command, the FRA promulgated 49 C.F-.R.

§ 229.43(a), which provides:

Products 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.

Id. FRA explained when it adopted the current

version of § 229.48 that “it 1s impossible to prevent

the entry of some fumes into the cab in certain

unusual wind and weather conditions.” 45 Fed. Reg.

21,092, 21,098 (Mar. 31, 1980). Specifically, in a

Report to Congress, FRA explained that it “employs

the OSHA criteria to determine compliance with the

Locomotive Inspection Act.” Pet. App. 46a; id. at 50a

(“FRA will also continue to apply OSHA criteria as

reference standards to determine compliance with the

Locomotive Inspection Act.”).

In response to a request for clarification of the

requirements of § 229.43(a), FRA explained that it

enforces this regulation “by closely inspecting the

exhaust system of the locomotive” for defects that

result 1n “exhaust gas discharge into the engine

compartment.” Defendants’ Brief in Opposition to

Plaintiffs Motion for Summary Judgment on Count

Two, Ex. C at 1, Battaglia v. Conrail, No. C! 05-5191

(Ct. Com. Pl. Lucas County, Ohio Feb. 8, 2007)

(“Defendants’ Brief in Opposition Count Two"). FRA

likewise explained that the phrase “to prevent entry

of the products of combustion into the cab’ only

relates to the height of the exhaust stacks.” /d.

According to FRA, “fi]f the gases are released from a

stack of suitable height but some small amount of gas

migrates into the cab of the hauling locomotive

because of wind currents the FRA would find this

acceptable.” J/d., Ex. C at 2. Further, if the levels of

exhaust gases 1n the locomotive cab “are less than the

standards set forth in the Occupational Safety and

Health Administration regulations, no action is

required.” Id.

B. Factual Background

Respondent Battaglia worked for Conrail as a

brakeman from 1976 to 1979 and from 1988 to 1993.

Pet. App. 2a 42. Following training in 1993,

Battagha was promoted to locomotive engineer and

remained in that position until November 2007. /d.

Respondent claims that during his time as a

locomotive engineer, diesel exhaust from the

locomotive would enter the locomotive cab in which

he worked and that he developed asthma as a result.

Id. at 2a-3a {9 3-4. Battaglia stated that the level of

exhaust in the cab would decrease if the windows of

the locomotive were closed. Plaintiffs Motion for

Summary Judgment on Count Two, Ex. A at 77,

Battaglia v. Conrail, No. Cl 05-5191 (Ct. Com. PI.

Lucas County, Ohio Jan. 26, 2007) (“Plaintiff's

Motion for Summary Judgment’).

Prior to his work at the railroad, Battagha worked

as an aircraft electrician, during which time he had

significant exposure to asbestos. Defendants’ Brief in

Opposition to Plaintiffs Motion for Summary

Judgment on Count One, Ex. C at 2, Battaglia v.

Conrail, No. CI 05-5191 (Ct. Com. Pl. Lucas County,

Ohio Sept. 10, 2007) (“Defendants’ Brief in

Opposition Count One”). Battagha also smoked a

pack of cigarettes each day for 13 years. Id.

Battagha was diagnosed with adult onset asthma,

although subsequent physicians have diagnosed him

with emphysema rather than asthma. See Brief of

Consol. Rail Corp. at 4, Battaglia v. Consol. Rail

Corp., No. L-08-1332 (Ohio Ct. App. Jan. 2, 2009)

(“Conrail Br.”); Reply Brief of Consol. Rail Corp. at 7,

Battaglia v. Consol. Rail Corp., No. L-08-1332 (Ohio

Ct. App. Mar. 16, 2009) (“Conrail Reply Br.”).

C. Proceedings Below

1. On September 9, 2005, Battaglia filed suit in

the Court of Common Pleas of Lucas County, Ohio,

alleging that exposure to diesel exhaust had caused

his asthma. Pet. App. 3a § 5. He asserted LIA and

FELA claims, alleging both that the railroad violated

the LIA through 49 C.F.R. § 229.43, and that this

violation had a sufficient causal relationship to his

injuries to warrant relief under FELA.

Battaglia moved for summary judgment on his LIA

claim. He first argued that, under § 229.43,

petitioner “had an absolute duty to prevent diesel

fumes from entering the cab while the Plaintiffs

decedent [sic] was working... .” Plaintiffs Motion

for Summary Judgment at 12. According to

Respondent, § 229.43 does not “permit ‘some,’ or

‘limited, or even ‘reasonable’ amounts [of diesel

exhaust] to be emitted within the cab.” Jd. at 11

(emphasis added). Rather, he argued that the LIA

imposes “[s]trict hability ... based merely on the fact

that the exhaust was present in the cab in violation of

feueral regulations under’ regular’ operating

conditions.” Id.?

2 Conrail disputed respondent’s reading of the requirements of

the LILA and highlighted that the FRA has interpreted § 229.43

to permit some levels of diesel exhaust in locomotives so long as

they are below the permissible levels adopted by OSHA. Pet.

App. 30a-31a; id. at 8a.

On the issue of causation, Battaglia relied

exclusively on a report from his expert Dr. Kelly, who

had been retained to offer a medical opinion

“regarding the possible causes of Francis Battaglia’s

asthma.” Plaintiffs Motion for Summary Judgment,

Ex. C § 3. When Dr. Kelly initially examined

Battaglia, he concluded that Battaglia suffered from

asbestosis as well as “noise induced hearing loss”

given his “history of work-related noise exposure.”

See Defendants’ Brief in Opposition Count One, Ex. C

at 4. In support of summary judgment, however, Dr.

Kelly submitted a second report in which he

concluded that Battagha’s exposure to “diesel

exhaust” was “a significant factor in the development

of his asthma.” Plaintiffs Motion for Summary

Judgment, Ex. C 4 7.8

Based on Dr. Kelly's second report, Battaglia

argued that, as a matter of law, “[e]xposure to diesel

exhaust contributed to Mr. Battaglia’s asthma.”

Plaintiffs Motion for Summary Judgment at 12.

Battaglia candidly acknowledged that “it may be very

possible that there were other causes that also

contributed to his asthma,” but they were irrelevant

because “under the FELA, the railroad is lable for

Mr. Battaglia’s damages if the exposure to diesel

exhaust contributed to any degree, even the slightest,

to Mr. Battaghia’s asthma.” Id. (emphasis in

original). Respondent stressed that, under FELA,

3Conrail disputed Battaglia’s showing as to causation

through the reports of its own experts, Dr. David Rosenberg and

Dr. Laura Green, both of which stated that diesel exhaust had

not played any role in Battagha’s alleged injuries. Pet. App.

32a. The trial court, however, refused to credit Conrail’s expert

reports because they were not sworn, and persisted in doing so

even after Conrail submitted affidavits by these experts

adopting their expert opinions. Pet. App. 12a.

“liJn establishing causation, [he] need not prove that

exposure to diesel exhaust was the proximate cause

of Mr. Battaglia’s asthma.” Jd. at 13.4

The trial court granted summary judgment to

respondent on his LIA claim. It rejected Petitioner's

showing regarding the FRA’s interpretation of 49

C.F.R. § 229.43(a) because it found “that the

regulation is clear and unambiguous — products of

combustion shall be released entirely outside the

cab.” Pet. App. 3la. Asa result, it declined to “give

deference to FRA’s interpretation of the regulation”

and concluded that exposure to diesel exhaust, at any

level, while in a locomotive cab violated 49 C.F.R.

§ 229.43. Pet App. 31a.

As to causation, the court also concluded that

Petitioner “is liable if the exposure contributed to any

degree, even the slightest, to Plaintiffs asthma.” Pet.

App. 32a. The trial court held that plaintiff satisfied

that burden by crediting the opinion of Respondent’s

expert that his “exposure to diesel exhaust... was a

significant factor in the development of his asthma.”

Id. ‘The trial court ruled “that Plaintiff's exposure to

the diesel exhaust fumes contributed to his asthma”

and therefore “Plaintiff is entitled to judgment as a

matter of law.” Id. at 33a.

4 Respondent further argued that in Rogers, this Court “held

that to establish liability under the FELA, the relevant inquiry

is ‘whether negligence of the employer played any part, however

small, in the death or inju y which is the subject of the suit.”

Plaintiffs Motion for Summary Judgment at 12 (citing Rogers,

352 U.S. at 508). Respondent included a copy of Rogers as an

exhibit to his motion and argued that Rogers, is “likely the most

referred to and cited case by both Federal and State Courts

respecting the FELA.” 7d. at 12 n.53

After the trial court’s initial summary judgment

ruling, plaintiff moved for summary judgment on the

FELA claim arguing that the grant of summary

judgment based upon the violation of the LIA

resulted in per se liability under FELA. The court

pranted summary judgment on plaintiffs FELA

claim. Pet. App. 37a-38a. The case proceeded to a

damages-only trial, where a jury awarded plaintiff

$2,600,000 in damages.

2. On appeal, Conrail explained that the trial

court erred by adopting both an erroneous causation

standard under FELA and_eé@an_— erroneous

interpretation of the requirements of the LIA.

Conrail argued that the causation standard applied

by the trial court — “contributed to any degree, even

the slightest” — applies only when deciding whether

there is sufficient evidence for a plaintiff “to survive

summary judgment.” Conrail Br. at 15. Conrail

specifically argued that the “any part, even the

slightest” language from Rogers was not the standard

for proving causation because FELA requires a

plaintiff to “prove that ‘negligence was the proximate

cause in whole or part’ of the employee’s injury.”

Conrail Reply Br. at 4-5 (quoting Tennant v. Peoria &

Pekin Union Ry., 321 U.S. 29, 32 (1944)).

Likewise, Conrail argued that the “FRA has

determined that the mere presence of diesel exhaust

in the cab of a locomotive does not constitute a

violation ... of the regulatio[n] set forth in 49 C.F.R.

§ 229.43(a).” Conrail Br. at 7. Conrail explained that

the FRA “utilizes the standards set forth by QSHA to

determine compliance with the LIA.” Z7d. at 10.

The Ohio Court of Appeals affirmed. It held that

the standard for causation under FELA is that “[a]n

injury sustained by a railroad worker that is caused

in any degree, even the smallest, by the negligence of

the employer, results in the obligation of the

employer to pay damages.” Pet. App. lla § 40 (citing

Rogers, 352 U.S. at 508). According to the Court of

Appeals, under Rogers, “when a railroad’s negligence,

in any degree, contributes to an injury at issue in a

FELA claim, lability adheres to the railroad.” Id. at

7a 4 26.

The Court of Appeals also ruled that 49 C.F.R.

§ 229.43 prohibits the presence of any diesel exhaust

in a locomotive cab. Pet. App. 10a-lla § 38. The

court of appeals did not address the FRA’s

interpretation of this Rule. Specifically, it did not

assess whether the exhaust allegedly entered the cab

after being released from the exhaust stack or

whether it entered the cab directly from the

locomotive’s exhaust system. Nor did the court

evaluate whether the diesel exhaust exceeded the

threshold standards set forth by OSHA. Instead, the

court of appeals ruled that “the intent of the rule is to

protect occupants of a locomotive cab from exposure

to toxic exhaust emissions during normal operating

conditions.” /d. The court stated that the rule

“direct[s] that such exhaust be released entirely

outside the cab and that the railroad shall vent the

exhaust through stacks of sufficient height or to

provide ‘other means’ to prevent the exhaust from

entering the cabin in normal operation.” Id.

According to the court of appeals, “if during normal

operation exhaust enters the cab, the rule is

violated.” Id.

3. The Ohio Supreme Court declined to review

the decision of the court of appeals, with three

justices dissenting.

REASONS FOR GRANTING THE PETITION

The petition should be granted to resolve two issues

of nationwide importance. First, the decision below

implicates a deep division of authority among the

lower federal and state courts on the issue whether a

plaintiff must establish proximate causation as an

element of his or her claim under FELA. That

conflict turns on a determination whether this

Court’s decision in Hogers “relaxes” a_ plaintiff's

traditional requirement to prove proximate causation

in an action under FELA. As Justice Souter

explained in Sorrell, confusion surrounding this

Court’s decision in Rogers has led to a deep division

among lower courts over the question whether FELA

requires a showing of traditional proximate cause or,

conversely, whether it requires only a showing of

“shght” cause. See 549 U.S. at 173 n.* (Souter, J.,

concurring) (recognizing division of authority).

The state supreme courts of Iowa, Minnesota,

Montana, Nebraska, Utah, and West Virginia have

all held that a FELA plaintiff must establish that

their injuries were the proximate result of the

defendant’s action. In contrast, the Second, Fifth,

Sixth, Seventh, Ninth, Tenth, and District of

Columbia Circuits have all concluded that Rogers

relaxed the common law requirement, and that FELA

requires plaintiffs to prove only “slight cause.”

Certiorari is necessary to clarify that FELA plaintiffs

must prove that their injuries were the proximate

result of a railroad’s negligent actions.

Resolution of this conflict is critical because of the

dispositive and recurring nature of this issue;

causation will be at issue in nearly every FELA case.

