Opposition Brief — Consolidated Rail Corp. v. Battaglia

Supreme Cour, US

7! ) FILE D-

deat AUG 2.6 2010

} OFFICE OF THE CLERK

Dn The

Supreme Court of the Anited States

SJ

CONSOLIDATED RAIL CORPORATION,

Petitioner,

V.

FRANCIS BATTAGLIA,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Ohio,

Sixth Appellate District

+

BRIEF IN OPPOSITION

¢

E.J. LEIZERMAN*

MICHAEL JAY LEIZERMAN

RENA M. SAMOLE

E.J. LEIZERMAN &

ASSOCIATES LLC

717 Madison Avenue

Toledo, Ohio 43624

(419) 243-1010

toni@leizerman.com

Counsel for Respondent

August 26, 2010 *Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether the trial court erred in granting sum

mary judgment on liability where the only ad

missible evidence on causation showed that

exhaust fumes from Conrail’s locomotive resulted

in Mr. Battaglia’s adult-onset-asthma.

Whether this Court should grant the petition for

certiorari to consider whether the Ohio Court of

Appeals properly read the plain meaning of the

applicable diesel exhaust regulation

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................... inode

Ra CP FAG FSG I GE FLD vecccccscccvesesescscevesvccsocsore — 3V

STATEMENT OF THE CASE. ................ccccseseees l

REASONS FOR DENYING THE WRIT ............... 6

[. THIS CASE PRESENTS AN INADE

QUATE VEHICLE TO ADDRESS ANY

OSTENSIBLE CONFLICT ABOUT IN-

TERPRETATION OF THE CAUSATION

STANDARD IN FELA CASKS ................0.. 6

A. Based on the evidence, the trial court’s

summary judgment withstands any in-

terpretation or standard of causation

proposed by Conraill...................065 ijeeeaie’ 7

8. Conrail did not press its challenge to

Rogers and its progeny.................:6c000e 1]

(1. THERE IS NO DEEP OR PERSISTENT

CONFLICT ABOUT ROGERS’ INTER

PRETATION OF THE FELA .................... . 14

A. Every federal court of appeals address

ing the issue has followed Rogers .......... 14

B. Rogers is consistent with the FELA

decisions that came before it................. 16

C. Any difference found in a handful of

state supreme courts between the

KELA language (“in whole or in part”)

and the Rogers interpretative language

(“even the slightest”) is mere semantic

discrepancy ........... ay ao cane er knee eb

TABLE OF CONTENTS — Continued

Page

ltl ON THE MERITS, THE STANDARD

FOR CAUSATION UNDER FELLA IS

RELAXED ....... fain sa Sen ARATE 22

IV. THERE IS NO REASON TO GRANT THE

PETITION FOR CERTIORARI TO CON

SIDER THE OHIO COURT OF APPEAL’S

READING OF 49 CLE.R. § 229.43 26

CONCLUSION 32

TABLE OF AUTHORITIES

CASES

Adams v. Robertson, 520 U.S. 83 (1997)

Adarand Constructors, Inc. v. Mineta, 584 U.S

103 (2001)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986).

Am. Dredging Co. v. Miller, 510 U.S. 443 (1994)

Blue Shield of Va. v. McCready, 457 U.S. 465

(1982).

Brooks v. Wash. Terminal Co., 593 F.2d 1285

(D.C. Cir. 1979).

Brown v. Balt. & Ohto R.R. Co., 805 F.2d 1183

(4th Cir. 1986) ......... saatadnes sane

Carter v. Atlanta & St. Andrews Bay Ry. Co.,

338 U.S. 430 (1949)...

Chapman v. Unton Pac. R.R., 467 N.W.2d 388

(Neb. 1991)...

Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984)..........

Christensen v. Harris Cly., 529 U.S. 576

CE iaiiceass salsuss inskcnscecaiuceiesgoveinansiasecets

Citizens Ins. Co. v. Burkes, 381 N.E.2d 963

Eee unit as SN foc a ds chvecncsocvacnaceee eeeees ,

Consol. Rail Corp. v. Gottshall, 512 U.S. 532

(1994) .....:.. taean chaos Ske de nuticcn ey ede oe

OQ

TABLE OF AUTHORITIES — Continued

C'ora, S Pac C'o - mM ty U) Ss O20) \ 1949)

Cox v. Ky. Dept. of Transp., 53 F.3d 146 (6th

Cir. 1995)

Crafton v. Union Pac. R. Co., 585 N.W.2d 1i5

(Neb. 1998)

Cusson v. Can. Pac. Ry. Co... 115 F.2d 430 (2d

Cir. 1940).

Kglsaer v. Scandrett, 151 F.2d 562 (7th Ci

L949)

Gardner v. CSX Transp., Inc., 498 S.K.2d 473

(W. Va. 1997).

Gautreaux v. Scurlock Marine, Inc., 107 F.3d

331 (5th Cir. 1997) .

Green v. BF. Goodrich Co., 619 N.E.2d 497

(Ohio App. Ct. 1933).....

Harbin v. Burlington N. RR. Co., 921 F.2d 129

(7th Cir. 1960) ......0.:-5. | eee as

Hardyman v. Norfolk & W. Ry. Co., 243 F.3d

255 (6th Cir. 2001) ..

Heater v. Chesapeake & Ohio Ry. Co., 497 F.2d

1243 (7th Cir. 1974) ...

Herb v. Pitcairn, 324 U.S. 117 (1945) ...

Hines v. Consol. Rail Corp., 926 F.2d 262 (3rd

CORP, REED vncccnciccccacecpenctsidacee Oe

Lilly v. Grand Trunk W. R. Co., 317 U.S. 481

(1945)..

TABLE OF AUTY

Marazzato v. Burlington N.R. ¢

(Mont. 1991)

Moody VU, Me

Cir. 1987)

RP

Cent

Continue d

LORTTELES

P2d 672

PF .

sly

C‘o.. 823 F.2d 693 (lst

Mullahon v. Unton Pac. R.R., 64 F.3d 1358 (9th

Cir. 1995)

NCAA v. Smith, 525 U.S. 459 (1990

Nicholson v. Erie RR. Co... 253 F2d 939 (2

Cir. 1958)

Nivens v. St. Louis Su

(5th Cir. 1970)

Burlington

1996)

Nordgren uv.

1246 (8th Cir

Norfolk & W Ry Co

(2003)....

Norfolk S. Ry. Co

(200 7)....

Palsgraf v. Long Is

(N.Y. 1928)

Penn. R. Co. v

(1936)

[llinois

Raab v. Utah Ry. Co

2009)

Reed U).

1961)

: , '

Penn. R. Co

land RR. C

ER ( 5 WAS

NV. fe. lt. Co., 1

Brick Co

TABLE OF AUTHORITIES — Continued

Page

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

O8AP-314, 2008 WL 4368480 (Ohio Ct. App.

