Reply Brief — Consolidated Rail Corp. v. Battaglia

Suprame Court, U.S.

FILED

SEP 7 - 2010

No. 10-75 Lore ICE OF THE CLERK e

e

IN THE

Supreme Court of the United States

CONSOLIDATED RAIL CORPORATION,

Petitioner,

Vv.

FRANCIS BATTAGLIA,

Respondent.

On Petition for a Writ of Certiorari to the Court

of Appeals of Ohio, Sixth Appellate District

REPLY BRIEF IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

DAVID A. DAMICO CARTER G. PHILLIPS*

BURNS WHITE LLC PAUL J. ZIDLICKY

Four Northshore Center CLIFFORD W. BERLOW

106 Isabella Street SIDLEY AUSTIN LLP

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

(412) 995-3000 Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

Counsel for Petitioner

September 7, 2010 * Counsel of Record

[Additional Counsel Listed On Inside Front Cover]

er ce

WILSON-EPES PRINTING CO , 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

Counsel for Petitioner

TABLE OF CONTENTS

TABLE OF AUTHORITIBS .......... , ues 1}

REPLY BRIEF

I. THE COURT SHOULD GRANT REVIEW

TO RESOLVE THE CONFLICT OVER

THE STANDARD FOR CAUSATION

[l. REVIEW SHOULD BE GRANTED BE

CAUSE THE DECISION BELOW CON-

FLICTS WITH THIS COURTS CASES

REGARDING THE DEFERENCE DUE TO

AN AGENCYS INTERPRETATION OF

ITS REGULATIONS................ PRS Nee 9

CONCLUSION ............... , 12

il

TABLE OF AUTHORITIES

CASES Page

Aparicio v. Norfolk & W. Ry., 84 F.3d 803

(6th Cir. 1996), abrogated on other

grounds by Reeves v. Sanderson Plumb-

ing Prods., Inc., 530 U.S. 133 (2000)......... 3

Bowles v. Seminole Rock & Sand Co., 325

Bee ee IE acdcad sta cecinets ctvancidasinnpineieten 10

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

te gi | ie | | | a Ceeaenen ern Een? Mone 5, 6

Norfolk S. Ry. v. Sorrell, 549 U.S. 158

SE ce vacastascassauevaccaiseues decades ueceweba 1, 5, 6, 8, 9

Oglesby v. S. Pac. Transp. Co., 6 F.3d 603

PO eM MP aici av ndueucen tuner aions deiaces tia ted 6

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

IN Sorc toc oricaves cancerous oat uciace ee

Raley v. Ohio, 360 U.S. 423 (1959)............... 3

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

O8AP-314, 2008 WL 4368480 (Ohio Ct.

Pa TIE at EE wis os viv vyateecteinewenet tebe 5

Rogers v. Mo. Pac. R.R., 3582 US. 500

D6 f BRR ea Ent tg npr eats Als ieh eoaNStaS l

Sartor v. Ark. Gas Corp., 321 U.S. 620

ee ne AO Pe ey eh 5

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

Be EEOE Ie ar TF) ion cvnacsscateccsencassvecsacsesss 6

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

Pe ee i avn cc dana ea acecssiwcecacecclae euneresees 7

Thomas Jefferson Univ. v. Shalala, cane

Bt NW IE ccc ccunesecoasacssentueasivancaeranseeconten . 10

Urie v. Thompson, 337 U.S. 163 (19. Bee hoxevant. 6

STATUTES AND REGULATIONS

ah EE 5 2. Gy | Sa a Rr ero RE ee 8

ya PMN es Zenccecica cos aint au cacraspevereastceres 7 6

5 Fed. Reg. 21,092 (Mar. 31, 1980)...........-. 10

1

TABLE OF AUTHORITIES — continued

RULE

wup. C4. K.. FM) .c.cccosataee

SCHOLARLY AUTHORITY

Stern & Gressman et al..,

Practice (8th ed. 2002) ...

OTHER AUTHORITY

Page

Supreme Court

® Sand et al., Modern Federal Jury Instruc

tions—Cuvil (3d ed. 2006)

6

REPLY BRIEF

In its petition, Conrail showed that there 1s a deep

and persistent conflict among the federal appellate

courts and state high courts as to the standard for

causation under the Federal Employers’ Liability Act

(“FELA”). Pet. 14-22. Conrail explained that

Justices of this Court had recognized that conflict in

Norfolk Southern Railway v. Sorrell, 549 U.S. 158

(2007), and that this case directly implicates that

conflict because the grant and affirmance of summary

judgment was predicated upon the application of a

lower standard of causation based on language from

Rogers v. Missouri Pacific Railroad, 352 U.S. 500,

508 (1957). Pet. 22-24. Conrail also showed that

review should be granted as to the second question

because the decision below conflicts with this Court's

decisions setting forth the deference that courts owe

to an agency's interpretation of its regulations. /d. at

28-31.