The difference between the two standards for

causation has proven outcome determinative in a

large number of cases. In this case, respondent

highlighted that he was not required to prove

“proximate causation” and relied heavily upon the

“relaxed standard of causation under the FELA” to

support his argument that “exposure to diesel

exhaust contributed to any degree, even the slightest,

to Mr. Battaglia’s asthma.” Plaintiffs Motion for

Summary Judgment at 12. The trial court and court

of appeals agreed that summary judgment on

causation was appropriate because the single expert's

opinion met the relaxed “contributed to any degree,

even the slightest” standard those courts derived

from Rogers. As such, the judgment below

fundamentally depends on whether proximate

causation is an element of a plaintiff's case under

FELA.

Second, this Court’s review is warranted in light of

the lower courts’ refusal to consider the federal

agency's interpretation of the requirements of that

agency’s regulation. Conrail showed that, in

assessing whether a railroad has violated 49 C.F.R.

§ 229.43(a), the FRA “employs [OSHA’s] criteria”

regarding “workplace concentration limits” for the

“common products of diesel fuel combustion” in order

“to determine compliance with the Locomotive

Inspection Act.” The court below ignored the FRA’s

interpretation, and instead concluded de novo that

entry of any diesel exhaust into a locomotive cab

violates the LIA, even if the levels are below the

thresholds adopted by OSHA, and thereby imposes

per se hability on the railroad.

In reaching this conclusion, the courts below

ignored this Court’s cases holding that deference

must be accorded to an expert agency’s interpretation

of its own regulations. Instead, the courts below

adopted an interpretation of an FRA regulation that

imposes liability without any showing that employees

are exposed to conditions that create “unnecessary

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

That ruling places substantial and unwarranted

burdens on railroad carriers that stand in stark

contrast to the FRA’s conclusion regarding the

burdens imposed by this regulation. Review of this

issue is warranted because the ruling below conflicts

with the controlling interpretive rules set forth by

this Court.

In tandem, these two rulings make it virtually

impossible for a railroad to defend itself against a

claim of injury based on diesel exhaust fumes. The

plaintiff need only prove some exposure, which will

be based solely on his or her testimony, and have an

expert say that the exposure contributed at least

“slightly” to the plaintiff's condition. Railroads will

have liability imposed without the benefit of a trial,

and the only issue for the jury will be the size of the

damages. That is not the lability scheme that

Congress created in enacting FELA and this Court

should intervene now to rectify this harmful and

unwarranted situation.

i. THE DECISION BELOW IMPLICATES A

DEEP CONFLICT OVER THE ISSUE

WHETHER PROXIMATE CAUSATION IS

AN ELEMENT IN A CASE UNDER FELA.

Review is warranted because there is a deep and

persistent conflict on the issue whether a plaintiff is

required to establish proximate causation as an

element under FELA. A host of state Supreme

Courts have held that proximate causation is an

element under FELA. In contrast, a number of

federal courts of appeals have held that the relaxed

“slight” cause standard set forth in this Court's

decision in Rogers properly states a_ plaintiffs

obligation as to causation in a FELA case. Review is

especially warranted because a number of courts

have acknowledged the competing concurring

opinions in Sorrell, but those courts deemed

themselves without authority to depart from their

interpretation of Rogers absent an express ruling

from this Court. Resolution of this conflict will have

a broad impact on cases across the country in which

courts and juries must decide whether the evidence is

sufficient to establish causation under FELA.

A. There Is A Deep Division Of Authority

Over The Standard For Proving Causa-

tion Under FELA.

l. As Justice Souter thoroughly documented in

his concurring opinion in Sorrell, there is a very

mature conflict in the federal and state lower courts

over whether plaintiffs under fk HLA must prove that

their injuries were proximately caused, in whole or in

part, by the defendant's negligence.

Most recently, the Utah Supreme Court followed

Justice Souter’s concurrence in holding that plaintiffs

proceeding under FELA must prove that employer

negligence proximately caused the plaintiff's injuries.

Recognizing the “extensive debate” over’ the

importance of the phrase “even the slightest” from

Rogers, the court determined that “[w]hile one could

certainly read the Supreme Court’s language in

Rogers to speak to the standard of causation under

FELA, this is not the best reading of the case.” Raab

v. Utah Ry., 221 P.38d 219, 229 (Utah 2009). The

court concluded that FELA requires a plaintiff to

prove proximate causation based on its finding that

“there is no | | statutory support for reading Rogers as

eliminating the requirement of proximate causation”

and that such a holding “would be contrary to the

Supreme Court's approach to FELA.” /d. at 229-30.

Even before Sorrell, substantial authority

supported the conclusion that Rogers did not “relax”

the common-law standard of causation for actions

under FELA. In Marazzato v. Burlington Northern

Railroad, for example, the Montana Supreme Court

held that a plaintiff proceeding under FELA “has the

burden of proving that defendant’s negligence was

the proximate cause in whole or in part of plaintiffs”

injury. 817 P.2d 672, 675 (Mont. 1991) (internal

quotation marks omitted). Like the Utah Supreme

Court, the court in Marazzato rejected the argument

that Rogers abridged the common-law requirement to

prove proximate causation. Rather, the court

concluded that Rogers dealt with the unrelated issues

of multiple causation and contributory negligence.

The supreme courts of lowa, Minnesota, Nebraska,

and West Virginia have likewise held that FELA

plaintiffs must prove that employer negligence

proximately caused their injuries.

2. In contrast, other courts have relied upon

language in Rogers to hold that FELA abrogates the

common-law requirement of proximate causation in

favor of a “relaxed” standard of causation. These

5 See Gardner v. CSX Transp., Inc., 498 S.E.2d 473, 483 (W.

Va. 1997) (requiring, under FELA, that negligence “contributed

proximately, in whole or in part, to plaintiffs injury”); Snipes v.

Chi., Cent. & Pac. R.R., 484 N.W.2d 162, 164 (lowa 1992)

(requiring, under FELA, that negligence “proximately caused, in

whole or in part, the accident”); Chapman v. Union Pac. R.R.,

467 N.W.2d 388, 395 (Neb. 1991) (ruling that FELA requires

that employer’s negligence “is a proximate cause of the

employee’s injury”); Brabeck v. Chi. & Nw. Ry., 117 N.W.2d 921,

923 (Minn. 1962) (ruling that liability under FELA attaches only

if the conduct is “proximate cause of an accident”); cf. Reed v.

Pa. R.R., 171 N.E.2d 718, 720-21 & nn.2-3 (Ohio 1961)

(“relaxed” standard in Rogers applies only to assess whether

plaintiffs evidence creates a jury question).

courts, including the courts in this case, align

themselves with Justice Ginsburg’s concurrence in

Sorrell, see 549 U.S. at 180, in holding that “[a]n

injury sustained by a railroad worker that is caused

in any degree, even the smallest, by the negligence of

the employer results in the obligation of the employer

to pay damages.” Pet. App. lla § 40 (citing Rogers,

352 U.S. at 508).

Most recently, the Seventh Circuit held that

“common-law proximate causation is [not] required to

establish lability under the FELA.” McBride v. CSX

Transp., Inc., 598 F.3d 388, 406 (7th Cir. 2010). The

court conceded the “considerable force” of Justice

Souter’s concurrence in Sorrell, but declined to

“embrac([e] Justice Souter’s view at this juncture.” Jd.

at 404. That court highlighted that lower courts

“have been admonished not to anticipate future

actions of the Supreme Court” for “it is [the Supreme

Court’s] prerogative alone to overrule one of its

precedents.” Id. at 405 (quoting State Oil Co. v.

Khan, 522 U.S. 3, 20 (1997)). As a result, the

Seventh Circuit joined the federal and _= state

jurisdictions embracing the “relaxed” standard of

causation in FELA actions, largely based on its own

previous interpretations of several of this Court’s

precedents. See id. at 405-06.

Specifically, the Second, Fifth, Sixth, Ninth, Tenth,

and District of Columbia Circuits treat Rogers as

establishing that a FELA plaintiff need only prove

that the railroad’s negligence was the “slightest

cause” of the employee’s injuries. The same is true

6 See Williams v. Long Island R.R., 196 F.3d 402, 406-07 (2d

Cir. 1999) (applying “relaxed standard” of causation to claim

under FELA); Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599,

606-07 (10th Cir. 1997) (ruling that the Supreme Court

of courts in Alabama, the District of Columbia,

Florida, Mississippi, South Carolina, Texas, and

Washington.’

These jurisdictions view Rogers as_ having

established that “proximate cause’ is not required to

establish causation under FELA.” Ogelsby v. S. Pac.

Transp. Co., 6 F.3d 6038, 609 (9th Cir. 1993); see

Montgomery v. CSX Transp., 656 S.E.2d 20, 28 & n.6

(S.C. 2008) (relying on Justice Ginsburg’s Sorrell

analysis in affirming South Carolina’s use of a

“relaxed” causation standard in actions under FELA).

They rely almost entirely on the “even the slightest”

language from Rogers, and to the extent they

reference FELA’s statutory text at all, they cite only

to FELA’s “in whole or in part” language as the basis

for a “relaxed” standard of causation. E.g., Williams

v. Long Island R.R., 196 F.3d 402, 406 (2d Cir. 1999).

As Justice Souter’s Sorrell concurrence makes clear,

this interpretation fundamentally misconstrues both

the statutory text and Rogers itself.

“definitively abandoned” “proximate causation” in FELA cases

in Rogers); Ogelsby v. S. Pac. Transp. Co., 6 F.3d 603, 609 (9th

Cir. 1993) (ruling that “proximate cause’ is not required to

establish causation under the FELA”); Little v. Natl R.R.

Passenger Corp., 865 F.2d 1329 (D.C. Cir. 1988) (per curiam)

(Table); See also Johnson v. Cenac Towing, Inc., 544 F.3d 296,

302 & n.4 (5th Cir. 2008) (applying Rogers causation standard to

claim under the Jones Act); Churchwell v. Bluegrass Marine,

Inc., 444 F.3d 898, 907 (6th Cir. 2006) (same).

7 See Montgomery v. CSX Transp., 656 S.E.2d 20, 26, 28 & n.6

(S.C. 2008); Canadian Nati/Ill. Cent. R.R. v. Hall, 953 So.2d

1084, 1091 (Miss. 2007); Glass v. Birmingham S. R.R., 905 So.2d

789, 796 (Ala. 2004); Keranen v. Natl R.R. Passenger Corp., 743

A.2d 703, 712 (D.C. 2000); Seeberger v. Burlington N. R.R., 982

P.2d 1149, 1152 (Wash. 1999); Maritime Overseas Corp. v. Ellis,

971 S.W.2d 402, 406 (Tex. 1998); McCalley v. Seaboard Coast

Line R.R., 265 So.2d 11, 14-15 (Fla. 1972); Wilmoth v. Chi., Rock

Island & Pac. R.R., 486 S.W.2d 631, 634 (Mo. 1972).

3. The division of authority has deepened in the

wake of this Court’s decision in Sorrell. See, e.g.,

Raab, 221 P.3d at 227 & nn.28-29 (recognizing

division of authority); Montgomery, 656 S.E.2d at 28

& n.6 (same); /n re GlobalSanteFe Corp., 275 S.W.3d

477, 489 n.79 (Tex. 2008) (same). And it has become

so profound that courts within certain states now

apply differing standards to this same. statute,

depending on whether a case is filed in state or

federal court. Compare Raab, 221 P.3d at 229 (Utah

2009), with Summers v. Mo. Pac. R.R. Sys., 132 F.3d

599, 606 (1LOth Cir. 1997); compare Marazzato, 817

P.2d at 675 (Mont. 1991), with Ogelsby, 6 F.3d at 609

(9th Cir. 1993). This is unquestionably the most

intolerable situation because it means that a plaintiff

can prevail in one courthouse and lose in another

that is located literally across the street. It is bad

enough to think that a plaintiffs place of residence

can dictate the outcome of a case, but beyond that,

the street address of the court now controls the

merits of FELA litigation.

The extent of the lower court’s decisional division

underscores its significance. The proper standard of

causation arises in every case brought under FELA.

Hundreds of FELA cases are filed each year in

federal court alone.2 Many other FELA claims are

asserted in state court. In light of the uncertainty

over the proper standard of causation created by

Sorrell, both plaintiffs and defendants legitimately

can seek a favorable’ causation instruction,

incentivizing litigation of this issue in every FELA

8 See Admin. Office of U.S. Courts, Annual Report of the

Director: Judicial Business of the United States Courts, tbl.C-2A

at 144 (2009). available at http://www.uscourts.gov/uscourts/

Statistics/Judicial Business/2009/appendices/CO2ASep09.pdf

(more than 3000 federal FELA cases filed from 2005-2009).

case until a clear precedent is established by this

Court.?

4. This case presents an ideal vehicle to resolve

this deep and abiding conflict.

For example, in Syverson v. Consolidated Rail

Corp., the Second Circuit reversed summary

judgment for the railroad, noting that while it would

have affirmed dismissal “had this been a negligence

action at common law,” reversal was required under

FELA’s “substantially diluted” and “relaxed”

causation standard. 19 F.3d 824, 825-28 (2d Cir.

1994) (explaining that FELA permits lability “for

risks that would be too remote to support lability

under common law”). This case presents the converse

situation. In his motion for summary judgment,

Respondent argued that “[iJn establishing causation,

[Respondent] need not prove that exposure to diesel

exhaust was the proximate cause of [his] asthma.”