SONI ePID ssxvccosncoasbenksanssaecanens Tans picouebasa nea on kecirek 8

Richards v. Consol. Rail Corp., 330 F.3d 428

CUE ER RODE, BD wncccccineksveccecacsest icoxiedsasesiainecanenne aire 15

Rogers v. Mo. Pac. R.R., 352 U.S. 500 (1957) .... passim

Schulz v. Penn. R.R. Co., 350 U.S. 5238 (1956)........... 17

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

PA. WV ee NGS CE BI inks scskisecacenis sxeccdasccsccaveneuae al

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).......... 10

Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599

( ereae Oe Pee 8 oi oeecc ee ee 15, 20, 21

Thibodeaux v. Tex. FE. Transmission Corp., 548

Fite GEL COG Cie: BOTT} vincsicikescacscdvevsceisrsarscctiouscmeess 15

Thomas Jefferson Univ. v. Shalala, 512 U.S.

Ee CRS sans eerie aes aiessadekeuaeaicaaere 21

United States v. Mead Corp., 533 U.S. 218

RNP Piss Goccacihcxcasevisuer eee ee 29

Urie v. Thompson, 337 U.S. 163 (1949) ........0. ce 25

Vance v. Consol. Rail Corp., 652 N.E.2d 776

Le 3. | eee nenerneremnerT Ane RAP ata R io. 22

Wash. v. Klem, 497 F.3d 272 (3d Cir. 2007) ......00.00.... 19

Webb v. Webb, 451 U.S. 493 (1981)... ee. 12

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

CRE Re Be cacesabcacaccecaesucnnscactaseeies toca eee ee 14

Wolfe v. N.C. 364 U.S. TTT CEG D) ooncciccecscssnsccesseeecesess 12

V1

TABLE OF AUTHORITIES — Continued

Page

STATUTES, RULES AND REGULATIONS

er, oases ok oass acces rae ules passim

ME er ois oan cacaacasiucsccerencsasatane vase Lic eseeiee hae 22

EN RRs ET os cs cavonsayiscicuansdicean th cndinirocaeseees 23

45 U.S.C: OGD... cvccceces.. eka PIL eLAATeLaESHEd Ase eeeeTea tae 23

NON Amt EY Sica vacccca Vnavasccecesuciauisuesusvevavees sete uavern 15

ee a Oe sone vin pa oh ts aseacdocn scan dates bees 1, 3,4

WP es nce ccs cssoakanacevcccssceapstncsanees passim

SI pe I orn au creu cs cree chai nkcemun ee ieck tea vieen ean 3, 12

PRN, is NF eet oadc edness cadens aso vnsanaoty a. 0a

Ohio Rule of Appellate Procedure 16(A\(3)................ 13

PRM SIE TUNIIE NOD ois v cnccce ev ecussassiesdoecasiversasssunsines 28

OTHER AUTHORITIES

ee re Fe sco iathe veoancagnics deacecoueeaneses 22

RO Re ee Li Be bs 2:

H.R. Rep. No. 60-1386 (1908)....... aaa era are eres 23

ey Re ge LE |S | 9 Er 23

Oo7A Am. Jur. 2d Negligence § 485 .......... Pane a ornare 10

Stephen G. Breyer, Reflections on the Role of

the Appellate Courts: A View from the Su-

preme Court, 8 J. App. Prac. & Process 91

{DRO PCCE rsa PTI NIAT Ge RS HESS CHE Tn Fee ex DERI PE 19

TABLE OF AUTHORITIES — Continued

Page

W. Page Keeton, et al., Prosser and Keeton on

UE re Ne ED ohn cs ccndneicne chaccoccecssnsccecoss: 9, 10

R. Stern, EK. Gressman, S. Shapiro and K.

Geller, Supreme Court Practice (8th ed. 2002) ......19

STATEMENT OF THE CASE

Francis Battaglia retired from his long career as

a brakeman, conductor, and locomotive engineer for

Consolidated Rail Corporation (Conrail) in 2007, after

he was diagnosed with adult-onset-asthma and

advised by his doctor to avoid further exposure to

diesel exhaust.’ Mr. Battaglia brought an action in

the Lucas County (Ohio) Court of Common Pleas

against Conrail for his adult-onset-asthma under the

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

(FELA), and the Federal Locomotive Inspection Act,

49 U.S.C. § 20701 (FLIA).

Mr. Battaglia sought summary judgment on his

FLIA and FELA claims, relying on sworn deposition

and affidavit testimony establishing that Conrail’s

defective locomotives exposed him to diese! exhaust

from virtually the first day he began working for

Conrail and that the daily exposure ultimately re-

sulted in adult-onset-asthma. For example, his own

testimony described the “blue smoke” and “black

diesel oil” entering the locomotive cabs before ever

entering the exhaust stacks, through holes in the

floor, cracks in the doors, the windows, and the elec-

trical compartment of virtually the entire fleet. Pet.

App. 30a; Pl.’s Summary Judgment Mtn, Count II,

Exhibit A at 73. Another witness, a fellow engineer,

‘ Conrail’s states that Mr. Battagha was a smoker for 13

years (Pet 8), but neglects to mention that he stopped smoking

some 31 years before contracting adult-onset-asthma Pet App.

8a J 30.

bo

testified that “the locomotives which we were re-

quired to operate were rarely maintained properly

causing toxic diesel exhaust fumes to come in the cab

through the firewalls; electrical cabinets; and even

cracks in the floor,” and that seals on the doors and

windows of locomotive cabs almost always leaked,

allowing diesel exhaust to enter the cabs. Pet. App.

30a.

In addition to diesel exhaust coming through the

walls and floor, the evidence showed that some diesel

exhaust would enter the locomotive cab because the

exhaust stacks were not of “sufficient height ... to

prevent entry of products of combustion into the cab

...” 49 C.E.R. § 229.43. Much of the diesel exhaust

never even made it to the locomotive stacks.’ As the

Ohio Court of Appeals observed: “Appellant [Conrail]

has never suggested that the conditions experienced

by appellee [Battaglia] were in any way the result of

unusual operating conditions, nor has it presented

evidence contradicting |Mr. Battaglia’s] assertion of

exposure.” Pet. App. lla ¥ 39.

* Other railroaders testified at tria) that, over the course of

their railroad careers, they had operated locomotives from

virtually every major carrier as they would come into the Detroit

yards and that Conrail’s locomotive fleet was in inferior condi-

tion, specifically stating that Conrail’s locomotives in the

Detroit, Michigan area rail yards where Mr. Battagha spent the

majority of his career were 1n “terrible condition,” thus exposing

them and other railroad workers daily to toxic diesel exhaust

fumes. Tr. of 4/23/2009 Hearing at 7-8.

3

On the issue of causation, Mr. Battaglia proffered

the sworn expert testimony of his physician, Michael

Kelly, M.D., who is board-certified in Internal Medi-

cine, as well as in Occupational Medicine. Dr. Kelly

stated that, in his opinion, to a reasonable degree of

medical certainty, Mr. Battaglia’s “ongoing and regu-

lar exposure to diesel exhaust, as a result of his work

on the railroad, was a significant factor in the devel-

opment of his asthma.” Pet. App. 32a. In violation of

Ohio Civil Rule 56, to rebut Mr. Battaglia’s medical

expert, Conrail submitted only unsworn medical

reports. Even after Mr. Battaglia’s counsel brought

this error to Conrail’s attention, Conrail did not

submit sworn affidavits, as required by Ohio Civil

Rule 56(e). The only proper medical evidence before

the trial court was that of Mr. Battaglia’s physician,

who determined that diesel exposure was a “signifi-

cant factor” in causing Mr. Battaglia’s adult-onset-

asthma. Pet. App. 32a.