Respondent's Opposition (“Opp.”) does _ not

undermine these conclusions. As to causation under

FELA, respondent acknowledges a conflict among the

lower courts. Opp. 20 (“Two state court decisions

cited by Conrail appear to read Rogers more narrowly

than the federal courts of appeals.”). That conflict is

not a “mere semantic discrepancy.” Jd. at 19.

Rather, this Court has acknowledged the “signify-

can[ce]” of the “substantive content of the causation

standard” under FELA, Sorrell, 549 U.S. at 165, and

respondent has no response to Conrail’s showing that

the “even the slightest” standard will be outcome

determinative in a wide-array of FELA cases. Pet.

22-24.

Contrary to respondent’s scattershot argument

(Opp. 6-14), this case 1s an appropriate vehicle to

resolve that conflict. The trial court granted

2

summary judgment under a “relaxed” standard of

causation because it concluded that respondent

showed that his exposure to diesel fumes “contributed

to any degree, even the slightest, to Plaintiffs

asthma.” Pet. App. 32a. That ruling was affirmed by

the court of appeals, which was presented and passed

on the proper standard for causation under FELA.

Id. at lla As a result, adoption of a “proximate

cause” standard by this Court, at a minimum, would

require vacatur of the judgment below.

Finally, as to the second question presented,

respondent cannot avoid the conclusion that the

courts below improperly disregarded the Federal

Railroad Administration's (“FRA’s”) interpretation of

the relevant safety reguiation. That disregard

conflicts with this Court’s decisions and warrants

review. If left uncorrected, the decision below would

impose an impossible burden on railroads to make

their locomotives “airtight” without regard to

whether levels of diesel exhaust are even sufficient to

cause injury to a railroad’s employees.

The petition for writ of certiorari should be granted.

1. THE COURT SHOULD GRANT REVIEW TO

RESOLVE THE CONFLICT OVER THE

STANDARD FOR CAUSATION UNDER

FELA.

1. Respondent's argument that this case is an

inappropriate vehicle is meritless. Opp. 6-14.

Conrail timely raised its challenge below. In its

opening brief to the court of appeals, Petitioner

explained that the “trial court’s reliance on” the

contributed to any degree, even the slightest”

aac

3

standard “was misplaced.” Conrail Br. at 15.!

Battaglha responded that, under FELA, “a railroad is

liable to an injured employee if the railroad’s

‘negligence played any part, even the slightest, in

producing the injury or death for which damages are

sought.” Brief of Appellee, Francis Battaglia at 19,

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

Ct. App. Mar. 4, 2009) (quoting Rogers, 352 U.S. at

506). In reply, Conrail again challenged the standard

set forth in Rogers, explaining that, under FELA, a

plaintiff instead “must prove that ‘negligence was the

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

injury,’ Conrail’s Reply at 4-5 (quoting Tennant v.

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

and that “the Supreme Court has emphasized that

the requirement of proximate causation must still be

met,” id. (citing Coray v. S. Pac. Co., 335 U.S. 520,

423 (1949)).?

Further, Conrail’s challenge is squarely before the

Court because “[t]here can be no question as to the

proper presentation of a federal question when the

highest state court passes on it.” Raley v. Ohio, 360

U.S. 423, 436-37 (1959); accord Stern & Gressman et

al., Supreme Court Practice § 3.19, at 185 (8th ed.

' Conrail referenced Aparicio v. Norfolk & W. Ry., 84 F 3d

803, 808 (6th Cir. 1996), which was cited by the trial court for

the “even the slightest” standard for causation. Pet. App 32a.

Aparicvo took the “even the shghtest” language from Rogers. 84

F.3d at 807-09.

2]n opposing summary judgment on respondent's FELA

claim, Conrail argued that plaintiff “must still demonstrate

some negligence and proximate cause.” Conrail’s Opposition to

Plaintiffs’ Motion for Summary Judgment on Count One (FELA)

at 6. Conrail highlighted that plaintiffs expert had previously

concluded that respondent suffered from “asbestosis” but had

not diagnosed him with the asthma for which he obtained $2.6

million in damages. Opposition to Summary Judgment, Ex. C.

