Amicus Curiae Brief — Consolidated Rail Corp. v. Battaglia

(2) ee U.S.

wo AUG 13 2010

No. 10-75

OSSICSOS THE CLERK

IN THE

Supreme Court of the Anited 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

BRIEF OF THE ASSOCIATION OF

AMERICAN RAILROADS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

LOUIS P. WARCHOT

DANIEL SAPHIRE *

ASSOCIATION OF AMERICAN

RAILROADS

425 3rd Street, S.W.

Washington, D.C. 20024

(202) 6338-2505

DSaphire@aar.org

Counsel for Amicus

August 13, 2010 * Counsel of Record

Wi SON-EPES PRINTINGCO ,INC — (202) 789-0096 -— WASHINGTON,D C 20002

TABLE OF CONTENTS

meas Or AUTHORITIES .....................02ccc.cc00:

STATEMENT OF INTEREST OF AMICUS

a apucinns inst ynicnsied ud sbacveaceevevsareaneuse

STATEMENT OF THE CASE .........................05.

SUMMARY OF THE ARGUMENT ......000...........

Sonia oncnsisecesvesessescwacevectovanacatences?

8

THIS COURT SHOULD GRANT THE

PETITION AND CLARIFY THE

PROPER STANDARD OF CAUSATION

UNDER FELA BECAUSE IT IS A

FUNDAMENTAL ISSUE ARISING

UNDER THE STATUTE WHICH

CONTINUES TO BE THE SUBJECT

OF CONFUSION AND LACK OF UN-

IFORMITY IN THE LOWER COURTS...

A. The Erroneous Interpretation of

FELA’s Causation Standard By the

Court Below and Other Lower Courts

Has and Will Continue to Have A

Substantial and Decisive Impact on

the Outcome of FELA Cases ...............

B. Although Prior Rulings of this Court

Supporting Proximate Cause Were

Neither Overruled nor Questioned

By Rogers it Will Take a Definitive

Ruling By This Court to Resolve the

Uncertainty That Has Existed for

NE RM occu ulovceuguncumienenaes

or

6

11

il

TABLE OF CONTENTS—Continued

Page

Il. THE LOWER COURT'S FAILURE TO

DEFER TO THE FEDERAL RAIL-

ROAD ADMINISTRATION’S INTER-

PRETATION OF ITS OWN FEDERAL

SAFETY REGULATION HAS THE

POTENTIAL FOR GREATLY AND

IMPROPERLY EXPANDING’ FELA

LARS Deca IteAa Serr 19

COR RIO EARP IOEE ccaxisscndenhates ieee onan eisai 23

ill

TABLE OF AUTHORITIES

CASES Page

Adams v. CSX Transp., Inc., 899 F.2d 536

i ae: | Sn ns ee ene eee 2 5

Anderson v. Baltimore & Ohio R.R., 89

Fes Boe C2 CAP. LGBT) un... .scsecnccsovcceseesessse 14

Armstrong v. Kansas City Southern Ry.