Accordingly, the trial court entered summary

judgment for Mr. Battaglia, concluding that pro-

longed exposure to diesel exhaust fumes in the cab of

Conrail’s locomotives established Conrail’s violation

of the FLIA, as well as of 49 C.F.R. § 229.43, which in

turn constituted negligence per se under the FELA.

Pet. App. 36a-37a. The court also found that. the

unrebutted evidence showed that this exposure

4

contributed to Mr. Battaglia’s adult-onset-asthma.”

Pet. App. 32a-33a.

Conrail filed a motion for reconsideration, argu-

ing that the sworn testimony proffered by Mr.

Battaglia was not sufficient to establish that Mr.

Battaglia came into contact with an amount of diesel

exhaust “that could be quantified” as an “exposure”

for purposes of 49 C.F.R. § 229.43, even though the

plain language of the regulation does not contain any

exposure or other quantitative threshold. Conrail also

argued that the court should have considered Con-

rail’s unauthenticated medical expert reports. The

court denied Conrail’s motion for reconsideration. The

case proceeded to a jury trial on Mr. Battaglia’s

damages. At the conclusion of trial, the jury returned

a verdict of $2.6 million.

Conrail did not challenge the causation standard

applicable in FLIA or FELA cases in its motion for

reconsideration or in any of its post-trial motions.

Similarly, Conrail’s appeal to the Ohio Sixth District

Court of Appeals focused on whether the trial court

erroneously refused to consider unsworn medical

testimony in opposition to Mr. Battaglia’s summary

judgment motion. As the Ohio appellate court found,

the trial court properly excluded Conrail’s documents

from consideration because “[djocuments submitted

in opposition to a motion for summary judgment

* The FELA standard of causation applies to FLIA claims.

See, e.g., Lilly v. Grand Trunk W R Co., 317 U.S. 481 (1945).

which are not sworn, certified, or authenticated by

affidavit have no evidentiary value [as set forth in

Ohio Civil Rule 56(e)] and may not be considered by

the court in deciding whether a genuine issue of

material fact remains for trial.” Pet. App. lla { 42.

The appellate court also noted that, “since [Conrail]

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” Pet. App. 12a { 43.

Although this court issued Norfolk Southern

Railway Co. v. Sorrell, 549 U.S. 158 (2007), well

before the trial court decided the summary judgment

motions, Conrail did not cite the case until its memo-

randum seeking discretionary review in the Supreme

Court of Ohio (the Ohio equivalent to a petition for a

writ of certiorari).* Thus, the Ohio courts had no real

opportunity (let alone any reason, because this case

‘ After issuing the first summary judgment, the parties

submitted briefings on the issue of causation in the context of

contributory negligence, because Conrail was seeking permis-

sion to re-open discovery and further question Mr. Battaglia’s

treating and expert physicians. Conrail mentioned Sorrell in its

supplemental briefing, but the trial court did not address the

issue because, again, the lhnchpin was the lack of rebuttal

evidence presented at the summary judgment stage and Con-

rail’s failure to follow the Ohio civil rules. In this regard, shortly

after the parties submitted the briefings, the tnal court entered

an order specifically stating that the court’s summary judgments

“eliminat[ed] the issue of causation.” Trial Court Order Apr. 10,

2008.

6

was decided based on unrebutted causation evidence)

to consider Conrail’s new challenge to the prevailing

interpretation of FELA causation.

S

REASONS FOR DENYING WRIT

I. THIS CASE PRESENTS AN INADEQUATE

VEHICLE TO ADDRESS ANY OSTENSI-

BLE CONFLICT ABOUT INTERPRETA-

TION OF THE CAUSATION STANDARD

IN FELA CASES.

Conrail asks this Court to grant certiorari to

resolve an ostensible conflict among state and federal

courts regarding the standard for proving causation

in a FELA negligence action. Specifically, Conrail

contends that a handful of state supreme courts insist

that a FELA plaintiff prove traditional, common-law

proximate causation, Pet. 18, 24-28, while federal

courts of appeals, citing Rogers v. Mo. Pac. R.R., 352

U.S. 500 (1957), require a plaintiff to prove only that

the defendant’s negligence was the “slightest” cause

of the plaintiff’s injury. Pet. 18-22, 26-28. Conrail has

exaggerated a supposed conflict, and, in any event,

this case presents an inadequate vehicle to address it,

as set forth below.

7

A. Based on the evidence, the trial court’s

summary judgment withstands any in-

terpretation or standard of causation

proposed by Conrail.

This case is not about fine-point distinctions

between “in whole or in part” and “any part, even the

slightest,” or even so-called “proximate cause.” As set

forth above, Mr. Battaglia moved for summary judg-

ment, and as part of his motion, he presented Dr.

Keily’s sworn affidavit stating his opinion to a “rea-

sonable degree of medical certainty” that Mr.

Battaglia’s ongoing and regular exposure to diesel

exhaust as a result of working on Conrail’s locomo-

tives was a “significant factor” in his development of

adult-onset-asthma. In response to Mr. Battaglia’s

motion, Conrail disregarded Ohio Civil Rule 56(e),

which required Conrail to respond with equally sworn

medical testimony to survive summary judgment, and

submitted unsworn medical testimony. Although

advised that it was not in compliance with the Ohio

rule, Conrail declined the opportunity to correct its

mistake.

Summary judgment is not a dry run; it is the

“put up or shut up” moment in a lawsuit, when a

party must show what evidence it has that would

convince a trier of fact to accept its version of the

events. Cox v. Ky. Dept. of Transp., 53 F.3d 146, 149

(6th Cir. 1995) (internal citations omitted). If the

moving party satisfies its burden (there is no dispute

that Mr. Battaglia satisfied such burden), then the

burden of going forward shifts to the nonmoving

8

party to produce evidence that results in a conflict of

material fact. Here, to defeat summary judgment,

Conrail could not rest on mere allegations or denials,

but needed to set forth specific facts showing that

there was a genuine issue for trial. Ohio Civ. R. 56(e).

In this regard, documentary evidence presented on

summary judgment must be properly authenticated;

any report or affidavit presented at the summary

judgment stage must be sworn. See, e.g., Citizens

Ins. Co. v. Burkes, 381 N.E.2d 963, 967-68 (Ohio App.

Ct. 1978); Green v. B.F. Goodrich Co., 619 N.E.2d 497,

500 (Ohio App. Ct. 1933). If the nonmoving party

cannot muster sufficient evidence to make out its

claim, a trial would be useless and the moving party

is entitled to summary judgment as a matter of law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986).

