# Opposition Brief — Consolidated Rail Corp. v. Battaglia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2011
- **Citation:** 564 U.S. 1052

## Text

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, 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2216%3A2. Public record. Not legal advice.