4

2002). Here, the Ohio court of appeals held that,

under FELA, “[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 (citing Rogers, 352 U.S. at 508; Aparicio, 84

F.3d at 808). Applying that legal standard, the court

of appeals affirmed the trial court’s conclusion that

summary judgment was warranted because exposure

to diesel exhaust “contributed to any degree, even the

slightest, to plaintiffs asthma.” Jd. at 32a (citing

Aparicio, 84 F.3d at 803). The court of appeals

passed on the proper standard for showing causation

under FELA.

Finally, contrary to his argument, the “difference

between ‘even the slightest’ causation and so-called

‘proximate cause” was a critical issue below. Opp. 9.

Respondent argued in his summary judgment motion

that under the relaxed FELA standard he need not

“prove that exposure to diesel exhaust was the

proximate cause of [his] asthma” but only that

“exposure to diesel exhaust was a contributing cause,

at least in some small way, of Mr. Battaglia’s

asthma.” Motion for Summary Judgment at 13. This

issue was essential because respondent admitted that

it was “very possible that there were other causes

that also contributed to his asthma” but they were

irrelevant under FELA’s “contributed to any degree,

even the slightest” causation standard. Jd. at 12, 13.5

3 Respondent's expert's report suggested other causes, e.g.,

respondent’s respiratory problems also were “associated with his

lexposure to] asbestos,” which was unrelated to exposure to

diesel exhaust. Motion for Summary Judgment, Ex. B. to

Affidavit Dr. Kelly at 2. Moreover, an expert’s opimon would

not compel judgmen® on an issue where plaintiff bears the

burden of proof because “‘it is for the jury to decide whether any,

4)

As such, this case is an ideal vehicle for resolving

this conflict because a favorable ruling from this

Court would require vacatur of the judgment below to

allow reconsideration of the record under the

appropriate “proximate cause” standard. See Sorrell,

549 U.S. at 172.4

2. Respondent does not and cannot dispute that

there is a conflict among the federal appellate courts

and state courts of last resort over the standard for

causation under FELA. For example, in Marazzato

v. Burlington Northern Railroad, 817 P.2d 672 (Mont.

1991), the court held that Rogers did not do away

with the requirement that a plaintiff must show that

“defendant’s negligence was the proximate cause in

whole or in part” of the claimed injury. /d. at 675.

Likewise, the Utah Supreme Court, relying upon this

Court’s decision in Sorrell, held that Rogers did not

eliminate the “proximate cause requirement” in

FELA actions. Raab v. Utah Ry., 221 P.3d 219, 230

(Utah 2009). Given these rulings, respondent admits

that “[t]wo state court decisions cited by Conrail

and if any what, weight 1s to be given to the [expert’s] test:-

mony” and that is so “even if such testimony [1s] uncontra-

dicted.” Sartor v. Ark. Gas Corp., 321 U.S. 620, 627 (1944)

(Jackson, J.).

4 Respondent seeks to distinguish Rhodes v. Firestone Tire &

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

App. Sept. 25, 2008), arguing that it turned on the expert's

failure to opine with a “reasonable degree of engineering

probability.” Opp. 8 n.5. In Rhodes, the court ruled that the

expert did not satisfy traditional proximate cause because he

identified the alleged defect as one of three “possible’ causes.”

2008 WL 4368480, at *3-4 Here, respondent admitted that it

was “very possible” that there were other “other causes” of his

asthma, but argued they were irrelevant under the “relaxed

standard of causation under the FELA.” Motion for Summary

Judgment at 12, 13.

6

appear to read Rogers more narrowly than the federal

courts of appeals.” Opp. 20. See Sorrell, 549 U.S. at

173 n.* (Souter, J., concurring) (recognizing division

of authority).

Respondent argues review should be _ denied

because the conflict involves only a “handful of state

supreme courts” and “the ‘semantic difference’

between the handful of state supreme _ courts

opinions... has not led to conflicting results.” Opp.

19. Resolution of conflicts between federal courts of

appeals and state high courts is a principal reason for

granting certiorari. Sup. Ct. R. 10(b). Moreover,

resolution of that conflict is critical here because

state and federal courts exercise concurrent juris-

diction over FELA. Urie v. Thompson, 337 U.S. 163,

174 (1949); see also 45 U.S.C. § 56. Therefore, state

and federal courts in the same state currently are

applying conflicting legal standards on a core element

of an important federal statute. Compare Raab, 221

P.3d at 229 (Utah), with Summers v. Mo. Pac. R.R.

Sys., 182 F.3d 599, 606 (10th Cir. 1997); compare

Marazzato, 817 P.2d at 675 (Mont.), with Ogelsby v.