Co., 752 F.2d 1110 (5th Cir. 1985)........... 8,9

Battaglia v. Consolidated Rail Corp., 2009

WL 3325903 (Ohio App. 6 Dist. 2009)...... 7,19

Booth v. CSX Transp., Inc., 211 S.W.3d 81

Sac PANE. OI ik picickccnacankcsantanaxecepreceousiens 10

Brady v. Southern Ry. Co., 320 U.S. 476

I iccsice Wi cas trac ce scialucdey sche apliseio a eee. 18

Clark v. St. Paul & Sioux City R.R., 9

IN... GOL COR. BEBE) ences ccs csccccnscsss 15

Coffey v. Northeast Ill. Reg. Comm. R.R.,

479 F.3d 472 (7th Cir: 2007)..........<cc0<..0568 14

Consolidated Rail Corp. v. Gottshall, 512

ee WEEE AR rei ons cass seeukoncinkinc ea. 12

CSX Transp., Inc. v. Begley, _ S.W.3d

__, 2010 WL 2016531 (Ky. 2010)............ 6

Davis v. CSX Transp., Inc., 2005 WL

EO OC 1G CWT .T). AG. BONIS) oa cciccnsecsenesseencssece 9

Farwell v. Boston & Worcester R.R., 4

Baete. 45 (Wiese. F642) «<<<... ccsccacescracecanss 15

Gibbs v. Union Pac. R.R., 2009 WL

3064956 (S.D. Ill. 2009)...............00. ee. 11

Gibson v. Erie Ry. Co., 63 N.Y. 449 (1875).. 15

Grogg v. CSX Transp., Inc., 659 F.Supp.2d

998 (N.D. Ind. ZOOS) .........ccccscscccccesecevecsces é

Hall v. Norfolk Southern Ry. Co., 2007 WL

2765540 (N.DGa. BOOT) ....cccccccccccccsececesses 13

Harbin v. Burlington Northern Ry. Co.,

921 F.2d 129 (7th Cir. 1990)........ Reopen tied 7

1V

TABLE OF AUTHORITIES—Continued

Hawaui v. Mankichi, 190 U.S. 197 (1903)....

Heydenfeldt v. Daney Gold and Silver

Mining Co. 93 U.S. 634 (1876) .................

Kansas City Southern Ry. Co. v. Nichols

Construction Co., 574 F.Supp.2d 590

Geet Wa: MIME coche csevosaetecukeoucaecesieeecoes

Koller v. Burlington Northern Santa Fe

Ry. Co., No. Civ. S-01-914 GGH (E.D.

ie” ey RRR OER PREP PPT RROEE ST? ghee” DIA oe

Kreig v. CSX Transp., Inc., 2006 WL

2192406 OW.D. Ky. 2006).........ccccscccsercensess

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

Larsen v. Chicago & Northwestern Ry. Co.,

171 F.2d 841 (7th Cir. 1949)..000000 0.

Lau Ow Bew v. United States, 144 U.S. 47

PEs Corson gi otek eee eee cece

McBride v. CSX Transp., Inc., __ F.3d

___, 2010 WL 909071 (7th Cir. 2010).......

Medwig v. Long Island R.R., 2007 WL

DESO ROL CEDIA. Y. 2007) oo nccccccceccccsscssese,.

Metro North Comm. R.R. v. Buckley, 521

FM ET Bsc vshetadsavccavusvinnasnntobneesnns

Mills v. CSX Transp., Inc. 2009 WL

SPR TSSO CECT. DOOD ovi.csccccssscsnavercareecsiasss

Mondou v. N.Y., N. H. & Hartford RR.

a BER a Es + 5 eee en aCe

Montgomery v. CSX Transp., Inc., 376

Mee CO. BOG) ov cvss cunexcccsncssceesesvaces

Morrison v. N.Y. Cent. R.R., 361 F.2d 319

ee St Se eres

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

eS | a ORE ce one batt Ah

11

13, 14

Vv

TABLE OF AUTHORITIES—Continued

Norfolk & Western Ry. Co. v. Ayers, 538

RS III os ba a cs sndesasns'sxaisnsidacissevacsues

Norfolk Southern Ry. Co. v. Sorrell, 459

Rie BE MEPIS Prvcccscsccsssssecsssecnsnsedoaios 6, 11,

Northwestern Pac. R.R. v. Bobo, 290 U.S.

I erect cievosacbex<caeastuisnhccieeaseatcs

Oglesby v. Southern Pac. Transp. Co., 6

Be Ge (OU CIP. 19GS).0...sccsssscccisescvensesss

Parker v. Atchison, Topeka & Santa Fe Ry.

Co., 263 Cal.App.2d 675, 70 Cal. Rptr. 8

NT III a cs accucsveseessecisanitssateains

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

Reed v. Pennsylvania R.R., 351 U.S. 502

8 aes 9 4p MEINE SB Rea Pn ee ea

Reetz v. Chicago & Erie R.R., 46 F.2d 50

I BRE rok ee

Richards v. Consolidated Rail Corp., 330

F. 426 (Gti Cir. DOOS)........0sccccsscseosesccones

Rivera v. Union Pac. R.R., 378 F.3d 502

RO avs ocak cuven vs; cueuranuarensaaneubaces

Rogers v. Missouri Pac. R.R., 352 USS.