Plaintiffs Motion for Summary Judgment at 13.

Indeed, Respondent predicated his summary

judgment argument on the “relaxed standard of

causation under the FELA,” id., and acknowledged

that “it may be very possible that there were other

causes that also contributed to his asthma” but they

were irrelevant because “|u]nder the FELA, the

railroad is liable for Mr. Battaglia’s damages if the

exposure to diesel exhaust contributed to any degree,

even the slightest, to Mr. Battaglia’s asthma.” IZd. at

iz.

9 Moreover, every case brought under the Jones Act, 46 U.S.C.

§ 30104, the federal law governing liability for workplace

injuries to seamen, is subject to the same standards and judicial

interpretations that apply to FELA. See Am. Dredging Co. v.

Miller, 510 U.S. 443, 456 (1994) (noting that the Jones Act

“adopts the entire judicially developed doctrine of liability under

{[FELA]”) (internal quotation marks omitted).

“7 t

The courts below agreed and granted summary

judgment because they concluded that under FELA, a

“railroad is lable if the exposure contributed to any

degree, even the slightest, to Plaintiffs asthma.” Pet.

App. 32a; td. at lla § 40 (“An injury sustained by a

railroad worker that is caused in any degree, even the

smallest, by the negligence of the employer, results in

the obligation of the employer to pay damages’).

Measured against that standard, the courts below

ruled that the affidavit of plaintiffs retained expert —

who stated that Battaglia’s “exposure to diesel

exhaust, as a result of his work on the railroad, was a

significant factor in the development of his asthma,”

Plaintiffs Motion for Summary Judgment, Ex. C 4 7

— was sufficient to satisfy the necessary “nexus” set

forth in cases such as Rogers between Respondent’s

exposure and his alleged asthma. Pet. App. 9a 4] 33.1

Given the concession that there were other potential

causes of plaintiff's condition, this case should have

gone to a jury.

Moreover, under Ohio and federal law, when

reviewing a motion for summary judgment, courts are

required to “view the evidence presented through the

prism of the substantive evidentiary burden.”

Myocare Nursing Home, Inc. v. Fifth Third Bank, 787

N.E.2d 1217, 1222 (Ohio 2003) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)). Here,

there can be no dispute that the courts below denied

Conrail a jury trial on the question of causation based

on their holdings that the “relaxed” standard of

0 The courts below did not consider whether Dr. Kelly's

affidavit could satisfy a heightened “proximate cause” standard.

Indeed, as noted, Respondent underscored in his motion that. he

was not obligated to “prove that exposure to diesel exhaust was

the proximate cause of Mr. Battagha’s asthma.” Plaintiff's

Motion for Summary Judgment at 13.

causation set forth in Rogers governed whether

plaintiff had met his burden of showing that exposure

to diesel exhaust caused Battaglia’s alleged injuries.

As a result, adoption of the traditional common-law

proximate causation standard in this case requires

the Court to vacate the judgment and permit the case

to be tried. E.g.. Sorrell, 549 U.S. at 172 (vacating

judgment of state court and remanding “for further

proceedings not inconsistent with this opinion”).!!

B. The Decision Below Conflicts With Bind-

ing Precedents Of This Court.

Review also should be granted because, contrary to

the decisions below, this Court’s precedent firmly

establishes that a FELA plaintiff must prove

proximate causation. See, e.g., Tennant v. Peoria &

Perkin Union Ry., 321 U.S. 29, 32 (1944)

(interpreting FELA as requiring plaintiffs to prove

that “negligence was the proximate cause in whole or

in part” of the employee’s injury); accord Brady v. S.

Ry., 320 U.S. 476, 483 (1943) (a railroad’s action is

“the proximate cause of an injury” only if it was “the

natural and probable consequence of the negligence”

and “ought to have been foreseen in the light of the

attending circumstances” (internal quotation

omitted)).

This long-recognized rule reflects that it is “clear

common law that a plaintiff had to prove that a

1. For example, under Ohio law, an expert’s statement that an

alleged defect was a “significant facter” in causing a plaintiffs

injury has been held to be inadequate to satisfy the requirement

of proximate causation. See Rhodes v. Firestone Tire & Rubber

Co., No. OSAP-314, 2008 WL. 4368480, at *3:4 (Ohio Ct. App.

Sept. 25, 2008) (holding that an expert report stating that a

defect in a tire was a “significant factor” in a tire failure was

insufficient to establish proximate causation).

defendant’s negligence caused his injury proximately,

not indirectly or remotely,” Sorrell, 549 U.S. at 173

(Souter, J., concurring), and that this common law

standard has not been “expressly rejected in the text

of [FELA],” see Gottshail, 512 U.S. at 544.

Accordingly, this Court has “consistently recognized

and apphed proximate cause as the proper standard

in FELA suits.” Sorrell, 549 U.S. at 174 (Souter, J.,

concurring).

The Court’s decision in Davis v. Wolfe, 263 U.S. 239

(1923), illustrates the fundamental role of proximate

cause under FELA:

[A]Jn employee cannot recover under [FELA] if

the failure to comply with its requirements is not

a proximate cause of the accident which results

in his injury, but merely creates an incidental

condition or situation in which the accident,

otherwise caused, results in such injury; and, on

the other hand, he can recover if the failure to

comply with the requirements of the Act is a

proximate cause of the accident, resulting in

injury to him[.]

Id. at 243. Decisions from this Court preceding,!? and

following Davis,!8 likewise recognize that lability

12 See, e.g., Norfolk & W. Ry., 229 U.S. at 118-120; St. Louis,

Iron Mountain & S. Ry., 229 U.S. at 280; Lang v. N.Y. Cent.

R.R., 255 U.S. 455, 461 (1921).

13 See, e.g., Minneapolis, St. Paul & Sault Ste. Marie Ry. v.

Goneau, 269 U.S. 406, 410-11 (1926); St. Louis-S.F. Ry. v. Mills,

271 U.S. 344, 347 (1926); N.Y. Cent. R.R. v. Ambrose, 280 U.S.

486, 489 (1930); Nw. Pac. R.R. v. Bobo, 290 U.S. 499, 503 (1934);

Swinson v. Chi., St. Paul, Minneapolis & Omaha Ry., 294 U.S.

529, 531 (1935); Tiller v. Atl. Coast Line R.R., 318 U.S. 54, 67

(1943); Brady, 320 U.S. at 483; Coray v. S. Pac. Co., 335 U.S

under FELA is limited to injuries that a defendant’s

negligence proximately causes. These cases remain

binding precedent.

Some courts, however, have misread Rogers to have

overturned sub silentio nearly a half century of this

Court’s FELA precedents. But Rogers is entirely

consistent with the long line of this Court’s decisions

requiring FELA plaintiffs to prove proximate

causation. Rogers addressed the distinct issue of

whether a FELA plaintiff has the burden to prove

that a wrongful act was the “sole, efficient, producing

cause of injury,” a more demanding requirement than

the proximate causation standard. 352 U.S. at 506.

The statement in Rogers that FELA affixes lability

on a railroad when its negligence “played any part,

even the slightest” in the employee’s injury spoke

only to “the occasional multiplicity of causations.”

Sorrell, 549 U.S. at 175 (Souter, J., concurring)

(quoting Rogers, 352 U.S. at 506). Rogers did not

alter “the necessary directness of cognizable

causation.” /d.14

520, 523 (1949); Urie, 337 U.S. at 177; O'Donnell v. Elgin, Joliet

& E. Ry., 338 U.S. 384, 390 (1949).

\4 Following Rogers, this Court has stated in dicta that FELA

adopts a “relaxed standard of causation”, Gottshall, 512 U.S. at

543, and that a FELA plaintiff “is not required to prove

common-law proximate causation,” Crane v. Cedar Rapids &

Iowa City Ry., 395 U.S. 164, 166 (1969). These statements are

correct, to the extent they merely acknowledge that FELA does

not adopt the older common law conception of “sole proximate

cause,” which this Court addressed in Rogers. See Sorrell, 549

U.S. at 175 (Souter, J., concurring). But any suggestion that

Rogers “relaxes” the federal rule of proximate causation is

contrary to FELA’s text and cannot be reconciled with the

extensive line of this Court’s precedents applying that standard

under FELA.

Moreover, Rogers dealt with FELA’s “in whole or in

part” statutory language, which plainly does not

alleviate a plaintiffs burden to prove proximate

causation. This provision establishes only that a

FELA injury can have more than one proximate

cause, thereby abolishing the common law regime of

pure contributory negligence. Accordingly, Rogers

only held that a standard of “sole proximate cause”

could not be reconciled with a statute adopting a

standard of comparative negligence. See Sorrell, 549

U.S. at 175 (Souter, J., concurring).

The narrow ruling in Rogers simply did not reverse

decades of decisions concluding that liability under

FELA only exists where railroad “negligence was the

proximate cause in whole or in part” of the employee’s

injury. Tennant, 321 U.S. at 32 (emphasis added).

This is made all the more clear by the fact that

Rogers derived its “test of a jury case” from Coray v.

Southern Pacific Co., which explicitly states that

FELA requires plaintiffs to prove either that railroad

negligence was “the sole or a contributory proximate

cause” of the employee’s injury. 335 U.S. 520, 523

(1949) (citing Davis, 263 U.S. at 243; Spokane &

Inland Empire R.R. v. Campbell, 241 U.S. 497, 509-

10 (1916)(emphasis added)). There is simply no basis

for interpreting Rogers, or, for that matter, any other

precedent of this Court, as unsettling the long-

established proximate cause standard under FELA.

Rogers merely made clear that in cases where a jury

could find that both the employee’s and the railroad’s

negligence could be legal causes of the injury, the

claim against the railroad had to go to a jury even if

the railroad’s contribution to the injury were slight

relative to the employee’s.

At a minimum the conflicts and confusion created

by Rogers unquestionably warrant this Court’s

review, and this case, which did not even get to the

jury on the issue of causation, provides an ideal

vehicle for deciding the issue presented.

Il. THE DECISION BELOW IMPOSING

LIABILITY UNDER FELA FOR A

VIOLATION OF A SAFETY REGULATION

CONFLICTS WITH THIS COURT’S STAN-

DARDS GOVERNING THE INTERPRETA-

TION OF AN AGENCY’S REGULATIONS.

Review should be granted because the decision

below conflicts with this Court’s decisions holding

that courts “must give substantial deference to an

agency's interpretation of its own regulations.”

Thomas Jefferson Univ., 512 U.S. at 512. As this

Court has explained, in construing the requirements

of a federal rule, “the agency’s interpretation must be

given controlling weight unless it is plainly erroneous

or inconsistent with the regulation.” Jd. (internal

quotation marks omitted); accord Lyng v. Payne, 476

U.S. 926, 939 (1986); accord Bowles, 325 U.S. at 414;

Davis, supra, at § 7.22, 105.

The decision below violates these standards

because the court of appeals never assessed whether

the FRA’s interpretation of § 229.43(a) was “plainly

erroneous” or “inconsistent with the regulation.”

Instead, the court of appeals substituted its own

independent judgment regarding the meaning of

§ 229.43(a) for that of the expert agency and then,

based on that erroneous interpretation, imposed

hability on the railroad. The court of appeals did not

assess whether the exhaust allegedly entered the cab

after being released from the exhaust stack or

whether it entered the cab directly as a result of a

defect in the locomotive’s exhaust system. Likewise,

the court did not evaluate whether the diesel exhaust

exceeded the threshold standards set forth by OSHA.

Instead, according to the Ohio Court of Appeals, “it is

clear that the intent of the rule is to protect

occupants of the cab of a locomotive from exposure to

toxic exhaust emissions during normal operating

conditions.” Pet. App. 10a-lla § 38 (emphasis

added). As a result, the court saw “no ambiguity” and

ruled that, regardless of the point of entry, “if during

normal operation exhaust enters the cab, the rule is

violated.” Id.

In marked contrast, the FRA has interpreted

§ 229.43(a) in these circumstances to require

compliance with the “limits for the concentration” set

forth by OSHA for the “common products of diesel

fuel combustion.” Pet. App. 45a-46a; id. at 50a (“FRA

also will continue to apply OSHA criteria as reference

standards to determine compliance with the [LIA]”).

By tying compliance to the levels of exposure

identified as acceptable by OSHA, the FRA’s

interpretation of § 229.43 properly takes into account

concerns regarding exposure to levels of diesel

exhaust deemed “toxic” by OSHA while recognizing

that “it is impossible to prevent the entry of some

fumes into the cab in certain unusual wind and

weather conditions.” 45 Fed. Reg. at 21,098. FRA’s

interpretation is thus faithful to the language of

§ 229.43(a), addresses the core concern of exposure to

“toxic” levels of diesel exhaust and is therefore

reasonable under the circumstances. The FRA’s

interpretation of Section 229.43(a) thus should have

been accorded “controlling weight.” Thomas Jefferson

Univ., 512 U.S. at 512.