Here, there were no disputed or rebutted facts —

the only admissible evidence before the trial court

was Dr. Kelly’s testimony that, to a reasonable de-

gree of medical certainty, the diesel exhaust was a

“significant factor” in Mr. Battaglia’s contracting

* Conrail cites to an Ohio case, Rhodes v Firestone Tire &

Rubber Co , No O8AP-314, 2008 WL 4368480, at *3-4 (Ohio Ct.

App. Sept 25, 2008), for the proposition that an expert’s state-

ment that an alleged defect was a “significant factor” in causing

a plaintiff’s injury has been held to be inadequate to satisfy the

requirement of traditional proximate causation. Pet. 24, n.11 In

Rhodes, however, the court based its ruling on the fact that the

expert specifically declined to conclude “to a reasonable degree

of engineering probability” that the defect was a probable cause

(Continued on following page)

4

adult-onset-asthma. No admissible evidence before

the court suggested any other causes. And none of the

cases on which Conrail relies holds that evidence

establishing that a railroad’s negligence was a “signif-

icant factor” in causing injury is insufficient to estab-

lish the necessary degree of causation under the

FELA.

Any difference between “even the slightest”

causation and so-called “proximate cause” was never

litigated in the trial court, nor made an issue of

record at trial. In this regard, although “proximate

cause” is not a concept susceptible of precise defini-

tion,’ the great majority of courts hold that a negli-

gent act is the proximate cause of an injury when

the injury is a natural and probable consequence,

which in light of the circumstances, should have been

of the injury. In contrast, here, the expert testimony was that to

a reasonable degree of medical certainty the exposure was a

“sigmificant factor” in Mr Battaglia’s contracting adult-onset

asthma

° W Page Keeton, et al , Prosser and Keeton on Torts § 41, at

263 (5th ed 1984) (regarding the law of proximate cause,

“(t]here is perhaps nothing 1n the entire field of law which has

called forth more disagreement, or upon which the opinions are

in such a welter of confusion”); accord, e g., Blue Shield of Va_ v.

McCready, 457 U S. 465, 478 n 13 (1982) (discussing elusiveness

of test of proximate cause); Palsgraf v. Long Island R.R. Co., 162

NE 99, 103 (N.Y. 1928) (Andrews, <J , dissenting) (“What is a

cause in a legal sense, still more what is a proximate cause,

depends 1n each case upon many considerations. . What we do

mean by the word ‘proximate’ is, that because of conventence, of

public policy, of a rough sense of justice, the law arbitrarily

declines to trace a senes of events beyond a certain point.”)

10

foreseen or anticipated. See, e.g., 57A Am. Jur. 2d

Negligence § 485; Sosa v. Alvarez-Machain, 542 U.S.

692, 705 (2004).' Conrail never claimed that Dr.

Kelly’s sworn testimony, which was expressed to a

reasonable medical certainty, did not satisfy this

standard. And, as set forth above, no rebuttal evi-

dence was offered showing that some other cause

would have produced the injury independently of Mr.

Battaglia’s pervasive and prolonged exposure to

diesel exhaust while working on Conrail locomotives,

or that adult-onset-asthma or other injury was some-

how not foreseeable as a result of such exposure.

The only proper evidence before the trial court

was Dr. Kelly’s sworn testimony stating to a reasona-

ble degree of medical certainty that the exposure was

a “significant factor” in Mr. Battaglia’s contracting

adult-onset-asthma. Pet. App. 32a. A “significant

factor” is far more than the “slightest” or even a cause

“in part” (which is the precise language of the FELA);

even under the so-called proximate cause standard

now proposed by Conrail, the outcome would have

clearly been the same here. The evidence of toxic

diesel exposure was astounding. Mr. Battaglia de-

scribed in sworn testimony the exposure that he

experienced from day one not as casual exhaust, but

And, a given proximate cause need not be, and frequently

is not, the exclusive proximate cause of harm. Accord, eg, W.

Page Keeton, et al., Prosser and Keeton on Torts § 41, at 266-68

(Sth ed. 1984) (an injury may have more than one proximate

cause).

1]

as “blue smoke” and “black diesel oil” entering Con

rail locomotive cabs through holes in the floors,

cracks in the doors, in the seals, through the win-

dows, and through the electrical compartment of

virtually the entire fleet. Pet. App. 30a. Additionally,

a fellow engineer averred in a sworn affidavit that

“the locomotives which we were required to operate

were rarely maintained properly causing toxic diesel

exhaust fumes to come into the cab through the

firewalls; electrical cabinets; and even cracks in the

floor.” Pet. App. 30a.

Even assuming interpretation of the causation

standard were otherwise worthy of certiorari, the

Court should await a case where the existence of

proximate causation actually was disputed at sum-

mary judgment — that is, where the railroad actually

presented competent rebuttal evidence — or at trial,

and where the outcome of such dispute actually or

potentially affects the outcome of the case.

B. Conrail did not press its challenge to

Rogers and its progeny.

This Court has a long-standing prudential policy

against granting certiorari to review issues that were

not the basis for the decision below. This Court has

said time and time again that it “ordinarily ‘doles] noi

decide 1n the first instance issues not decided below.’”

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103,

109 (2001) (quoting NCAA v. Smith, 525 U.S. 459,

470 (1990)). This Court has deemed it “unseemly” to

12

a

disturb the finality of state judgments on a ground

that the state trial court did not have occasion to

consider. See, e.g., Adams v. Robertson, 520 U.S. 83,

90 (1997); Webb v. Webb, 451 U.S. 493, 500 (1981).*

This case falls squarely within these precedents.

Given the lack of rebuttal evidence, the Ohio appel-

late court had no reason to consider Conrail’s current

argument that FELA requires proof of a type of

proximate cause to establish a railroad’s negligence.

Although Mr. Battaglia quoted the “in the slightest”

standard in his summary judgment pleadings, neci-

ther Conrail’s opposition brief, nor even Conrail’s

reconsideration brief, disputed its application or even

mentioned proximate cause. Instead, Conrail’s argu-

ment focused on the trial court’s decision to disregard

unsworn medical testimony. Nor did Conrail raise the

issue in its post-trial motions or in its initial brief to

the state appellate court, from which it now seeks

certiorar.

“ And, this Court has held that reviewing a state-court

judgment that rests on adequate and independent state grounds

is not appropriate, where, as here, the state ground is the

petitioner's failure to comply with state procedural rules (here,

the rule precluding reliance on unauthenticated documents at

the summary judgment stage under Ohio Civil Rule 56). See,

eg., Wolfe v NC., 364 U.S. 177, 196 (1960); see also Herb v.

Pitcairn, 324 U.S. 117, 125-26 (1945); Penn. R Co. v. Ill. Brick

Co., 297 US. 447, 463 (1936) The reason is simple: “if the same

judgment would be rendered by the state court after [this Court]

corrected its view of federal laws, [this Court's} review could

amount to nothing more than an advisory opinion.” Herb, 324

U.S at 126.