500, reh'g denied, 353 U.S. 943

Shanks v. Delaware, Lackwanna & West-

ern &.A., 239 U.S. 556 (1916)...................

Sorrells v. United States, 287 U.S. 485

5s RRR Abe Rates Sitar lak OA Nene Sein ek AA. ete

Southern Pac. Co. v. Gileo, 351 U.S. 493

“LSet egal ratpttenlantis ante A Rn ESSIEN ee thg Ie taEeE

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

or tees ee cen oe eee ee

Page

8

12,13

16

7

vl

TABLE OF AUTHORITIES—Continued

Page

Summers v. Missouri Pac. R.R. Sys., 132

P.O SOO (10th Civ. ODT) oo ccsicsccicecscsssssceess 15

United States v. Katz, 271 U.S. 354

hy RADA RGR re aa nt eR RID NADINE 22

United States v. Kirby, 74 U.S. (7 Wall.)

A I cn ene ee ee, a 21

United States v. Ryan, 284 U.S. 167

SEs | BREMEN aR Riser gt MMOS, NER TIOTR e NS Se 22

Urie v. Thompson, 337 U.S. 163 (1949)....... 22

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

GOP Te GE, aves sass aenssasndecdacrdedesssvaccies 7

STATUTES AND REGULATIONS

ee PE a. peck buskacstncoeceaecsececedansr ras 2

We essa ane avutseekses eee erae 12

AEE ee” ee ee ee MeCN eS 12

TE FD ks SONA enn se ate ii 20

Act of Aug. 11, 1939, c. 685, 53 Stat. 1404.. 17

oe fe. S|. fee 5, 19, 20, 21. 22

OTHER AUTHORITIES

Federal Railroad Administration, Railroad

Occupational Safety and Health Stan-

dards; Termination, Policy Statement 43

Fed. Reg. 10584 (1978) .............cc.sssccseceeeee 20

Federal Railroad Administration, Locomo-

tive Crashworthiness and Cab Working

Conditions, Report to Congress (1996) .... 21

H.R Rep. No. 1386 (1908)......................0:0008 16

S. Hep. No. 460 (1S06) .........cccccscccccescssevssccene 15

i. BUC. PE, TE CWO) sacs ce eadecceevedicenvess 17

IN THE

Supreme Court of the Anited States

No. 10-75

CONSOLIDATED RAIL CORPORATION,

Petitioner,

Wy

FRANCIS BATTAGLIA,

Respondent.

On Petition for a Writ of Certiorari

To the Court of Appeals of Ohio,

Sixth Appellate District

BRIEF OF THE ASSOCIATION OF

AMERICAN RAILROADS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

STATEMENT OF INTEREST

OF AMICUS CURIAE '

AAR is an incorporated, nonprofit trade association

representing the nation’s major freight railroads and

Amtrak. AAR’s members operate approximately 78

percent of the rail industry’s line haul mileage, pro-

duce 94 percent of its freight revenues, and employ

'In accordance with Rule 37.2.(a), AAR has provided notice of

its intent to file this brief to counsel for petitioner and

respondent. The parties have consented to AAR’s filing of an

amicus bnef. Letters expressing consent have been filed with

the Clerk of the Court. Pursuant to Rule 37.6, AAR states that

no person or entity other than AAR has made monetary

contributions toward this brief, and no counsel for any party

authored this brief in whole or 1n part.

2

92 percent of rail employees. In matters of signifi-

cant interest to its members, AAR frequently appears

before Congress, administrative agencies and the

courts on behalf of the railroad industry, including

participation as amicus curiae in cases raising sig-

nificant legal and policy issues.

This case, arising under the Federal Employers’

Liability Act (FELA), 45 U.S.C. §§51-60, presents

such issues. FELA, a federal negligence statute,

takes the place of workers’ compensation in the rail-

road industry. FELA presents unique issues and

problems for railroads because, as a negligence law, it

differs fundamentally from the no-fault compensation

systems that cover virtually all other U.S. industries.

Each year thousands of FELA claims and lawsuits,

like the case below, are asserted against AAR

member railroads, to which they devote substantial

legal and financial resources: all told, the railroads

spend three quarters of a billion dollars annually in

the payment and defense of FELA claims. Because

FELA litigation is an ongoing event for all major

railroads, AAR has a strong interest in assuring that

lower courts do not improperly expand railroad

liability under FELA.