In contrast, the court of appeals’ decision effectively

requires railroads to insure that locomotive cabs are

airtight or risk liability whenever diesel exhaust at

any level is able to make its way inside the

locomotive cab.'5 Indeed, the court of appeals

embraced Battaglia’s position that § 229.43 “doesn’t

permit ‘some,’ or ‘limited,’ or even ‘reasonable’

amounts to be emitted within the cab.” Plaintiff's

Motion for Summary Judgment at 11. As a result,

the court of appeals adopted a per se standard under

which Petitioner is liable “based merely on the fact

that the exhaust was present in the cab in violation of

federal regulations under’ regular’ operating

conditions.” Id,'6

This is a virtually impossible standard for railroads

to defend, and effectively renders every locomotive in

possible violation of a federal safety regulation. The

decision below requires railroads to insure that

locomotive cabs are airtight or risk liability whenever

diesel exhaust at any level is able to make its way

inside the locomotive cab. Cf. Dixson v. Burlington N.

R.R., 795 F. Supp. 939, 940 (D. Neb. 1992) (holding

that § 229.43 is ambiguous as to whether it applies

only to the lead locomotive). Even if the court of

appeals’ reading were a permissible one, the decision

below ignores that the FRA is responsible for

deciding “which among _ several competing

interpretations best serves the regulatory purpose.”

Thomas Jefferson Univ., 512 U.S. at 512.

1s Kayner v. Union Pac. R.R., No. 1003141, 2006 WL 4606753

(Dist. Ct. Douglas County, Neb. Mar. 2, 2006) (noting that “the

LIA regulation, 49 C.F.R. 229.43, does not provide that the cab

must be entirely free of all diesel exhaust, .. . only that the

locomotive exhaust stacks be of sufficient height to allow the

diesel exhaust to be released entirely outside the cab and to

prevent reentry of the exhaust under usual operating

conditions”).

‘6 Plaintiff put forth no quantitative evidence regarding the

level of his exposure to diesel exhaust, and never argued that it

exceeded the thresholds adopted by OSHA.

Review should be granted because the court of

appeals’ refusal to defer to the FRA’s interpretation

of § 229.43(a) conflicts with this Court’s long-standing

precedent governing the interpretation of federal

regulations. Moreover, the draconian interpretation

of the regulation coupled with the rejection of a

requirement of proximate causation eviscerates the

requirement that employees are only entitled to

damages for injuries that are the product of a

railroad’s negligence. The regime in Ohio makes the

railroad the guarantor of its employees’ health, even

when there clearly are multiple petential covees of

injury. This is not the lability scheme that ( vipress

implemented in the FELA and only review by this

Court can put FELA back on the right course

CONCLUSION

For these reasons, the petition

certiorari should be granted.

Respectfully submitt

DAVID A. DAMICO CARTER G. PHILLIPS”

BURNS, WHITE & (COUNSEL OF RECORD)

HICKTON, LLC PAUL J. ZIDLICKY

Four Northshore Cente) CLIFFORD W. BERLOW

106 Isabella Street SIDLEY AUSTIN LLP

Pittsburgh, PA 15212 1501 K Street, N.W.

(412) 995-3000 Washington, D.C. 2000

(202) 736-8000

cphillips@sidley.co

COLLEEN A. MOUNT‘

GALLAGHER SHARP

Sixth Floor — Burkley Bld;

1501 Euclid Avenue

Cleveland, Ohio 4411!

(216) 241-5310

APPENDIA

| i,’

APPENDIX A

SUPREME COURT OF OHI

()

he 1umsdictional memoranda

yurt declines jurisdiction ti

THOMAS J. MOYER

Chief Justice

‘).

tnd &

APPENDIX B

Court of Appeals of Ohio,

Sixth District, Lucas County.

No. L-08-13382.

FRANCIS BATTAGLIA,

Appellee,

)

CONRAIL, et ai

Appellant.

Decided Oct. 16, 2009.

SINGER, J.

{f 1} A railroad appeals a $2.6 million workplace

injury award issued in the Lucas County Court of

Common Pleas to a former railroad employee. For the

reasons that follow, we affirm.

{J 2} Appellee, Francis Battaglia, began work for

appellant, Consolidated Rail Corp. (“Conrail”) in 1976

as a brakeman. In 1979, appellant furloughed him.

He did not work for any railroad again until i988,

when he was called back. Between 1988 and 1993, he

was a brakeman and a conductor. Following training,

in 1993, appellee became a locomotive engineer, a

position he held until 2007, when he received medical

leave.

{3} According to appellee, during his tenure with

the railroad, he was continuously exposed to diesel

exhaust which would infiltrate into the locomotive

cab through holes in the floor, cracks in improperly

sealed windows and doors and through the equip-

ment compartment. In his deposition testimony,

appellee reported that he frequently complained

about this condition, but repairs were ineffective.

{1 4} At some point, appellee began to experience

respiratory distress. On consultation, a pulmonologist

diagnosed appellee with asthma. According to appellee,

the physician advised him to retire from the railroad

to escape further exposure to diesel exhaust.

{| 5} On September 9, 2005, appellee instituted the

suit that underlines this appeal. In his complaint,

appellee alleged that appellant negligently caused the

conditions that caused his asthma, a claim under

the Federal Employees Liability Act (“FELA”); and,

in doing so, violated the terms of the Locomotive

Inspection Act (“LIA”), 49 U.S.C. 20701, and regula-

tory railroad safety standards as articulated in

Section 229 et seq., Title 49 C.F.R. Appellant res-

ponded, denying liability.

{1 6} Following some discovery, appellee moved for

partial summary judgment. Appellant filed a memo-

randum in opposition. On June 15, 2007, the court

granted appellee’s motion, concluding that appellee's

assertion of prolonged exposure to diesel exhaust

fumes in the cab of his locomotive was unrefuted, as

was his physician’s affidavit that such exposure was

a cause of his asthma. Moreover, the court concluded,

the existence of diesel exhaust was a violation of the

unambiguous requirements of Section 229.43(a), Title

49 C.F.R., constituting per se negligence under the

LIA. Since any degree of negligence is sufficient

under FELA to establish causation for an injury, the

court granted appellee’s motion for partial summary

judgment. The court denied appellant’s motion for

reconsideration.

{J 7} On August 21, 2007, appellee moved for partial

summary judgment on its FELA claim on the ground

that the judgment of a violation of the LIA, already

entered, constituted a per se violation of FELA. On

April 8, 2008, the court granted appellee’s motion and

the matter went forward for a jury trial on damages

only. At the conclusion of the trial, the jury awarded

appellee $2.6 million. The trial court entered judgment

on the verdict and denied appellant’s motions for a

J.N.O.V., new trial and remittitur. This appeal followed.

{{ 8} Appellant sets forth the following nine

assignments of error:

{J 9} “I. The trial court erred in granting summary

judgment in favor of Battaglia on his LIA claim

{f 10} “Il. The tral court erred in_ granting

summary judgment on the issue of liability under the

FELA and limiting the trial to damages only

{J 11) “III. The trial court erred in denying

Conrail’s motion or a continuance of trial due to

discovery abuses

{J 12} “IV.The trial court erred in denying

Conrail’s motion to prelude [sic] the testimony of Dr.

DeLara and Dr. Kelly

{J 13} °V. The trial court erroneously permitting

[sic] exposure testimony 1n a damages only trial

{J 14} “VI. The trial court improperly instructed

the jury regarding workers’ compensation,

emphysema, assumption of the risk and _ other

liability points of law

{J 15} “VII. The tral court erred in denying

Conrail’s motion for directed verdict and judgment

notwithstanding the verdict because of Battaglia’s

failure to present evidence relating to lost wages with

reasonable certainty

{{ 16} “VILL. The jury’s verdict should be reversed

because it did not calculate net present value, and

did not deduct local, state and federal taxes, personal

consumption or other required deductions

(fq 17} “IX. The award of $2,600,000 is against the

manifest weight of the evidence, the result of

speculation and undue passion and prejudice”

1. Summary Judgment

{| 18} In its first two assignments of error, appel-

lant insists that the trial court’s decision to grant

partial summary judgment on both the LIA and

FELA claims was erroneous.

{{ 19} An appellate court examines an award of

summary judgment de novo, employing the same

standard as a trial court. Lorain Natl. Bank v.

Saratoga Apts. (1989), 61 Ohio App.3d 127, 129. The

motion may be granted only when it is demonstrated:

{{ 20} “ * * * (1) that there is no genuine issue as

to any material fact; (2) that the moving party is

entitled to judgment as a matter of law; and (3) that

reasonable minds can come to but one conclusion,

and that conclusion is adverse to the party against

whom the motion for summary judgment is made,

who is entitled to have the evidence construed most

strongly in his favor.” Harless v. Willis Day Ware-

housing Co. (1978), 54 Ohio St.2d 64, 67; Civ.R. 56(C).

(| 21} When seeking summary judgment, a party

must specificaily delineate the basis upon which the

motion is brought, Mitseff v. Wheeler (1988), 38 Ohio

St.3d 112, syllabus, and identify those portions of the

record that demonstrate the absence of a genuine

issue of material fact. Dresher v. Burt (1996), 75 Ohio

St.3d 280, 293. When a properly supported motion for

summary judgment is made, an adverse party may

not rest on mere allegations or denials in the pleadings,

but must respond with specific facts as would be

admissible in evidence showing that there is a

genuine issue of material fact. Civ.R. 56(E); Green v.

B.F. Goodrich Co. (1993), 85 Ohio App.3d 223, 228;

Riley v. Montgomery (1984), 11 Ohio St.3d 75, 79. A

“material” fact is one which would affect the outcome

of the suit under the applicable substantive law.

Russell v. Interim Personnel, Inc. (1999), 135 Ohio

App.3d 301, 304; Needham v. Provident Bank (1996),

110 Ohio App.3d 817, 826, citing Anderson v. Liberty

Lobby, Inc. (1986), 477 U.S. 242, 248.

(q 22} Appellee submitted his initial motion for

summary judgment accompanied by his affidavit and

that of a co-worker averring that the cabs in the

locomotives in which they worked were regularly,

over a prolonged period, infiltrated with diesel exhaust.

Also with the motion was the affidavit of physician

R. Michael Kelly who stated that he had, “ * * *

concluded to a reasonable degree of medical certainty

that Mr. Battaglia’s ongoing and regular exposure to

diesel exhaust, as a result of his work on the railroad,

was a significant factor in the development of his

asthma|[.]”

{{ 23} Appellee, citing Lilly v. Grand Trunk Western

R.R. Co. (1943), 317 U.S. 481, 485, insisted that the

Locomotive Inspection Act, originally known as the

Boiler Inspection Act, imposes on a railroad an abso-

lute duty to operate locomotives safely. Statutorily,

this includes an obligation to operate a locomotive,

“ * * * only when the locomotive or tender and its

parts and appurtenances—({1) are in proper condition

and safe to operate without unnecessary danger of

personal injury[.]” Section 20701(1), Title 49, U.S.Code.

(| 24} Moreover, appellee asserted, diesel exhaust

infiltration into a locomotive cab is also an express

violation of a federal safety regulation which provides:

(| 25} “(a) Products 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), Title

49 C.F .R.

{| 26} Appellee insisted that the unrefuted presence

of diesel exhaust in the locomotive cabs in which he

worked constituted a breach of an absolute duty

imposed by law. Pursuant to Rogers v. Missouri

Pacific R. Co. (1957), 352 U.S. 500, 508, when a rail-

road’s negligence, in any degree, contributes to an

injury at issue in a FELA claim, liability adheres

to the railroad. As a result, appellee maintained,

appellant is liable for his asthma and he was entitled

to summary judgment on his LIA claim.

{{ 27} Appellant responded, asserting that there

were questions of fact in three areas which would

preclude summary judgment: (1) whether appellee was

“exposed” to diesel exhaust, (2) whether the exhaust

in the locomotive cab in which appellee worked

constituted a violation of the Locomotive Inspection

Act, and (3) whether appellee’s asthma was caused by

his exposure diesel exhaust.

{{ 28} Appellant maintained that Section 229.43(a),

Title 49 C.F.R. is ambiguous and should be inter-

preted in a manner consistent with that adopted by

the administrative agency tasked with enforcing the

rule, the Federal Railroad Administration (“FRA”).

According to an affidavit and documents from a

former FRA administrator, the agency recognized

that it would not be possible to eliminate all diesel

fumes from the locomotive cab in some conditions.

{ 29} Rather than develop its own rules for limits

on the concentration of fumes or regulations for air

exchange rates for locomotive cabs, the agency chose

to use standards promulgated by the Occupational

Safety and Health Administration (“OSHA”). Since

appellee failed to show that the conditions in the

locomotives in which he worked exceeded the

permissible exposure levels or time weight averages

established by OSHA, appellant argued, appellee

neither established that he was “exposed” to diesel

fumes, nor that there was a violation of the regulation.

Therefore, appellant failed to show a violation of the

LIA.

{J 30} Concerning causation, appellant attached a

document from an environmental expert who opined

that appellee’s exposure to exhaust was not likely

excessive and was not at levels known to cause

asthma. The asthma was likely triggered by other

things, including a smoking habit that had ended 31

years earlier. Appellant also submitted a letter from

a physician who opined that causation for appellee’s

asthma was “multifactoral,” but not related to the

railroad.

{J 31} In appellee’s response, he reiterated his ar-

guments concerning the violation of the regulation

and pointed out that the reports on which appellant

relied to contradict appellee’s physician on the issue

of causation were unauthenticated by affidavit or

otherwise. Appellant, even though it filed a sur-reply

and an amended sur-reply, failed to remedy the lack

of authentication for its expert reports.