S. Pac. Transp. Co., 6 F.3d 603, 609 (9th Cir. 1993).

Nor can this conflict be dismissed as a “mere

semantic discrepancy.” Opp. 19-20. In Sorrell, the

full Court explained that the issue of “the substantive

content of the causation standard” under FELA was

“significant,” 549 U.S. at 165, and four Justices wrote

or joined separate opinions highlighting the conflict

among the courts on this issue and expressing their

views on whether Rogers “smuggled proximate cause

out of the concept of defendant lability under FELA.”

Id. at 173 n* (Souter, J., concurring); see id. at 177

(Ginsburg, J., concurring in judgment).

The conclusion that the substantive standard for

assessing causation is an important issue is

7

inescapable. Indeed, allowing a plaintiff to argue to a

court or to a jury that the defendant is liable if its

negligence “played any part, even the shghtest” in

causing an injury will have a concrete impact on the

resolution of virtually every case under FELA. 5

Sand et al., Modern Federal Jury Instructions—Civil

{ 89.02, at 89-44 (3d ed. 2006); see also Br. of Ass’n of

American Railroads as Amicus Curiae at 6-11 (“AAR

Br.”) (explaining that causation standard for FELA

claims will have “substantial and decisive impact”).

Moreover, on this point, the suggestion that the

conflicting legal standards do not lead “to conflicting

results” is demonstrably wrong. Opp. 19. Conrail

previously highlighted that the Second Circuit has

held that the standard for causation has a concrete

impact on the resolution of FELA cases. Pet. 22

(discussing Syverson v. Consol. Rail Corp., 19 F.3d

824, 825-28 (2d Cir. 1994)). In Syverson, the court of

appeals acknowledged that the trial court’s grant of

summary judgment “would have been quite

appropriate had this been a negligence action,” 19

F.3d at 828, but it reversed because the standards for

causation “normally applied in summary judgment

are substantially diluted” under FELA, id. at 825.

Respondent has no response to this holding or the

broader point that “the proper standard for showing

causation, whether reflected in jury instructions,

rulings on dispositive motions (as in this case), or

appellate review, surely can affect the outcome of a

FELA case.” AAR Br. 7-8.

3. Finally, respondent argues that review should

be denied because “on the merits,” the court below

applied the proper legal standard. Opp. 22-25. That

argument is wrong, and, in all events, provides no

basis for denying review in this case.

8

On the merits, respondent argues that FELA

should not be interpreted as “requiring strict adher-

ence to traditional proximate cause” and instead

should be read as adopting a “relaxed” causation

standard that “shift[s] financial responsibility for

injured railroad workers ... to the railroads.” Opp.

22, 24. As this Court explained in Sorrell, “FELA

was indeed enacted to benefit railroad em-

ployees,.... [but] [i]t does not follow ... that this

remedial purpose requires us to interpret every

uncertainty in the Act in favor of employees.” Sorrell,

549 U.S. at 171. Instead, “[a]bsent express language

to the contrary, the elements of a FELA claim are

determined by reference to the common law.” Id. at

165-66 (citing Urie, 337 U.S. at 182). And, “the

prevailing view when FELA was enacted in 1908”

was that in a negligence action, “the defendant’s

negligence must have been a proximate cause in

order to give any right of action.” Jd. at 166-67

(quoting 1 T. Shearman & A. Redfield, Law of

Negligence § 94, at 143-44 (5th ed. 1898)).

Although FELA provides that a railroad is liable for

injury “resulting in whole or in part from the

negligence” of defendant, 45 U.S.C. § 51, this

statutory language says nothing “about the familiar

proximate-cause standard for claims ... of a

defendant-employer’s negligence.” Sorrell, 549 U.S.

at 174 (Souter, J., concurring). Likewise, as explain-

ed by Justice Souter, the Court’s cases “throughout

the half-century between FELA’s enactment and the

decision in Rogers ... consistently recognized .

proximate cause as the proper standard in FELA

suits.” Id. As such, “Rogers left the law where it

was.” Id.

To be sure, this view has not garnered unanimous

support. Justice Ginsburg appears to have embraced

9

a different view of FELA, concluding that Rogers sets

forth the test for “proximate causation applicable in

FELA suits.” 549 U.S. at 178 (Ginsburg, J., concur-

ring in judgment). And, as respondent notes, cases

from this Court decided since Rogers have been read

by the lower courts for the proposition that FELA

does not require a showing of proximate causation.

