# Reply Brief — Consolidated Rail Corp. v. Battaglia

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2216%3A3

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2216%3A3. Public record. Not legal advice.