{1 32} In its decision on appellee’s motion for partial

summary judgment on his LIA claim, the court con-

cluded that Section 229.43(a), Title 49 C.F.R. is “ * * *

clear and unambiguous—products of combustion

shall be released entirely outside the cab.” Since the

unrefuted affidavits of appellee and his co-worker

sufficiently established that diesel exhaust was re-

leased into the cab, the court found that appellant

had violated the safety regulation.

{| 33} Relying on Aparicio v. Norfolk & Western Ry.

Co. (C.A.6 1996), 84 F.3d 803, for the proposition that

the railroad is liable if the exhaust exposure contri-

buted to any degree, “even the slightest” to appellee’s

asthma, the court found that such a nexus had been

established by Dr. Kelly’s affidavit. The court stated

that it could not and did not consider the contradic-

tory reports submitted by appellant, because these

reports were unauthenticated by affidavit and were,

thus, not in conformity with Civ.R. 56(E). On these

conclusions, the court granted appellee’s motion for

partial summary judgment on the LIA violation claim.

Appellant’s motion for reconsideration and request to

resubmit newly authenticated reports were rejected.

{{ 34) Appellee subsequently moved for partial

summary judgment on its FELA claim on the ground

that the LIA violation triggered per se liability under

FELA. This motion too was granted.

{{ 35} Appellant claims that the trial court was

wrong when it refused to consider the administrative

interpretation of Section 229.43(a), Title 49 C.F.R and

in rejecting consideration of their unauthenticated

expert opinions on the question of causation. It also

10a

suggests that the trial court should have accepted

their resubmission with accompanying affidavits pre-

sented after summary judgment was granted.

{9 36) It has long been held that where a statute is

unambiguous, “* * * there is no occasion for resorting

to the rules of statutory interpretation. To interpret

what is already plain is not interpretation, but

legislation * * *. An unambiguous statute is to be

applied, not interpreted.” Sears v. Weimer (1943), 143

Ohio St. 312, 316; Provident Bank v. Wood (1973), 36

Ohio St.2d 101, 105-106; Barth v. Barth, 113 Ohio

St.3d 27, 2007-Ohio-973, 7 10, fn 1. The same applies

to administrative rules properly promulgated under

statutory authority. State v. Reedy, 10th Dist. No.

O5AP-501, 2006-Ohio-1212, 7 10.

{{ 37) Appellant has directed us to no authority

that found Section 229.43(a), Title 49 C.F.R. ambiguous

as it relates to a lead locomotive cab. It points to

Dixson v. Burlington Northern R. Co. (D. Nebraska

1992), 795 F.Supp. 939, but there the district court

concluded that it was not clear if the rule applies

to trailing locomotives. Appellee points to Norfolk

Southern R. Co. v. Baker (1999), 237 Ga.App. 292,

which holds that the provision is unambiguous, but

appears to do so on the basis of an evidentiary defi-

ciency. Neither of these cases is particularly useful to

our analysis.

{{ 38} The plain language of the rule is more per-

suasive. Although appellant argues that the thrust of

the rule is about stack heights, it is clear that the

intent of the rule is to protect occupants of a locomo-

tive cab from exposure to toxic exhaust emissions

during normal operating conditions. It is directed

that such exhaust be released entirely outside the cab

and that the railroad shall vent the exhaust through

lla

stacks of sufficient height or provide “other means” to

prevent the exhaust from entering the cabin in nor-

mal operation. We see no ambiguity here. Clearly, if

during normal operation exhaust enters the cab, the

rule is violated.

{{_ 39) Appellant has never suggested that the con-

ditions experienced by appellee were in any way the

result of unusual operating conditions, nor has it

presented evidence contradicting appellee’s assertion

of exposure. Consequently, appellee’s exposure to such

exhaust is a violation of a safety regulation.

{1 40} An injury sustained by a railroad worker

that is caused in any degree, even the smallest, by

the negligence of the employer, results in the obligation

of the employer to pay damages. Rogers v. Missouri

Pac. R. Co. (1957) 352 U.S. 500, 508; Aparicio ov.

Norfolk & Western Ry. Co. supra, at 808. A violation

of a safety regulation constitutes negligence per se.

Walden v. Illinois Cent. Gulf R.R. (C.A. 7 1992), 975

F.2d 361, 364, citing Kernan v. American Dredging

Co. (1958), 355 U.S. 426, 432-433. Consequently,

appellant’s violation of a safety regulation establishes

its negligence.

{f 41} Concerning causation, appellant insists that

there is a question of material fact, pointing to the

unsworn contradictory opinions of its medical experts.

Had the court not erroneously excluded consideration

of these documents, appellant maintains, there would

have been a triable issue.

(| 42} “Documents submitted in opposition to a

motion for summary judgment which are not sworn,

certified, or authenticated by affidavit have no evi-

dentiary value and may not be considered by the

court in deciding whether a genuine issue of material

l2a

fact remains for trial.” Green v. B.F. Goodrich Co

(1933), 85 Ohio App.3d 223, 228; Citizens Ins. Co. v

Burkes (1978), 56 Ohio App.2d 88, 95-96.

{f, 43) Accordingly, the tral court properly excluded

appellant’s documents from consideration when the

motion for summary judgment became decisional.

Moreover, since appellant was given notice of the

insufficiency of its proofs prior to its last response to

the summary judgment motion and failed to remedy

the deficiency, the trial court acted well within its

discretion in denying it yet another bite of that apple.

As a result, the court properly granted summary

judgment to appellee on its LIA claim. Accordingly,

appellant’s first assignment of error is not well-taken.

{| 44} Since liability under the LIA and FELA is

coextensive, violation of the former constitutes a claim

under the latter. Urie v. Thompson (1949), 337 U.S.

164, 194; Lilly v. Grand Trunk Western R. Co. (1943),

317 U.S. 481, 485. Accordingly, appellant’s second

assignment of error is not well-taken.

Il. Motion to Continue Trial

{{ 45) Trial on the issue of damages only was sche

duled to begin on April 21, 2008. On April 14, 2008,

appellant filed a motion to continue the trial asserting

a lengthy enumeration of purported discovery

violations. The motion was apparently argued in an

off the record telephone conference prior to trial. The

trial court tacitly denied the motion by directing that

the trial continue as scheduled. In its third assign-

ment of error, appellant insists that the court’s denial

of a continuance was erroneous.

{| 46} The decision whether to grant a continuance

is within the sound discretion of the trial court, and

will not be grounds for reversal absent an abuse

l3a

of that discretion. Hartt v. Munobe (1993), 67 Ohio

St.3d 3, 9. An abuse of discretion is more than a mis-

take of law or an error in judgment. The term

connotes that the court’s attitude is arbitrary, unrea-

sonable or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219.

{f 47} The parties argued at length as to whether

there were discovery violations, seeming!y contesting

every detail. Notwithstanding these allegations and

counter-allegations, by the time appellant’s conti-

nuance motion was filed, this case had been on the

court’s docket for nearly three years. A trial date of

April 14, 2008 was first set on September 27, 2007,

and rescheduled for April 21 on January 8, 2008.

Absent clear and compelling indicia to the contrary, a

court acts within its discretion when it adheres to its

own scheduling order. Moreover, other than subse-

quent references to the telephone conference, there is

no record, so the regularity of the proceeding must be

presumed. Knapp v. Edwards Laboratories (1980),

61 Ohio St.2d 197, 199. Accordingly, appellant’s third

assignment of error is not well-taken.

III. Expert Witnesses

{¥ 48} Prior to trial, appellant moved in limine to

bar the testimony of appellee’s treating physicians,

Dr. Antonio DeLara and Dr. R. Michael Kelly. Dr.

DeLara should not testify, appellant insisted, in

sanction of discovery violations. Dr. Kelly’s testimony

should not be permitted because he failed to articu-

late a proper differential diagnosis for appellee and

his anticipated testimony that asthma developed into

emphysema was speculative.

{{ 49} A trial court has broad discretion in deter-

mining the admissibility of expert testimony. The

l4a

determination of the court on such issues will not be

disturbed absent an abuse of discretion. Terry uv.

Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 7 16.

{50} With respect to Dr. DeLara, the trial court

either found that the discovery violations of which

appellant complained were not proven or concluded

that any violation did not operate to appellant’s pre-

judice. Appellant has failed to articulate how these

decisions constituted an arbitrary, unreasonable or

unconscionable attitude by the court. Blakemore, supra.

{{ 51) Concerning Dr. Kelly, any issue of differential

diagnosis as a determinant of scientific reliability

goes to causation. Cutlip v. Norfolk Southern Corp.,

6th Dist. No. L-02-1052, 2003-Ohio-1862, J 45. In the

present matter, causation was properly determined

on summary judgment and was not at issue in trial.

{1 52} Dr. Kelly’s testimony regarding the relation-

ship between asthma and emphysema was in response

to appellant’s assertion during trial that it was

emphysema rather that asthma that accounted for

appellee’s breathing difficulties. Being as this was an

issue that appellant inserted into trial, it can hardly

claim prejudice if its opposition presents opposing

testimony.

(1 53} Accordingly, appellant’s fourth assignment of

error is not well-taken.

IV. Exposure Testimony

{54} During trial appellant attempted to block

testimony from appellee and other railroad workers

as to their regular daily exposure to diesel exhaust in

the cabs of appellee’s locomotives. Since causation

had already been established, appellant insisted, tes-

timony as to exposure to exhaust was irrelevant and

l5a

its introduction served only to arouse the passion of

the jury. The trial court admitted such testimony

over appellant’s objection.

{ 55} Appellee maintains that the exposure testi-

mony went not to causation, but to refute appellant’s

assertion that his asthma was mild rather than severe

as maintained by appellee’s treating physicians.

Showing the frequency of exposure corroborated his

doctors’ assessment of his condition, appellee suggests.

Moreover, according to appellee, his daily exposure to

diesel exhaust was relevant to his request for an

award of damages for pain and suffering and mental

anguish for the time he was forced to breathe these

fumes.

{1 56} Evidence which is permissible for one purpose

may be admitted, even though there may be a purpose

for which such evidence is inadmissible. Dorsten v.

Lawrence (1969), 20 Ohio App.2d 297, 302; Evid.R.

105. When this occurs, the rule requires a trial court

to issue a limiting instruction to the jury if an

opposing party requests such an instruction. Jd. If no

such instruction is requested, however, any error is

waived. Lewicky v. Accurate Bldg. Sys. (Dec. 3, 1998),

8th Dist. No. 72906.

{1 57; In this matter, evidence as to appellee's

exposure to diesel exhaust was admissible on the

issue of the severity of appellee’s condition and to

establish pain and suffering. Appellant failed to request

any limiting instruction. Accordingly, appellant’s fifth

assignment of error is not well-taken.

l6a

V. Jury Instructions

{J 58} In its sixth assignment of error, appellant

complains that it was prejudiced by the trial court’s

instruction that workers’ compensation did not apply

to appellee; that, if the jury could not differentiate

between damages resulting from emphysema and

those from asthma, appellant was liable for the whole;

and that assumption of the risk was not a defense.

(J, 59} “A charge to the jury should be a plain, distinct

and unambiguous statement of the law as applicable

to the case made before the jury by the proof adduced.”

Marshall v. Grtbson (1985), 19 Ohio St.3d 10, 12. The

trial court is vested with broad discretion in fashioning

the language of the charge and its determination as

to the propriety of the instructions will not be dis-

turbed absent an abuse of that discretion. Garbers v.

Rachwal, 6th Dist. No. L-06-1212, 2007-Ohio-4903,

q 19.

A. Workers’ Compensation

{{ 60} Prior to deliberation the trial court, in its

instructions, advised the jury that appellee brought

the suit against appellant, “ * * * for injumes and dam-

ages he received while in the course of his employ-

ment as a locomotive engineer. Railroad employees

are not covered by workers’ compensation. Congress

has passed federal legislation requiring railroad

employees to bring these actions in Court * * *.

[Appellee] has done so.” (Emphasis added.)

{J 61} Appellant does not contend that this instruc-

tion 1s an inaccurate statement of the law. Rather, it

claims that by advising the jury that workers’

compensation is unavailable to railroad workers, the

court violated a corollary to the collateral source rule

and that this violation operated to its prejudice.

L7a

Appellant cites to cases in several foreign jurisdic-

tions which, it claims, find introduction of this

information reversible error.

(| 62) Appellee insists that the instruction belongs

in the case because most jurors assume that railroad

workers are eligible for workers’ compensation and

may improperly adjust an award to take such com-

pensation into account. Moreover, appellee maintains,

it is local custom in both state and federal courts to

include such language.

{{ 63} In Fiche! v. New York Central R. Co. (1963),

375 U.S. 253, a railroad worker pursued a FELA

claim for injuries sustained on the job. When the

worker prevailed at tmal, the railroad appealed,

arguing that it should have been permitted to intro-

duce as evidence of a motive for not returning to work

testimony that the plaintiff was receiving disability

payments. The appeals court reversed on this ground

and ordered a new tria! on damages. (2 C.A.1963),

319 F.2d 12, 14. On further appeal, however, the

Supreme Court of the United States reversed the

court of appeals, concluding that the likelihood of the

misuse of this information by the jury outweighed its

probative value and could operate to the plaintiffs

prejudice. 375 U.S. at 255.