13

On appeal of the jury verdict, Conrail did not

challenge the causation standard until its reply brief,

and even then, it did not mention Justice Souter’s

concurrence in Sorrell (the focal point of its petition

for certiorari). Rather, in the Ohio appellate court,

Conrail focused on the state-law issues involving

exclusion of the unsworn affidavits.” The appellate

court concluded that the trial court properly excluded

the unsworn testimony from consideration of the

summary judgment, especially “since [Conrail] 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.” Pet. App. 12a

q] 43.

Conrail failed to press its current claim until it

sought review by the Ohio Supreme Court — and for

good reason, because the issue is without moment here.

As explained above, the deciding factor on causation

in this case was the lack of rebuttal evidence on

* Ohio Rule of Appellate Procedure 16(A\3) requires

appellants to submit a statement of the assignments of error for

review. Of the nine assignments of error asserted by Conrail to

the Ohio appellate court, not one challenges the standard of

causation. Rather, Conrail’s challenge to the trial court’s sum-

mary judgment was that there was a “question of material fact”

based on the “unsworn contradictory opinions of its medical

experts ”" Pet App. lla 9 41. The appellate court addressed the

procedural issue and found that the trial court properly excluded

Conrail’s unsworn documents from consideration. Pet. App. lla-

l2a 7] 42-43. The appellate court did not (and had no reason to)

address the issue now raised by Conrail about the interpretation

or standard of causation.

14

summary judgment resulting from Conrail’s failure to

comply with Ohio Civil Rule 56(e).

Il. THERE IS NO DEEP OR PERSISTENT

CONFLICT ABOUT ROGERS’ INTERPRE-

TATION OF THE FELA.

A. Every federal court of appeals ad-

dressing the issue has followed Rogers.

Conrail claims a “deep and persistent” conflict

over the interpretation of the FELA causation stand-

ard. Conrail argues that while some courts insist on

proof of “proximate cause,” others hold that FELA

abrogates the common-law requirement of proximate

causation. Pet. 18. This is a false dichotomy.

The federal courts of appeals all, without excep-

tion, read Rogers as making, in effect, the same broad

statement that this Court made in Consolidated Rail

Corp. v. Gottshall, 512 U.S. 532, 543 (1994); that is,

“a relaxed standard of causation apples under the

FELA”” or as modifying common-law proximate

"© Moody vu Me. Cent. R.R. Co., 823 F.2d 693, 695 (1st Cir

1987) (“We recognize the considerably relaxed standard of proof

in FELA cases”), Williams v. Long Island R.R. Co., 196 F.3d 402,

406 (2d Cir. 1999) (“a relaxed standard applies in FELA cases”);

Hines v Consol. Rau Corp., 926 F.2d 262, 267 (3rd Cir. 1991)

(“In Rogers, the Court held that ‘the test of a [FELA] jury case 1s

simply whether the proofs justify with reason the conclusion

that employer negligence played any part, even the slightest, in

producing the injury.’”); Brown v. Bali & Ohio R.R Co., 805

F 2d 1133, 1137 (4th Cir. 1986) (quoting Rogers as authority, for

this most “lenient standard of proof” with respect to causation

(Continued on following page)

15

cause. See, e.g., Nivens v. St. Louis Sw. Ry. Co., 425

F.2d 114, 118 (5th Cir. 1970) (quoting Rogers and

holding that “the common-law proximate cause

standard is modified, and the employee has a less

demanding burden of proving causal relationship”);

Nicholson v. Erie R.R. Co., 253 F.2d 939, 940 (2d Cir.

1958) (quoting Rogers and stating that “[i]t is true

that, to impose liability on the defendant, the negli-

gence need not be the proximate cause of the injury”

in an FELA action), Gautreaux v. Scurlock Marine, Inc , 107 F 3d

331, 335 (5th Cir 1997) (unanimous, en banc) (“Supreme Court

used the term ‘slightest’ [in Rogers] to describe the reduced

standard of causation between the employer's negligence and

the employee’s injury in FELA [] cases”); Richards v. Consol.

Rau Corp., 330 F.3d 428, 434 (6th Cir 2003) (“The Rogers Court

adopted this relaxed [causation] standard”); Harbin v. Burling-

ton N. R.R. Co., 921 F2d 129, 131 (7th Cir 1990) (“It is well

established that the quantum of evidence required to establish

liability in an FELA case is much less than in an ordinary

negligence action”); Nordgren v. Burlington N. R.R. Co., 101 F 3d

1246 (8th Cir. 1996) (relaxed standard for causation); Mullahon

v. Union Pac. R.R., 64 F.3d 1358, 1363 (9th Cir. 1995) (“[t]he

standard for receiving a jury trial is less stringent in FELA

cases than in common law tort cases”); Summers v. Mo. Pac.

R.R. System, 132 F.3d 599, 606 (10th Cir. 1997) (quoting Rogers

at length); Thibodeaux v. Tex. E. Transmission Corp., 548 F.2d

581, 587 n.12 (5th Cir. 1977) (pre-split, and thus binding 1n the

llth Cir) (“Under the Jones Act, 46 U.S.C § 688, the test for

liability is whether ‘employer negligence played any part, even

the slightest, in producing the injury’”) (quoting Rogers); Brooks

v. Wash. Terminal Co., 593 F2d 1285, 1288 (D.C. Cir. 1979)

(“The test whether an FE L.A case should be submitted to the

jury ‘is simply whether the proofs justify with reason the

conclusion that employer negligence slayed any part, even the

slightest, in producing the injury ov death for which damages

are sought.’”) (quoting Rogers)

16

because the FELA “has its own rule of causation”).

And Conrail fails to identify a single post-Rogers

decision from this Court even intimating that Rogers

was incorrectly decided.

B. Rogers is consistent with the FELA de-

cisions that came before it.

Conrail also seeks to evade Rogers by portraying

this Court’s pre-Rogers FELA jurisprudence as apply-

ing traditional notions of proximate causation. The

fact that pre-Rogers decisions use the term “proxi-

mate cause” in FELA cases provides no insight into

the meaning of that term, because not until Rogers

was this Court given the opportunity to address the

appropriate causation standard for railroad negli-

gence. In all of the earlier decisions, the Court’s use of

that term was not essential to its decision. Moreover,

when the Court referenced proximate cause in its pre-

Rogers decisions, it did not give the term the meaning

that Conrail attributes to it.

| For example, Rogers cites Coray v. Southern

Pacific Co., 335 U.S. 520 (1949), which suggested an

FELA plaintiff must show that the railroad’s negli-

gence was the proximate cause of his injuries, for the

proposition that railroad negligence need only have

“played any part, even the slightest, in producing the

injury or death for which damages are sought.” Jd. at

523; Rogers, 352 U.S. at 506 & n.11. In Coray, this

Court reversed a judgment in favor of a railroad,

despite the tenuous causal connection between the

17

railroad’s negligence and the employee’s injury, a

connection that the state supreme court described as

merely philosophical and not substantial. Coray, 335

U.S. at 523. This Court explained that the FELA

“declares that railroads shall be responsible for their

employees’ deaths ‘resulting in whole or in part’ from”

the railroads’ negligence, and therefore it “has com-

manded that if a breach of [its duty of care] contrib-

utes in part to an employee’s death, the railroad must

pay damages.” Jd. at 524. This Court cited Coray in

Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S.