But, as the Utah Supreme Court has ruled, “the

Court’s recent opinion in [Sorrell] strongly indicates

that the [Supreme] Court has never squarely

addressed the issue of Roger’s impact on proximate

cause.” 221 P.3d at 228 (footnote omitted).

Respondent’s views on the merits highlight the

conflict among the lower federal courts. Review

should be granted to resolve that conflict.

Il. REVIEW SHOULD BE GRANTED BECAUSE

THE DECISION BELOW CONFLICTS WITH

THIS COURT’S CASES REGARDING THE

DEFERENCE DUE TO AN AGENCY’S IN-

TERPRETATION OF ITS REGULATIONS.

The decision below also conflicts with this Court’s

decisions regarding the deference due to an agency’s

interpretation of its regulations. Pet. 28-31.

Respondent does not dispute that an agency’s

interpretation of its own regulations 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). Under the regulation at

issue, the FRA has concluded that allowing properly

vented exhaust to migrate into the locomotive cab

only violates the regulation if the exhaust exceeds

10

OSHA’s exposure thresholds. Pet. 29.5 The court

below, Pet. App. 10a, did not dispute that this is

FRA’s position, nor did it assess whether FRA’s

interpretation was “plainly erroneous or inconsistent

with the regulation.” Thomas Jefferson Univ., 512

U.S. at 512 (internal quotation marks omitted).® As a

result, under this Court’s cases, the court of appeals

should have deferred to the agency’s interpretation.

Respondent disagrees, arguing that the court below

did not “disregard Supreme Court precedent on

deference to agency construction of a regulation” but

instead rejected “a purported administrative con-

struction that conflicts with the regulation’s unam-

biguous terms.” Opp. 27. That reading of the ruling

below is unpersuasive. The court of appeals did not

conclude that FRA’s interpretation of its regulation

was impermissible, but instead concluded that its

own interpretation of the “plain language” of the

regulation “is more persuasive.” Pet. App. 10a

(emphasis added). It is, however, the agency’s role to

decide “which among several competing interpre-

tations best serves the regulatory purpose.” Thomas

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

Nor can the adverse impact of that ruling be

dismissed. The decision below requires railroads to

ensure that locomotive cabs are “airtight” because “if

5 The FRA’s interpretation of § 229.43 properly takes into

account exposure to diesel exhaust levels deemed “toxic” by

OSHA while recognizing that railroads simply cannot, in all

circumstances, “prevent the entry of some fumes into the cab.”

45 Fed. Reg. 21,092, 21,098 (Mar. 31, 1980).

6 Respondent's claim (Opp. 28) that the “administrative

construction on which Conrail relies (a report to Congress) 1s not

one that 1s entitled to deference” is mistaken. E.g. Bowles v.

Seminole Rock & Sand Co., 325 U.S. 410, 417 (1945) (deferring

to an agency’s review reflected in congressional report).

LI

during normal operation exhaust enters the cab, the

rule is violated.” Pet. App. lla. Respondent argues

that “[a] single intermediate state court ruling is an

exceedingly slender basis for Conrail’s predictions of

the tremendous difficulties it sees in application of

the plain language of the regulation.” Opp. 29. But,

as explained by amicus AAR, the refusal to defer to

FRA’s interpretation “has the effect of potentially

rendering every locomotive used by railroads to be in

violation of federal law.” AAR Br. 21-22.

Finally, and somewhat ironically, respondent

argues that the ruling’s impact is tempered by the

fact that a plaintiff must prove actual causation.

Opp. 29-30. Under respondent’s view of FELA, how-

ever, that is cold comfort because a plaintiff would

need not prove proximate cause but instead could

establish liability based solely on evidence that diesel

exhaust “contributed to any degree, even the slightest,

to [plaintiffs alleged injury].” Plaintiffs Motion for

Summary Judgment at 12.

CONCLUSION

For these reasons, and those stated in the petition,

the petition for a writ of certiorari should be granted.

Respectfully submitted,

DAVID A. DAMICO CARTER G. PHILLIPS*

BURNS WHITE LLC PAUL J. ZIDLICKY

Four Northshore Center CLIFFORD W. BERLOW

106 Isabella Street SIDLEY AUSTIN LLP

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

(412) 995-3000 Washington, D.C. 20005

(202) 736-8000

COLLEEN A. cphillips@sidley.com

MOUNTCASTLE

xALLAGHER SHARP

Sixth Floor — Burkley

Bldg.

1501 Euclid Avenue

Cleveland, Ohio 44115

(216) 241-5310

Counsel for Petitioner

September 7, 2010 * Counsel of Record