{J 64} A corollary of the Eichel ruling forms the

basis for the cases upon which appellant relies. In

Weinell v. McKeesport Connecting R. Co. (3 C.A.1969),

411 F.2d 510, a railroad employee prevailed in a

FELA suit after a jury tnal. The railroad appealed on

a number of grounds, including the trial court’s

refusal to instruct the jury that FELA was not the

only source by which the plaintiff could recover for

his injury. This instruction was requested in response

to the statement of plaintiffs counsel during opening

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that FELA, “ * * * provides the only method by which

a railroad employee * * * may recover damages * * *.”

The appeals court reversed the verdict, not on this

ground, but because the court had issued to the deli-

berating jury a “dynamite instruction” that, if they

were unable to reach a verdict, it would be an “ * * *

an encouragement to the Communists * * *.” Jd. at

513. In passing, the court noted that it considered

plaintiffs opening comments “improper” and “* * * *

we assume will not be made again.” 7d. at 512.

{J 65} In Stillman v. Norfolk & Western R. Co.

(4 C.A.1987), 811 F.2d 834, 838, an unsuccessful

FELA plaintiff argued that the trial court erred in

refusing his proposed instruction that recovery under

FELA was his only possible remedy and that he would

receive no workers’ compensation benefits. The appel-

late court rejected this argument, finding workers’

compensation “ * * * completely irrelevant to the

issues in the case, and allowing the jury to consider

such information could have prejudiced the railroad.”

Moreover, citing Ezchel, the court noted that defen-

dants in FELA cases are not allowed to inform a jury

that a plaintiff has received benefits from a collateral

source. “We perceive no reason for a different rule

when the plaintiff in a FELA case seeks to inform

the jury of the absence of benefits from a collateral

source.” Id.

({ 66} Stillman was followed, and perhaps expanded,

in Hileman v. The Pittsburgh and Lake Erte R. Co.

(1996), 546 Pa. 433, 437 (“Railroad employees do not

automatically receive worker's [sic] compensation

payments * * *” deemed an erroneous charge.);

Kansas City Southern R. Co. v. Stokes (Texas App.,

2000), 20 S.W.3d 45, 48-50 (* * * * not entitled to

benefits under Texas Workers Compensation laws, and

19a

the Federal Employers Liability Act is his exclusive

remedy * * * ” instruction was reversible error.);

Schmitz v. Canadian Pacific R. Co. (7 C.A.2006), 454

F.3d 678, 685 (Trial court properly refused to answer

jury question as to whether plaintiff received

workers’ compensation benefits. )[.]

{| 67} None of the cases appellant cites are binding

upon this court. Ultimately, our question is whether

instructions containing language reflecting a correct

statement of the law is so prejudicial to the railroad

that its inclusion constitutes an abuse of discretion.

Pursuant to Eichel, at 255, this involves an analysis

of whether the likelihood that the jury will misuse

this information outweighs its value.

{{ 68} In Eichel, the court concluded that the

introduction of evidence of the plaintiffs disability

pension payments was improper. Such payments

could in no way be used in mitigation of other dam-

ages and the use of such evidence in support of the

proposition that such payments might precipitate

malingering was, at best, tenuous. Inclusion of such

evidence, then, would result in a potential for misuse

by the jury that outweighed the value of the evidence.

Id.

{{ 69} This rule, according to appellant, has now

morphed into a flat rule that any mention of workers’

compensation payments, or the lack thereof, in a

FELA case is per se reversible error. We are per-

plexed at this purported result.

{{ 70} In Weinell, at 512, in dicta and without any

analysis or citation to authority, the appeals court

disapproves telling the jury that a FELA action is the

“only way” a railroad worker may be compensated for

an on-the-job injury. Stillman, at 838, echoes this

20a

conclusion and, citing Ezchel for the proposition that

a defendant may not inform a jury of collateral bene-

fits, essentially finds that what is good for the goose

is good for the gander. Stillman also deals with

whether a jury may be informed that FELA is the

plaintiffs “only possible remedy.” Stokes is also an

exclusive remedy case. Hileman and Schmitz are

pure “no mention” of workers’ compensation cases.

{J 71} The most persuasive of these cases, in our

view, is Schmitz because it involves a question from a

jury as to whether a FELA plaintiff can collect work-

ers’ compensation. This question lends considerable

credence to appellee’s argument that uninstructed

jurors might assume that a FELA plaintiff is entitled

to other compensation. It seems to us that, just as a

jury informed of collateral disability payments might

improperly reduce an award, so too might a jury that

mistakenly assumes that a FELA plaintiff will receive

collateral workers’ compensation benefits be tempted

to adjust its award. Given this potential mischief, we

cannot say that the trial court acted arbitrarily,

unreasonably or unconscionably when it instructed

the jury that appellee was not eligible for workers’

compensation on this claim.

B. Emphysema

(| 72} The court instructed the jury:

{{ 73) “If you award damages, you shall award

Plaintiff such a sum as you believe will fairly and

justly compensate him for his asthma. If you find that

Plaintiffs pulmonary or lung injures also involve

emphysema, you shall award no sum for the

emphysema. If you cannot separate asthma from

emphysema with respect to the Plaintiffs pulmonary

2la

and lung damage, the Plaintiff is—the Defendant is

liable for all such pulmonary and lung damage.”

(1 74} Appellant insists that this instruction unfairly

holds it responsible for appellee’s emphysema even

though asthma was the sole basis of liability.

{1 75} Appellee responds that it was appellant who

brought emphysema into the case, positing it as a

cause for some or all of appellee’s debility. Since it was

appellant who asserts that emphysema, not asthma,

caused appellee’s diminished health, the burden of

proof should be on appellant to demonstrate the

degree of emphysema’s influence on appellee’s health.

Moreover, appellee maintains, emphysema should not

have been permitted in the case at all, because FELA

holds a railroad responsible for an employee’s injury

irrespective of the degree of the railroad’s relative fault.

{| 76} “Under the FELA, an employee who suffers

an ‘injury’ caused ‘in whole or in part’ by a railroad’s

negligence may recover his or her full damages from

the railroad regardless of whether the injury was also

caused ‘in part’ by the actions of a third party.”

Norfolk & Western R. Co. v. Ayers (2003), 538 U.S.

135, 165-166. “FELA allows an injured worker to

recover his entire damages from the railroad whose

negligence jointly caused an injury, thus placing on

the railroad the burden of seeking contribution from

other tortfeasors.” Hess v. Norfolk Southern R. Co.,

153 Ohio App.3d 580, 2003-Ohio-4172, 7 55, rev., in

part, on other grounds, 106 Ohio St.3d 389.

{{@ 77} This issue must be considered in the specific

factual and procedural posture of the case. The jury

heard conflicting testimony from experts who testified

that emphysema was a progression of asthma and

that it was not. The same experts divided on the

22a

question of whether appellee’s emphysema was a

recent development or had existed coextensively with

his asthma for some time. The sole basis of liability

had already been determined to have been asthma

and, indeed, appellee attempted to limit the damages

trial to evidence concerning only asthma.

{{ 78} We do not believe that in this context Ayers

and Hess are applicable. Those cases dealt with a

single injury that may have had been caused by one

or more agents in addition to the railroad. Here,

there was testimony submitted, if believed, by which

the jury could have found that appellee had two

distinct conditions. Of these two injuries, it had been

determined on summary judgment that appellant

was only responsible for one.

{J 79} Nevertheless, we conclude that the instruc-

tion was proper. It was appellant that advanced the

theory that its damages should be mitigated because

emphysema rather than asthma was at their root. It

seems reasonable that the proponent of such a posi-

tion should have the burden to demonstrate the

degree to which this might be so. See Minnich uv.

Ashland Oil Co. (1984), 15 Ohio St.3d 396, syllabus.

This is the effect of the challenged instruction.

C. Assumption of the Risk

{{ 80} The court charged the jury:

{{ 81} “You are further instructed that assumption of

the risk is no bar to recovery under the Federal

Employers’ Liability Act or the Locomotive Inspection

Act.

{{ 82} “[Appellant], cannot require [appellee] to

assume the risk of injury while working for the

railroad, and {appellant] may not argue that it is not

————————————————————

23a

liable or that its liability should not [sic] be reduced

because of [appellee’s] assumption of the risk.”

{f 83} Appellant argues that an instruction on

assumption of the risk goes to liability, which had

already been determined on summary judgment.

Appellant suggests that the instruction was

irrelevant and operated to its prejudice.

{ 84} We agree with appellant that the instruction

was surplusage in a damages-only trial, but we fail to

see, and appellant fails to articulate, in what manner

this charge operated to its prejudice.

{J 85} Accordingly, appellant’s sixth assignment of

error is not well-taken.

VI. Expert Wage Testimony

{J 86} In its seventh assignment of error, appellant

suggests that the trial court erred in denying its

motion for a directed verdict or a J.N.O.V. because

appellee failed to present expert testimony on the

issue of his lost wages.

{{ 87} A motion for a directed verdict shall be

granted if a trial court, “ * * * after construing the

evidence most strongly in favor of the party against

whom the motion is directed, finds that upon any

determinative issue reasonable minds could come to

but one conclusion upon the evidence submitted and

that conclusion is adverse to such party* * *.” Civ.R.

50(A)(4). A motion for a judgment notwithstanding

the verdict may be sustained, “ * * * only if there was

insufficient evidence to permit reasonable minds to

reach different conclusions, and conversely, the trial

court had a duty to overrule the motion for judgment

notwithstanding the verdict if there was sufficient

evidence to permit reasonable minds to reach differ-

24a

ent conclusions.” McComis v. Baker (1973), 40 Ohio

App.2d 332, 335, citing O’Day v. Webb (1972), 29 Ohio

St.2d 215 at paragraph four of the syllabus.

{f 88} Appellant insists that a plaintiffs recovery

for lost wages must be established with reasonable

certainty and may not be permitted when the evidence

is subject to speculation and conjecture. Such certainty

may only be achieved, according to appellant, by

testimony of an expert in such matters. In support of

this proposition, appellant cites Sampson v. Missouri

Pacific R. Co. (Mo.1978), 560 S.W.2d 573, 589.

({ 89} Appellee responds that he testified to the

wages he had been making, the date he could no

longer work for the railroad and the amount of time

that he intended to continue working. Appellee in-

sists that all of this testimony was within his

knowledge and it was all the jury needed to compute

his lost wages. No expert testimony was necessary,

and certainly not mandated.

{| 90) Sampson is not a FELA case. It is a Missouri

tort action and, as nearly as we can ascertain,

premised wholly on Missouri law. It is not binding

precedent for this court, nor do we find it particularly

persuasive. Appellant cites no other authority for its

assertion that mandatory expert testimony must be

offered to prove lost wages.

{| 91) Appellee was competent to testify to all of

the elements necessary to compute lost wages. Appel-

lant had the opportunity to cross examine appellee

and was free to call its own expert if it so chose. Like

the trial court, we find no grounds to support a

directed verdict or a J.N.O.V. Accordingly, appellant’s

seventh assignment of error is not well-taken.

VIl. Damage Calculations

(1 92} In its eighth assignment of error, appellant

contends that the jury improperly computed its

award because appellee failed to present evidence of

either a method to reduce the award to present value

or information detailing his state and federal income

taxes so as to allow the jury to non-speculatively

exclude such items from the award. Appellee re

sponds that nothing in the law mandates that he

present testimony on either of these issues.

{f 93} An award for wage loss from future earnings

under FELA is computed by taking estimated gross

wages, less federal and state taxes that would not be

incurred because the amount is a tort award rather

than earnings. Norfolk & Western R. Co. v. Liepelt

(1980), 444 U.S. 490, 493. The product of this calcu

lation is then reduced to present value. St. Louis

Southwestern R. Co. v. Dickerson (1985), 470 U.S

409, 411-412.

{| 94} While it has been held to be error to deny a

FELA defendant the right to put on evidence about

reducing an award by taxes or adjusting to present

value, Liepelt at 494; Monessen Southwestern R. Co.

v. Morgan (1988), 486 U.S. 330, 340, appellant presents

us with no compelling authority of a concomitant

duty of a FELA plaintiff to come forth with such

evidence. Indeed the approved method for dealing

with these issues is a jury charge. Liepelt at 498;

Monessen at 342.

{J 95} In this matter, the trial court instructed the

jury:

{f 96} “If your verdict is in favor of the Plaintiff,

you will not add any sum of money to the amount of

the verdict to account for income taxes * * * because

26a

the amount awarded to the Plaintiff by your verdict

is not taxable income to the Plaintiff, and you should

not consider income taxes in fixing the amount of

your award.”

{4 97) The court also instructed at length on how to

reduce the award to present value and provided the

jury with present value tables as a suggested method

of computing present value.

(| 98) Both of these instructions are in conformity

with the charges upheld in the cases. If, as it is pre-

sumed to do, Pang v. Minch (1990), 53 Ohio St.3d

186, 195, the jury followed the instructions of the

court, its award computations were proper. Accor

dingly, appellant’s eighth assignment of error is not

well-taken.