430, 434-35 (1949), for the proposition that an FELA

plaintiff may prevail by presenting evidence that the

railroad’s negligence was a “contributory proximate

cause.” Jd. Likewise, in Schulz v. Penn. R.R. Co., 350

U.S. 523, 526 (1956), a Jones Act case,” this Court

reversed a directed verdict in favor of the employer,

noting that “[fJact finding does not require mathe-

matical certainty” and liability may be imposed if the

injury or death “resulted ‘in whole or in part’ from

[the employer’s] negligence.” Jd.

" This, of course, directly contradicts Conrail’s suggestion

that railroad negligence must be “the” proximate cause, as

opposed to “a” proximate cause. Coray and Carter are irreconcl-

able with Conrail’s theory that common law principles govern

FELA causation

" Cases brought under the Jones Act, the federal law

governing lability for workplace injuries to seamen, use the

same standards and judicial interpretations that apply to the

FELA. Am. Dredging Co v Miller, 510 U.S. 443, 455-56 (1994)

18

Years before Rogers, courts concluded that this

Court’s use of the term “proximate cause” in the early

FELA cases deviated from the traditional definition of

the term. As that Seventh Circuit explained:

Perhaps the reconciliation of the earlier ac-

cepted, sometimes called the old-fashioned

idea, of ‘proximate cause’ as the direct or effi-

cient cause of the accident .. . in cases where

[the FELA] applies, and the conception of

proximate cause which now obtains, is to be

found in the enlarging phrase of the statute.

*** Under the old concept of proximate

cause, that cause must have been direct, the

complete, the responsible, the efficient cause

of the injury. Contributing and remotely re-

lated causes were not sufficient. Now, if the

negligence of the railroad has ‘causal rela-

tion, — if the injury or death resulted ‘in part’

from defendants’ negligence, there is liability.

The words ‘in part’ have enlarged the tield or

scope of proximate causes in these railroad

injury cases.

Eglsaer v. Scandrett, 151 F.2d 562, 565-66 (7th Cir.

1945). Indeed, this Court, as well as lower courts,

already recognized that the traditional understanding

of proximate causation was inconsistent with the

FELA’s negligence scheme long before Rogers."

'* For example, the Second Circuit found early on that

proximate causation “in cases where the liability depends upon a

failure of foresight” by the railroad should be further refined,

such that a railroad would be liable where “the chain of events

(Continued on following page)

19

C. Any difference found in a handful of

state supreme courts between the

FELA language (“in whole or in part”)

and the Rogers interpretative lan-

guage (“even the slightest”) is mere

semantic discrepancy.

At most, the variant applications of Rogers by a

handful of state supreme courts are attributable to

“different verbal formulations of the same underlying

legal rule.” Stephen G. Breyer, Reflections on the Role

of the Appellate Courts: A View from the Supreme

Court, 8 J. App. Prac. & Process 91, 96 (2006). These

are not “actual divides among the lower courts” but

merely “minor linguistic discrepancies” that “are not

outcome determinative.” /d.; accord R. Stern, E.

Gressman, S. Shapiro and K. Geller, Supreme Court

Practice 225 (8th ed. 2002) (to justify certiorari,

“there must be a real or ‘intolerable’ conflict on the

same matter of law or fact, not merely an incon-

sistency in dicta or in the general principles uti-

lized”). In this regard, the “semantic difference”

between the handful of state supreme court opinions

that Conrail cites to in its Petition has not led to

conflicting results; for the most part, these are merely

“minor variations” that stem from the state supreme

courts’ “reword|ing]” of this Court’s holdings. Wash. v.

Klem, 497 F.3d 272, 279 (3d Cir. 2007).

which resulted in plaintiff’s injuries were not . beyond

calculable foresight.” Cusson v. Can. Pac. Ry. Co , 115 F.2d 430,

432 (2d Cir 1940) (Hand, J.)

20

Two state court decisions cited by Conrail appear

to read Rogers more narrowly than the federal courts

of appeals. See, e.g., Marazzato v. Burlington N.R.

Co., 817 P.2d 672, 674 (Mont. 1991) (“Rogers case was

addressing the issues of multiple causes and contrib-

utory negligence after it had been established that

the employer was negligent”); Raab v. Utah Ry. Co.,

221 P3d 219, 228-30 (Utah 2009) (rejecting the

argument that Rogers requires only “but for” causa-

tion; “[wJhile 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”). The bottom line in Raab, so far as it

concerns Rogers, is that Rogers did not do away with

all causation except “but for” causation. Raab, 221

P.3d at 228-30. Even the Raab court, while rejecting

mere “but for” causation, applied what can only be

described as a relaxed standard of legal causation. In

that case, a defective brake forced replacement of the

lead locomotive, which in turn required plaintiff to

enter a trailing locomotive to set the controls, where

he hit his head on a low-hanging air conditioning

unit. The court held that the jury was entitled to find

that the defective brake “was a proximate cause” of

plaintiff’s injury. 221 P.3d at 222, 231. For the sake of

clarity, the Raab court said it was rejecting the notion

that only “but for” causation is required, not the

relaxed causation standard.” In short, there is no

‘The Raab court contrasted its conclusion on this point

with that of the Tenth Circuit in Summers v. Mo. Pac. R.R. Sys.,

(Continued on following page)

21

conflict among the lower courts in practice: Conrail

does not cite a single case in which the “relaxed”

standard was rejected in favor of what Conrail calls

traditional “proximate cause.””” “

132 F 3d 599, 606 (10th Cir. 1997). Raab, 221 P3d at 228-29 J 32

& n.35. But what the Summers court found “definitely aban

doned” in Rogers was the practice of “analyz[ing] liability under

the FELA in terms of proximate causation” Jd (emphasis

supplied). Neither Summers, nor any other case so far as we can

tell, suggests that Rogers abandoned the concept that some “but

for” causes are, for policy reasons, too remote to support liability

Indeed, several of the cases cited by Conrail cite Rogers

as the standard by which “proximate cause” is measured.

Gardner v. CSX Transp., Inc., 498 S.E 2d 473 (W Va. 1997),

expressly declared that Rogers “established” “[t)he causation

standard in FELA cases,” and went on to quote Rogers “even the

slightest” language. Jd. at 482. The same ts true of Snipes v Chi.

Cent. & Pac. RR Co, 484 N.W.2d 162, 164-65 (lowa 1992),

which quotes Rogers’ “even the slightest” language in order to

show “(t]he liberality with which the Supreme Court has applied

this test,” ze , of FELA negligence and causation. Much the same

is true ef Chapman v. Unton Pac. R.R., 467 N.W.2d 388, 395

(Neb. 1991) (“An action brought under the Federal Employers’

Liability Act must be submitted to a jury if the jury could

reasonably find that “employer negligence played any part, even

the slightest, in producing the injury ... for which damages are

sought.”) (quoting Rogers); accord Crafton v. Union Pac. R. Co ,

585 N.W.2d 115, 123 (Neb. 1998) (“The quantum of evidence

required to establish liability in a FELA action is lower than

that required in an ordinary negligence action, The common-law

standard of proximate cause 1s not applicable to FELA” (cita-

tions omitted)).