Echoing prior decisions of some other lower state

and federal courts, the court below erroneously sanc-

tioned the application of a relaxed standard of causa-

tion in FELA cases, a ruling that is at odds with the

plain language of the statute, Congressional intent

and prior decisions of this Court and other courts.

This issue is relevant in virtually every FELA

lawsuit, and numerous lower court decisions demon-

strate that the way in which causation is interpreted

can affect the outcome of a case. Therefore, AAR

members, who make up the vast majority of FELA

3

defendants, have a strong interest in seeking defini-

tive guidance from this Court on the standard of

causation.

AAR’s members also are greatly concerned over the

lower court’s failure to defer to the Federal Railroad

Administration’s (FRA) interpretation of an impor-

tant federal railroad safety regulation. The ruling

that the regulation was violated if any diesel exhaust

enters a locomotive cab, which was contrary to FRA’s

the interpretation of a rule that it promulgated and

enforces, amounted to a finding that the defendant

was negligent as a matter of law. As with the court’s

ruling on causation, this ruling has the potential

greatly, and improperly, to expand FELA liability in

a manner inconsistent with the view’s of the expert

federal agency.

When AAR participates as amicus curiae in a

FELA case, it brings a broad, industry-wide perspec-

tive to the issues before the court. AAR works closely

with its member railroads on a host of issues arising

under FELA. Moreover, AAR has had long-standing

involvement with the subject of rail safety, and parti-

cipates in all significant railroad safety rulemaking

proceedings conducted by the FRA. Thus, AAR is

thoroughly familiar with the trends and key issues

that confront its members both in FELA litigation

and in the field of safety regulation. As a trade

association representing the nation’s major railroads,

AAR has an interest not only in assisting the

petitioner in obtaining relief from an erroneous

decision, but also in assuring that an important

federal law is not misconstrued to the detriment of

railroads in the future.

4

STATEMENT OF THE CASE

AAR adopts the Statement of the Case of

Petitioner.

SUMMARY OF THE ARGUMENT

This Court should grant the petition in order to

provide guidance on a fundamental issue arising

under FELA that has been the source of confusion

and lack of uniformity for many years: the proper

standard of causation. Time and again, in providing

jury instructions, ruling on dispositive motions, and

in reviewing such matters on appeal, some lower

courts have held that a more “relaxed” burden

applies to plaintiffs in proving causation in FELA

cases than would in ordinary common law actions.

Many of those decisions demonstrate that how courts

interpret causation can have a significant impact on

the outcome of a case. In contrast, other courts hold

that FELA plaintiffs must show proximate cause.

Only clarification of the proper standard of causation

by this Court will end the intolerable lack of

uniformity on this fundamental issue.

The language and legislative history of the statute,

and early decisions of this Court, show that Congress

did not intend to modify the common law standard of

causation when it enacted FELA in 1908. Congress

expressly modified some of the prevailing common

law defenses that made recovery more difficult,

including the traditional contributory negligence doc-

trine, but these modifications did not address the

causation standard. Consequently, in the years

following FELA’s enactment this Court consistently

held that plaintiffs had to prove their injuries were

proximately caused by the defendant’s negligence.

Neither subsequent amendments to FELA, nor this

5

Court’s decision in Rogers v. Missouri Pac. R.R.,

offers support for lower court decisions that hold

otherwise.

The lower court’s failure to defer to the FRA’s

interpretation of its own safety regulation, which will

have profound implications for the rail industry’s

locomotive fleet, also warrants granting the petition.

The court below held that evidence of the presence of

any diesel exhaust in a locomotive cab constitutes a

violation of 49 C.F.R. §229.43(a), requiring a finding

of negligence per se under FELA. However, the

language of the regulation does not remotely compel

such a conclusion. Consistent with the regulation’s

language and intent, FRA’s enforcement efforts have

focused on defects in a locomotive exhaust system

and the sufficiency of stack heights. In addition, FRA

has stated that it utilizes the OSHA diesel exhaust

criteria to determine compliance. This interpreta-

tion, which the court rejected, is entitled to deference

because it is entirely consistent with the language of

the regulation and plainly reasonable under the

circumstances.