VIII. Manifest Weight

{ 99) In its final assignment of error, appellant

asserts that the verdict was against the manifest

weight of the evidence and the award of $2.6 million

was “clearly excessive.”

{41 100) “Judgments supported by some competent,

credible evidence going to all the essential elements

of the case will not be reversed by a reviewing court

as being against the manifest weight of the evidence.”

C.E. Morris v. Foley Constr. Co. (1978), 54 Ohio St.2d

279, syllabus. Great deference is given to the jury

who, by virtue of its ability to observe the demeanor

of the witnesses and test the witnesses’ credibility, is

presumed to have delivered a correct verdict. Seasons

Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.

{1 101) We have carefully examined the transcripts

of these proceedings. There was clearly evidence

submitted which, if believed, supported all of the

27a

elements necessary to award appellee damages for

his injury. As far as the amount of the award,

appellant’s only argument seems to be that $2.6

million is a lot of money, so obviously the jury lost its

way or succumbed to the throes passion.

{{ 102} Appellee presented evidence tending to

show that for more than two decades he had been

exposed to diesel exhaust in his workplace, that this

exposure caused and then exacerbated his asthma

and that his condition would eventually worsen,

almost certainly reducing his lifespan. Given this, we

cannot say that the jury’s award was excessive.

{| 103} Accordingly, appellant’s ninth assignment

of error is not well-taken.

{{ 104} On consideration whereof, the judgment of

the Lucas County Court of Common Pleas is affirmed.

It is ordered that appellant pay the court costs of this

appeal, pursuant to App.R. 24.

JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the

n.andate pursuant to App.R. 27. See, also, 6th Dist.

Loc.App.R. 4.

PETER M. HANDWORK, P.J., and ARLENE

SINGER, MARY J. BOYLE, JJ., concur.

Judge MARY J. BOYLE, Eighth District Court of

Appeals, sitting by assignment of the Chief Justice of

the Supreme Court of Ohio.

28a

APPENDIX C

IN THE COURT OF COMMON PLEAS OF

LUCAS COUNTY, OHIO

Case No.: CI 05-5191

FRANCIS BATTAGLIA,

Plaintiff,

VS.

CONRAIL, et al.,

Defendants.

Honorable Denise Ann Dartt

OPINION AND JOURNAL ENTRY

I. STATEMENT OF FACTS

Plaintiff Francis Battaglia was hired by Conrail

on September 7, 1976, as a trainman/brakeman, was

promoted to conductor, and in 1993 became an engi-

neer. On September 9, 2005, Mr. Battaglia filed the

instant action against Conrail, Norfolk Southern

Corporation, CSX Transportation, Inc., and Conrail

Shared Assets. Mr. Battaglia claims that during his

tenure with the railroad he has been continuously

exposed to diesel exhaust inside his locomotive cabs

in which he works and such exposure was the cause

of his asthma. The Complaint alleges violations of the

Federal Employers’ Liability Act (Count One), the

Locomotive Inspection Act (Count Two), and 49 C.F.R.

Section 229 et seq. (Count Three).

29a

This cause is now before the Court upon Plaintiffs

Motion for Partial Summary Judgment as to Count

Two only.

Il. SUMMARY JUDGMENT STANDARD

The Supreme Court of Ohio has set forth a

tripartite test that must be met before a motion for

Summary judgment can be granted: that there is no

genuine issue as to any material fact; that movant is

entitled to judgment as a matter of law; and that

reasonable minds can come to but one conclusion and

that conclusion is adverse to the non-moving party

Harless v. Willis Day Warehousing Co. (1978), 54 Ohio

St.2d 64, 66, 375 N.E.2d 46.

A party who claims to be entitled to summary

judgment on the grounds that a nonmovant cannot

prove its case bears the initial burden of: 1) specifi-

cally identifying the basis of its motion, and 2) identi-

fying those portions of the record that demonstrate

the absence of a genuine issue of material fact

regarding an essential element of the nonmovant’s

case. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293,

662 N.E.2d 264. The movant satisfies this burden by

calling attention to some competent summary judg-

ment evidence, of the type listed in Civ.R. 56(C),

affirmatively demonstrating that the nonmovant has

no evidence to support his or her claims. Jd. Once the

movant has satisfied this initial burden, the burden

shifts to the nonmovant to set forth specific facts, in

the manner prescribed by Civ. R. 56(E), indicating

that a genuine issue of material fact exists for trial.

Id; accord Vahila v. Hall, 1997-Ohio-421, 77 Ohio

St.3d 421.

30a

ll. DISCUSSION

Plaintiffs Motion for Summary Judgment and

Defendants’ Responses raise the following issues:

1) whether Mr. Battaglia was exposed to diesel

exhaust during the course of his employment with

Conrail; 2) whether such exposure constitutes a

violation of the Locomotive Inspection Act; and 3)

whether Mr. Battaglia’s asthma was caused by his

exposure to the diesel exhaust.

A. Plaintiffs Exposure to Diesel Exhaust

Mr. Battaglia testified in his deposition that he has

been continuously exposed to diesel exhaust inside

the locomotive cabs since the first day he “hired out.”

He further testified that diesel exhaust entered the

locomotive cabs through holes in the floors, cracks in

the doors, in the seals, and through the windows and

equipment compartment. Mr. Battaglia has frequently

reported the unsafe condition of the locomotives to

the railroad.

James Kermans, a co-worker of Mr. Battaglia,

stated in his affidavit that seals on the doors and

windows of locomotive cabs almost always leaked,

allowing diesel exhaust fumes to enter the cabs. In

addition, Mr. Kermans stated that the locomotives

were rarely maintained properly causing toxic diesel

exhaust fumes to come into the cab through the

firewalls, electrical cabinets, and cracks in the floor.

Defendants contend that Plaintiff must establish

that his exposure exceeded the permissible exposure

levels (PELs) or time weight averages (TWA) for

measurement of diesel exhaust set forth by the Occu-

pational Safety and Health Administration (OSHA)

or the American Conference on Governmental Indus-

dla

trial Hygienist (ACGIH). However, Defendants have

failed to cite any authority stating that Plaintiff must

demonstrate that his exposure exceeded the PELs or

TWA. To the contrary, Plaintiff has clearly established

through his testimony and that of Mr. Kermans that

he was exposed to diesel exhaust inside the cab

during the course of his employment.

B. Locomotive Inspection Act

A railroad is absolutely liable under the Locomotive

Inspection Act if a locomotive, either in violation of

the statute or the regulations promulgated there-

under, causes injury or death. Lilly v. Grand Trunk

Western Railroad Co. (1943), 317 U.S. 481; Urie v.

Thompson (1949), 337 U.S. 163, 190. A finding of

absolute liability is appropriate where there has been

a violation of a safety statute specifically aimed

at the railroad industry. Ries v. National Railroad

Passenger Corp. (1992), 960 F.2d 1156, 1159.

In the instant case, Plaintiff alleges that Defen-

dants violated 49 C.F.R. 229.43(a) which states as

follows:

“Products of combustion shall be released

entirely outside the cab and other compartments.

Exhaust stacks shall be of sufficient height or

other mears provided to prevent entry of prod-

ucts of combustion into the cab or other com-

partments under usual operating conditions.”

Defendants argue that 49 C.F.R. 229.43(a) is not

clear on its face and, therefore, the Court should give

deference to the FRA’s interpretation of the regula-

tion. However, the Court finds that the regulation is

clear and unambiguous—products of combustion

shall be released entirely outside the cab. See, Norfolk

Southern Railway Co. v. Baker (1999), 237 Ga. App.

32a

292, 514 S.E.2d 448. Since Plainuffs deposition and

his co-worker’s affidavit have sufficiently established

that diesel exhaust fumes were released into the cab

on a regular basis, the Court finds that Defendants

have violated 49 C.F.R. 229.43(a).

C. Causation

The railroad is liable if the exposure contributed to

any degree, even the slightest, to Plaintiffs asthma.

Aparicio v. Norfolk & Western Railway Co. (6th Cir.

1996), 84 F.3d 803.

Dr. R. Michael Kelly concluded in his affidavit and

report to a reasonable degree of medical certainty

that “Mr. Battaglia’s ongoing and regular exposure to

diesel exhaust, as a result of his work on the railroad,

was a significant factor in the development of his

asthma.”

In response, Defendants rely upon the report of Dr.

David Rosenberg which states that Plaintiffs asthma

was not related to his employment with the railroad

but rather to his past smoking history, esophageal

reflux and atopy. However, Dr. Rosenberg’s report

was not properly authenticated by an affidavit and is

thus not acceptable Civ.R. 56(E) evidence and cannot

be considered by this Court.

Defendants also rely on reports by Dr. Laura Green

which state that there is no scientific literature to

support a causal connection between asthma and

exposure to diesel exhaust. Dr. Green concluded that

“I cannot find compelling or otherwise reliable

evidence that on the job exposures at Conrail have

harmed Mr. Battaglia’s lungs.” Again, Dr. Green’s

reports are unsworn testimony and under Civ.R.

56(E) cannot be considered by this Court.

33a

Therefore, the Court finds that Plaintiff's exposure

to the diesel exhaust fumes contributed to his asthma.

Accordingly, Plaintiff is entitled to judgment as a

matter of law on Count Two of his complaint.

JUDGMENT ENTRY

It is ORDERED that Plaintiffs Motion for Summary

Judgment on Count Two is GRANTED.

The trial date of October 9, 2007 is confirmed as to

Counts One and Three.

An assessment of damages on ‘ount Two is con-

tinued to trial date.

Date: June 15, 2007 /s/ Denise Ann Dartt |

Denise Ann Dartt, Judge

34a

APPENDIX D

IN THE COURT OF COMMON PLEAS OF

LUCAS COUNTY, OHIO

Case No.: CI 05-5191

FRANCIS BATTAGLIA,

Plaintiff,

VS.

CONRAIL, et al.,

Defendants.

Honorable Denise Ann Dartt

OPINION AND JOURNAL ENTRY

This cause is before the Court upon Plaintiffs

Motion for Partial Summary Judgment on Count One

and Defendant Conrail’s Motion to Reinstate the

Unresolved Portions of its Motion for Summary

Judgment. After full consideratior cf the memoranda

and evidence submitted and the applicable law, for

the reasons that follow this Court finds Plaintiffs

Motion well-taken but Defendant’s Motion not well-

taken, leaving damages as the only issue for trial.

I. Plaintiffs Motion for Partial Summary Judgment.

On June 15, 2007, this Court granted Plaintiffs

Motion for Partial Summary Judgment as to Count

Two (Locomotive Inspection Act violation), finding

that Plaintiff clearly established that he was exposed

to diesel exhaust inside the cab, that Defendants

35a

violated 49 C.F.R. 229.43(a) by failing to prevent

entry of products of combustion into the cab, and that

Dr. Kelly’s affidavit established that Plaintiffs ongo-

ing exposure to diesel exhaust was a significant

factor in the development of Plaintiffs asthma, con-

cluding that Plaintiffs exposure to the diesel exhaust

fumes contributed to Plaintiffs asthma. Defendants’

Motion for Reconsideration was denied August 2,

2007.

On August 21, 2007, “laintiff filed a Motion for

Partial Summary Judgment as to Count One (vio-

lation of Federal Employers Liability Act) and volun-

tary dismissal of Count Three (regulatory violation).

For a Federal Employers Liability Act (““FELA”)

claim, Plaintiff need only show a LIA violation and

that the violation caused, at least in part, plaintiffs

injury. Crane v. Cedar Rapids & Iowa City Railway

Co. (1969), 395 U.S. 164, 166; Fontaine v. National

Railroad Passenger Corp. (1997), 54 Cal. App.4th

1519, 1526. Thus, if the court finds an LIA violation,

such violation constitutes negligence per se. Urie v.

Thompson (1949), 337 U.S. 163, 189; Paul v. Genesee

& Wyoming Industries, Inc. (W.D. NY 2000), 93

F.Supp.2d 310, 315; Haworth v. The Burlington

Northern and Santa Fe Railway Co. (E.D. Wash.

2003); 281 F.Supp.2d 1207, 1210-11; Mickler uv.

Minishillen & Tuscarawas Ry. Co. (6th Cir. 1993), 13

F.3d 184, 188; Waggoner v. Ohio Central Railroad,

Inc. (S.D. Ohio 2007), Case No. 2:06-CV-250, 2007

U.S. Dist. Lexis 87197, at pgs. 8, 11. Where there is a

violation of the LIA, the railroad is liable and the

court need not consider the negligence claim under

FELA. Hinkle v. Norfolk Southern Railway Co. (S.D.

Ohio 2006), 2006 U.S. Dist. Lexis 92515, at *22; Kobe

36a

v. Canadian National Railway Co. (D. Minn. 2007),

Civ. No. 06-3439, 2007 WL 2746640, at *7.

On June 15, 2007, this Court found that Defen-

dants violated the LIA by failing to prevent the entry

of diesel fuel into the cab and that this exposure to

diesel fuel contributed to Plaintiffs asthma. There-

fore, Plaintiff has demonstrated that Defendants

were negligent and that such negligence proximately

caused Plaintiffs injury.

Once the court finds that a defendant has violated

a safety statute and such violation caused, at least in

part, Plaintiffs injury, evidence of contributory negli-

gence and evidence of other possible causes is elimi-

nated for any purpose. Carter v. Atlanta & St.