* Conrail’s citation to Reed v Pennsylvania R. Co, 171

N E.2d 718 (Ohio 1961), is particularly misleading. First, the

proposition advanced by the railroad is contained in a footnote

in Reed and is dictum. Second, and more importantly, the Ohio

(Continued on following page)

22

Il. ON THE MERITS, THE STANDARD FOR

CAUSATION UNDER FELA IS RELAXED.

In response to the horrific number of injuries

that were occurring on a regular basis in the railroad

industry, Congress, in 1906, enacted a precursor to

the FELA. 40 Cong. Rec. 4607 (1906). In enacting the

FELA, Congress implemented a system that moved

railroad-worker protection away from the traditional

common law and closer to the workers’ compensation

model. See 45 U.S.C. §§ 51, 53. Significant features of

Congress’ proposed new Act included its creation of

liability for any injury “resulting in whole or in part”

from the employer’s negligence and abrogating the

defense of pure contributory negligence, which previ-

ously barred a plaintiff’s recovery if his negligence

played any role in his injuries. See 45 U.S.C. §§ 51,

53. These features of the FELA reflected Congress’

goal to shift financial responsibility for injured rail-

road workers from those least able to carry that

burden; from the worker and their families, to the

railroads. See Norfolk & W. Ry. Co. v. Ayers, 538 U.S.

135, 161 (2003); Consol. Rail Corp. v. Gottshall, 512

U.S. 532, 542 (1994).

Congress rejected numerous attempts to intro-

duce features to the FELA that would limit this

Supreme Court supplanted Reed in Vance v. Consolidated Rail

Corp , 652 N.E 2d 776, 782 (Ohio 1995) (‘we are bound to follow

the unique body of federal decisional law interpreting the

FELA”) In almost 40 years, no other court has cited the Reed

decision for the proposition advanced by Conrail in its Petition.

yA

remedial function. See, e.g., H.R. Rep. No. 60-1386, at

79, 80 and 92 (1908). Consistent with these goals,

Congress amended the FELA in 1939 to ensure the

financial protection of injured railroad workers by

expanding the class of covered employees, eliminating

the defense of assumption of the risk and penalizing

intimidation of workers who provide information

about accidents and other incidents. See 45 U.S.C.

§§ 51, 54, 60. Congress adopted the 1939 amend-

ments in order to ensure that the goal of expanding

compensation for workers was not thwarted by judi-

cial introduction of common law concepts into the

statute. See Rogers, 352 U.S. at 508-09. At the same

time, and for the same reason, Congress expressly

declined a revision to the FELA that would have

equated the “in whole or in part” language of section

1 with proximate cause."

The 1939 amendments show Congressional

intent to clarify that the FELA departs from the

" Compare 42 Cong. Ree 10,710 (1939) (proposed amend-

ment in 1939. “In any action brought against any common

carrier . such employee shall not be held to have the nsks of

his employment in any case where ... the neghgence of such

common carrier, its officers, agents, or employees, proximately

contributed to the injury or death of such employees.”) (emphasis

added) and H.R. Rep No 75-2153, at 1 (1938) (similar proposed

amendment in 1938) with 45 US.C. § 54 (“In any action brought

against any common carmer.. such employee shall not be held

to have assumed the risks of his employment in any case where

such injury or death resulted in whole or in part from the

negligence of any of the officers, agents, or employees of such

carrier. .”) (emphasis added).

24

common law and undermine reliance on_ pre-1939

FELA decisions that ostensibly adopt a common law

proximate cause approach. And, in the wake of Rogers

and federal circuit law broadly interpreting Rogers,

Congress has not taken any action to amend the “in

whole or in part” language. As the Seventh Circuit

Court of Appeals recently noted:

We will not assume that Congress is una-

ware of the judicial gloss that the |FELA|]

has received. If the Act as it has been inter-

preted and applied does not correctly reflect

what was intended by the legislative branch

then the change must be made there. The

duty of this court is to follow what is now

well-established authority.

Heater v. Chesapeake & Ohio Ry. Co., 497 F.2d 1248,

1246 (7th Cir. 1974).

To interpret the FELA as requiring strict adher-

ence to traditional proximate cause would be incon-

sistent with the “humanitarian purposes” at the

FELA’s core, as it would push railroad workers closer

to the traditional common law scheme that Congress

was seeking to avoid. See Gottshall, 512 U.S. at 542-

43. In the intervening decades, this Court has con-

sistently recognized that Congress’ avowedly benefi-

cial purpose in enacting the FELA requires a policy

of liberal interpretation so as to accomplish that

bo

4

purpose. See, e.g., Rogers, 352 U.S. at 508-510;" Urie

v. Thompson, 337 U.S. 163, 180 (1949);" see also

Gottshall, 512 U.S. at 543.

“ Conrail also argues that Rogers speaks only to issues of

multiple causation Although Rogers certainly addressed the role

of plaintiff's contributory negligence, it did so only in the

broader context of what evidence was necessary to present a

jury question on whether a defendant’s negligence caused

plaintiff’s injury Any suggestion that only comparative negh

gence was at issue in Hogers is, quite simply, incorrect

™ Conrail attempts to find in Urie v. Thompson, 337 U.S.

163 (1949), a hard and fast rule that the FELA adopted then

existing common law except where otherwise stated (Pet. at 26

n.13); but the Urie Court. looked, not merely to the common law,

but also to another contemporaneously enacted statute, id. at

184, “the spirit the statute (the FELA] contemplated for its

administration and application,” rd. at 186, “the breadth of the

statutory language, the Act’s humanitarian purposes, its accept-

ed standard of liberal construction in order to accomplish those

objects, the absence of anything in the legislative history

indicating a congressional intent to require a restricted interpre-

tation or expressly to exclude such occupational disease, and the

trend of existing authorities dealing with the question... .” Jd.

at 181. This last point is worth additional attention. Citing just

four lower court cases, “|njot all of [which] could be sustained”

under Conrail’s interpretation, the Urie Court wrote’ “We would

be most hesitant to adopt a construction of ‘injury’ as used in

this Act which would overrule the decisions last cited or serious-

ly impair their authority.” Urie, 337 US. at 186.

26

IV. THERE IS NO REASON TO GRANT THE

PETITION FOR CERTIORARI TO CON-

SIDER THE OHIO COURT OF APPEAL’S

READING OF 49 C.F.R. § 229.43.

Section 229.43 of the Code of Federal Regula-

tions, Title 49, provides:

Products of combustion shall be released en-

tirely outside the cab and other compart-

ments. Exhaust stacks shall be of sufficient

height. ... to prevent entry of products of

combustion into the cab ... under usual op-

erating conditions.

49 C.F.R. § 229.43 (emphasis added). Conrail argues

that the Ohio appellate court wrongly found that

Conrail violated § 229.43 by permitting infiltration of

diesel exhaust into its locomotives, before the diesel

exhaust ever even reached the exhaust stacks, with-

out regard to whether enough diesel exhaust entered

the locomotive to violate specific exposure levels set

by OSHA. According to Conrail, the regulation is only

violated if OSHA “permissible exposure levels” are

exceeded, and the Ohio courts’ contrary construction

of the regulation conflicts with decisions of this Court

commanding deference to the Federal Railroad Ad-

ministration’s supposed administrative construction

of the regulation. Conrail’s argument is off the mark.

The Ohio appellate court specifically held:

The plain language of the rule is more per-

I D> 5

suasive. Although [Conrail] 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 locomotive cab from exposure

to toxic exhaust emissions during normal op-

erating conditions. It is directed that such

exhaust be released entirely outside the cab

and that the railroad shall vent the exhaust

through stacks of sufficient height or provide

‘other means’ to prevent the exhaust from

entering the cabin in normal operation. We

see no ambiguity here.

Pet. App. 10a 4] 38. The Ohio court did not disregard

Supreme Court precedent on deference to agency

construction of a regulation. Rather, the court fol-

lowed the principle, clearly established by this Court,

that a court may not accept a purported administra-

tive construction of a regulation that conflicts with

the regulation’s unambiguous terms. See Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 513 (1994)

(deference to administrative agency is appropriate

“unless ‘an alternative reading is compelled by the

regulation’s plain language’ ”).

Conrail’s real objection to the Ohio court’s ruling

is not that it conflicts with precedents of this Court;

rather, Conrail’s disagreement is with the lower

court’s reading of this particular regulation, which is

a subject this Court has never spoken to, and thus is

not a subject on which it is possible for there to be a

“conflict” with this Court’s prior rulings. Not only

does Conrail point to no conflict with any of this

28

Court’s rulings, it points to no other appellate

decision in any jurisdiction construing 49 C.F.R.

§ 229.43 in a way that conflicts with that of the Ohio

courts; indeed, it points to no other appellate decisions

interpreting the regulation in any way. Conrail’s

argument is merely that one intermediate state appel-

late court has rendered a reading of a regulation based

on the plain language of the regulation, with which

Conrail disagrees. A claim of mere error of a lower

state court, on an issue apparently never before

litigated at the appellate level does not come close to

meriting review under Supreme Court Rule 10.

In any event, Conrail’s claim that the lower court

erred in construing the plain language of the regula-

tion is not persuasive. Conrail makes virtually no

effort to square its contention that the regulation is

violated only if OSHA's diesel exposure limits are

violated with the unambiguous text of the regulation,

which nowhere mentions the level of exposure and

instead provides clearly: “[p]roducts of combustion

shall be released entirely outside the cab and

other compartments.” 49 C.F.R. § 229.43 (emphasis

added). And even if there were some room for inter-

pretation of the language, the purported administra-

tive construction on which Conrail relies (a report to

Congress) is not one that is entitled to deference.

Accord, e.g., Christensen v. Harris County, 529 US.

29

576 (2000). The Ohio appellate court understood the

“interpretation” of the regulation proffered by Conrail

cannot trump the plain and unambiguous meaning of

the regulation.

Conrail’s concern that application of the plain

language of the regulation would make it “virtually

impossible for railroads to defend” unless the cab of

the locomotive is “airtight” (Pet. 30), is fanciful. A

single intermediate state court ruling is an exceeding-

ly slender basis for Conrail’s predictions of the tre-

mendous difficulties that it sees in application of the

plain language of the regulation. Moreover, Conrail

exaggerates the effect of the ruling by overlooking

that to establish liability, a worker will still need

to establish not only that diesel fumes entered a

” Christensen v Harris County, 529 U.S 576 (2000),

teaches’

Interpretations such as those in opinion letters — like

interpretations contained in policy statements, agency

manuals, and enforcement guidelines, all of which

lack the force of law — do not warrant Chevron

[U.S.A, Inc v. Natural Res Def Council, Inc., 467

US 837 (1984)] — style deference. ... [they] are ‘enti-

tled to respect’... but only to the extent that they are

persuasive, ... which is not the case here * * * {and]

deference [to an agency’s interpretation of its regula-

tion] 1s warranted only when the language of the reg-

ulation 1s ambiguous The regulation in this case,

however, is not ambiguous ...

529 US. at 579; see also United States v. Mead Corp., 533 US

218 (2001)

30

locomotive in violation of the regulation, but also that

exposure to those fumes was a cause of actual, com-

pensable injuries.

And, here, as perhaps has been belabored above,

the unrebutted evidence established that the diesel

exhaust exposure on the Conrail locomotives that Mr.

Battaglia worked was egregious (see supra note 2,

explaining that the Conrail locomotives at the De-

troit, Michigan yard were in particularly bad condi-

tion). Diesel exhaust was coming into the locomotive

cabs from bulk head electrical cabinets and cracks in

the floor and firewalls, and then, as a matter of

course, the exhaust was not being “released entirely

outside the cab and other compartments.” Some

diesel exhaust was not even making it into the

stacks; diesel exhaust was being released directly

into the locomotive cab. Pet. App. 30a. Furthermore,

those fumes that were making it out of the stacks

were being carried back in through the cracks in the

seals around the windows and doors because the

“exhaust stacks (were not) of sufficient height” to

prevent their entry into the cab, in addition to the

seals which were worn out and malfunctioned permit-

ting fumes to come back in. This is much more than

exposure to merely some fumes, and goes well beyond

the locomotive cab merely being not “airtight.” If

there is any reason to go beyond the plain language of

31

section 229.43 in order to avoid potential burden to

the railroads, this is not the case to do so.”

S

* Conrail’s suggestion in footnote 16 that Mr. Battaglia was

required to present “quantitative evidence” is troublesome.

Hardyman v. Norfolk & W. Ry Co., 243 F.3d 255 (6th Cir. 2001),

teaches, in an FELA case involving carpal tunnel syndrome

We further recognize that it makes little sense to re-

quire a plaintiff to establish a dose/response relation-

ship or threshold level in a situation where there has

been no scientific study conducted specifically on rail-

road brakemen and where the dose/response relation-

ship or threshold level will always vary from

individual to individual. Such a requirement essentially

would foreclose plaintiffs from recovering for [an injury]

against negligent employers unless their particular job

has been the subject of a national, epidemiological

study on [that injury).

243 F.3d at 265 Conrail asks this Court to read into a regulation

a quantitative evidence requirement not only that is nowhere in

the regulation itself, but also that cannot be met. There was no

evidence of any national, epidemiological studies relative to

diesel exhaust proffered by Conrail in this case. Neither the FRA

nor OSHA apparently has performed any such studies on

Conrail locomotives. And Conrail has not cited to any testing

that it has ever performed or permitted on any of its locomotive

fleet, much less on its fleet in the Detroit, Michigan area.

32

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

E.J. LEIZERMAN*

MICHAEL JAY LEIZERMAN

RENA M. SAMOLE

E.J. LEIZERMAN &

ASSOCIATES LLC

717 Madison Avenue

Toledo, Ohio 43624

(419) 243-1010

toni@leizerman.com

Counsel for Respondent

August 26, 2010 *Counsel of Record