Andrews Bay Railway Co., 338 U.S. 430, 436-37

(1949); Eckert v. Aliquippa & Southern R.R. Co. (3rd

Cir. 1987), 828 F.2d 183, 186; Haworth, supra at

1214; Pratico v. Portland Terminal Co. (Ast Cir.

1985), 783 F.2d 255, 260; Neal v. Saga Shipping Co.

(5th Cir. 1969), 407 F.2d 481, 485-86.

Defendants cite to 45 U.S.C. Section 53 which

states that damages shall be diminished in propor-

tion to the amount of negligence attributable to the

employee, but Defendants ignore the exception at the

end:

“Provided, That no such employee who may be

injured ... shall be held to have been guilty of

contributory negligence in any case where the

violation by such common carrier of any statute

enacted for the safety of employees contributed

to the injury . . . of such employee.”

Since this Court has already determined that Defen-

dants violated the LIA and such violation contributed

to Plaintiffs injury, the above exception applies and

37a

the Court is prohibited from considering any evidence

regarding Plaintiffs contributory negligence or other

possible causes for his injury.

The Court therefore finds that no genuine issues of

material fact exist and Plaintiff is entitled to judg-

ment as a matter of law as to Count One.

Il. Defendant Conrail’s Motion to Reinstate the

Unresolved Portions of Its Motion for Summary

Judgment.

On September 7, 2007, Defendants filed a Motion

for Summary Judgment arguing that only Conrail

was Plaintiffs employer and that Plaintiff failed to

produce a liability expert report establishing that

Defendants’ alleged negligence was the cause of his

alleged asbestos related injuries. On January 25,

2008, Defendants withdrew their Motion.

Defendant Conrail filed a Motion to Reinstate the

Unresolved Portions of its Motion for Summary

Judgment on February 29, 2008. Defendant claims

that the portion of its Motion dealing with Plaintiffs

failure to produce a liability expert regarding asbes-

tosis is still an issue. However, Plaintiffs complaint

does not even contain any cause of action related

to asbestos or asbestos-related injuries—Plaintiff is

alleging injury as a result of exposure to diesel

exhaust, not asbestos. Furthermore, the Motion to

Reinstate is untimely as Motions for Summary

Judgment were to be filed by September 7, 2007.

Accordingly, Defendant’s Motion to Reinstate is not

well-taken.

JOURNAL ENTRY

It is ORDERED that Defendant’s Motion to Re-

instate the Unresolved Portions of its Motion for

d0a

ummary Judgment is DENIED

It is further ORDERED that Plaintiffs Motion fo:

Partial Summary Judgment as to Count One ji

GRANTED, leaving damages as the only issue for

trial

Date April 5 ZU00G Denise Ann Dartt

Denise Ann Dartt. Jud

APPENDIX I

PREME COURT OF OH

LDERATIO

40a

APPENDIX F

FEDERAL STATUTES

45 U.S.C. § 51. Liability of common carriers’ by

railroad, in interstate or foreign

commerce, for injuries to employees

from negligence; employee defined

very common carrier by railroad while engaging

in commerce between any of the several States or

Territories, or between any of the States and Territo

ries, or between the District of Columbia and any of

the States or Territories, or between the District of

Columbia or any of the States or Territories and any

foreign nation or nations, shall be liable in damages

to any person suffering injury while he is employed

by such carrier in such commerce, or, in case of the

death of such employee, to his or her personal repre-

sentative, for the benefit of the surviving widow or

husband and children of such employee; and, if none,

then of such employee’s parents; and, if none, then of

the next of kin dependent upon such employee, for

such injury or death resulting in whole or in part

from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect

or insufficiency, due to its negligence, in its cars,

engines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment.

Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of inter

state or foreign commerce; or shall, in any way

directly or closely and substantially, affect such

commerce as above set forth shall, for the purposes of

this chapter, be considered as being employed by

such carrier in such commerce and shall be consi-

dered as entitled to the benefits of this chapter.

4la

49 U.S.C. § 20701. Requirements for use

A railroad carrer may use or allow to be used

a locomotive or tender on its railroad line only

when the locomotive or tender and its parts and

appurtenances—

(1) are in proper condition and safe to operate

without unnecessary danger of personal injury;

(2) have been inspected as required under this

chapter and regulations prescribed by the Secre-

tary of Transportation under this chapter; and

(3) can withstand every test prescribed by the

Secretary under this chapter.

42a

APPENDIX G

FEDERAL REGULATION

49 C.F.R. § 229.43. Exhaust and Battery Gases

(a) Products 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.

(b) Battery containers shall be vented and battenes

kept from gassing excessively.

APPENDIX H

U.S. Department of Transportation

Federal Railroad Administration

Office of Safety Assurance and Compliance

LOCOMOTIVE CRASHWORTHINESS AND

CAB WORKING CONDITIONS

REPORT TO CONGRESS

September 1996

44a

CHAPTER 7

Locomotive Cab Air Quality

Poor cab air quality can be caused by the entry of

diesel exhaust gases into the cab. The causes are

exhaust system leaks and vented gas entering through

the cab windows and other apertures. Concerns often

arise when the locomotive is idling or moving through

enclosed spaces such as tunnels or deep cuts. Exposure

may be greatest for employees while occupying cabs of

trailing (non-lead) locomotives.

The diesel engine emissions of primary concern are

carbon monoxide (CO), oxides of nitrogen (as NO,),

and hydrocarbon (HC) vapors and particulates. Tests

under “worst case” conditions indicate that personnel

in the cabs of trailing locomotives may occasionally be

exposed to concentration levels of oxides of nitrogen

air contaminants in excess of recognized occupational

exposure limits. Continued vigtlance is needed to

prevent exposure to harmful exhaust emissions.

The potential entry of diesel exhaust gases into

spaces occupied by the crew is a primary concern

with respect to locomotive air quality. Two modes of

entry exist. First, exhaust system leaks may 2!!'ow

exhaust to enter the cab prior to being vented up the

stack. Current FRA regulations cover locomotive

exhaust system leaks of this type. Second, a possibil-

ity exists that properly vented exhaust gases may

enter the cab. Stacks are generally high enough, or

located aft to the direction of travel of the cab, so that

entry of properly vented exhaust gases into cabs of

lead locomotives moving outside of enclosed spaces—

such as tunnels—is not a problem. The _ highest

potential for cab contamination by properly vented

exhaust gases exists with idling locomotives, locomo-

45a

tives moving through enclosed spaces such as tunnels

or deep cuts, and occupied cabs of trailing locomotives.

This chapter addresses the findings of a study con-

ducted by FRA in an effort to identify and quantify

problems such as these. This study consisted of a

review of existing regulations, a study of the effects

of air quality on human performance, a review of

injury/illness data due to fumes reported to FRA

between 1990 and 1994, and air quality testing in the

Cascade Tunnel.

Review of Existing Federal Regulations and Stan-

dards

FRA reviewed the existing Federal regulations and

standards covering workplace and vehicle air quality.

The existing FRA regulation covering locomotive cab

air quality is contained in 49 CFR 229.43(a) and (b)

as follows:

Exhaust and Battery Gases

(a) Products of combustion shall be released en-

tirely outside the cab and other compartments.

Exhaust stacks shall be of suffictent height or

other means provided to prevent entry of products

of combustion into the cab or other compartments

under usual operating conditions.

(b) Battery containers shall be vented and bat-

teries kept from gassing excessively.

FRA does not specify limits for the concentration of

the products of diesel fuel combustion, and does not

require air exchange rates for locomotive cabs. How-

ever, the Occupational Safety and Health Adminis-

tration (OSHA) does specify workplace concentration

Limits in 29 CFR §1910.1000 (Air Contaminants) for

46a

the common products of diesel fuel combustion listed

in Table 7-1

OSHA Limits for Air Contaminants

[Mé AXIMUM 8-HOUR TIME |

GAS | WEIGHTED AVERAGE |

' (TWA) EXPOSURE |

CONCENTRATION

25 parts per ‘million (ppm)

Nitric Oxide (NO) E

Nitroven Dioxide | 5 5 ppm—at no time shall

(NO,) | exposure exceed

Sulfa Dioxide (SO, ) 15 ppm

4°)

Carbon Monoxide (CO) | 50 ppm

| Carbon Dioxide (CO,) ~1 5000 ppm

Table 7-1

FRA employs the OHSA criteria to determine

. . . . l

compliance with the Locomotive Inspection Act :

§20701. Requirements for use

A railroad carrier may use or allow to be used

a locomotive or tender on its railroad line only

when the locomotive or tender and its parts and

appurtenances:

(1) are in proper condition and safe to operate

without unnecessary danger of personal injury;

(2) have been inspected as required under this

chapter and regulations prescribed by the Secre-

tary of Transportation under this chapter; and

‘Public Law 103-272, July 5, 1994

47a

(3) can withstand every test prescribed by the

Secretary under this chapter.

The U.S. Military specifies the following air quality

standards for crew spaces of military vehicles in MIL-

STD-1472, Human Engineering Design Criteria for

Military Systems, Equipment, and Facilities:

“~

Outside fresh air shall be supplied at mini-

mum rate of 20 ft* per minute per person. Air

flow rates for hot-climate operation tempera-

tures above 90°F shall be maintained be-

tween 150 ft? and 200 ft®° per minute per

person, unless air conditioning is provided.

Air velocity at each person’s head location

shall be adjustable either continuously or

with not less than three ratings (off, low, and

high) from near zero to at least 400 feet per

minute.

Air shall be moved past personnel at a velocity

not more than 200 feet per minute. When

manuals or loose papers are used, airspeed

past these items shall not be more than 100

feet per minute, if possible, to preclude pages

in manuals from being turned by the air or

papers from being blown off of work surfaces.

Ventilation or other protective measures shall

be provided to keep gases, vapors, dust, and

fumes within the Permissible Exposure Limits

specified by 29 CFR §1910 and the limits

specified in the American Conference of Gov-

ernmental Industrial Hygienists (ACGIH)

Threshold Limit Values (TLV). Intakes for

ventilation systems shall be located to minim-

ize the introduction of contaminated air from

such sources as exhaust pipes.

48a

FRA also investigated how FAA regulates aircraft

cabin air quality. Discussions with FAA human factors

engineering staff responsible for aircraft heating,

ventilation and air conditioning (HVAC) revealed

that FAA has only very general HVAC requirements

because the commercial sector is very competitive in

this area, and is therefore market-driven. Current

aircraft designs greatly outperform the only two

criteria specified by FAA, listed as follows:

Each crew compartment must be ventilated,

and each crew compartment must have

enough fresh air (but not less than 10 cubic

feet per minute per crew member) to enable

crew members to perform their duties without

undue discomfort or fatigue.

Crew compartment air must be free from

harmful or hazardous concentrations of gases

or vapors. In meeting this requirement, the

following apply:

e Carbon monoxide concentrations in excess

of one part in 20,000 parts (or 50 ppm) of

air are considered hazardous.

e Carbon dioxide in excess of three percent

by volume (sea level equivalent) is con-

sidered hazardous in the case of crew

members. Higher concentrations of carbon

dioxide may be allowed in crew compart-

ments if appropriate protective breathing

equipment is available.

« + *

Cab Air Quality Measurement Conclusions

Data submitted to FRA by railroads shows approx-

imately 50 railroad employees per year become ill due

49a

to exposure to poor air quality in locomotive cabs,

resulting in approximately 1000 days per year of lost

time. This is a problem that railroads should not

ignore. However, several sets or gas sampling mea-

surements taken over the past 25 years have failed to

confirm a widespread problem with cab air quality,

even under conditions tested to closely simulate a

worst case scenario.

FRA concludes that personnel in the cabs of trail-

ing locomotives may be occasionally exposed to

concentration levels of oxides of nitrogen air conta-

minants in excess of recognized occupational expo-

sure limits, under certain adverse train operating

conditions such as passing through long tunnels. Due

to the high levels of gases found in the trailing cab of

trains passing through regions of restricted air ex-

change such as long tunnels, railroads should moni-

tor cab air quality and take appropriate responsive

action. For instance, a railroad could either:

quality for the crew riding in the trailing

locomotive, with means such as positive air

pressure in the cab to inhibit the entry of air

contaminants; or

locomotive while passing through tunnels or

similar environments.

The new locomotives may provide a better air

quality environment for the crew. As the older loco-

motives are replaced with newer units, the trend of

air quality is improving.

FRA recommends that railroads conduct a study of

their operations to determine sites and types of

operations that pose a high risk for unacceptable cab

50a

air quality. Railroads should take operational steps

to prevent exposure of personnel to high levels of

diesel exhaust gases in trailing locomotive cabs at

each site or during each type of operation identified.

FRA will continue to enforce requirements of FRA

regulations that require exhaust gases to be properly

vented. FRA will also continue to apply OSHA crite-

ria as reference standards to determine compliance

with the Locomotive Inspection Act, as codified. FRA

does not intend to pursue further rulemakings that

addresses cab air quality at this time. However, FRA

will continue to monitor the number of reported ill-

nesses due to cab air quality. If industry efforts do

not result in a decrease in the number of incidents

attributable to poor air quality, further actions will

be taken.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.