ARGUMENT

I. THIS COURT SHOULD GRANT THE

PETITION AND CLARIFY THE PROPER

STANDARD OF CAUSATION UNDER

FELA BECAUSE IT IS A FUNDAMENTAL

ISSUE ARISING UNDER THE STATUTE

WHICH CONTINUES TO BE THE SUB-

JECT OF CONFUSION AND LACK OF

UNIFORMITY IN THE LOWER COURTS

As in any negligence action, causation is a fun-

damental issue in litigation arising under FELA. See

e.g., Adams v. CSX Transp., Inc., 899 F.2d 536, 539

(6th Cir. 1990) (A FELA plaintiff must “prove the

6

traditional common law elements of negligence: duty,

breach, foreseeability, and causation”). During the

statute’s first fifty years causation was a straight-

forward and non-controversial issue, but has since

become muddled and confused. Echoing this confu-

sion, the Kentucky Supreme Court recently observed

that “(t]he (U.S.] Supreme Court has yet to state

clearly whether Coray, Carter, and Rogers altered the

common-law proximate cause standard,” and noted

further that “[t]he court declined to address what the

causation standard should be in Norfolk Southern v.

Sorrell.” CSX Transp., Inc. v. Begley, _ S.W.3d ___,

2010 WL 2016531, at *5 (Ky. 2010). This case

presents an excellent opportunity for this Court to

answer the question left unresolved in Sorrell, and

provide much needed clear and definitive guidance on

the proper standard of causation under FELA.

A. The’ Erroneous Interpretation of

FELA’s Causation Standard By the

Court Below and Other Lower Courts

Has and Will Continue to Have A

Substantial and Decisive Impact on

the Outcome of FELA Cases

Commenting on the disarray that existed on causa-

tion even in 1968, the California Court of Appeals

observed that “[i]t is almost impossible to frame a

definition of causation for F.E.L.A. cases . . . because

the federal decisions cannot themselves be fully

harmonized on the subject.” Parker v. Atchison,

Topeka & Santa Fe Ry. Co., 263 Cal.App.2d 675, 678,

70 Cal. Rptr. 8, 10 (Cal. App. 1968). As the Petition

describes, this confusion and lack of uniformity has

only increased, to the point where there presently is a

serious split of authority in the lower federal and

state courts on the standard of causation that applies

]

in FELA cases. [Pet. at 16-21] Some lower courts

erroneously ascribe to this Court’s decision in Rogers

v. Missouri Pac. R.R., 352 U.S. 500, reh’g denied, 353

U.S. 943 (1957), an intent to “relax” the standard

of «ausation under FELA, often utilizing colorful

metaphors to describe this alleged statutory meta-

morphosis.*” For example, the Seventh Circuit ex-

plained that to sustain a jury verdict in a FELA case

requires “evidence scarcely more substantial than

pigeon bone broth.” Harbin v. Burlington Northern

Ry. Co., 921 F.2d 129, 132 (7th Cir. 1990); see also,

Rivera v. Union Pac. R.R., 378 F.3d 502, 506 (5th Cir.

2004\(calling the plaintiffs burden of proof “feather-

weight”). Here, the Ohio Court of Appeals relied on

Rogers for the conclusion that a railroad is liable

under FELA if its negligence “in any degree, con-

tributes . .. even in the slightest degree” to the

plaintiffs injury. Battaglia v. Consolidated Rail

Corp., 2009 WL 3325903, at *3-4 (Ohio App. 6 Dist.

2009). Agreeing that plaintiff satisfied his burden

under this standard, the Court affirmed the grant of

summary judgment for plaintiff on causation, taking

that issue from the jury. Jd. at *6.

This issue is of great importance because the deter-

mination of the proper standard for showing causa-

tion, whether reflected in jury instructions, rulings

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

* E.g., Williams v. Long Island R.R. Co , 196 F.3d 402, 406

(2d Cir. 1999); Oglesby v. Southern Pac. Transp Co., 6 F.3d 603,

606-07 (9th Cir. 1993). Recently, a district court in Indiana

agreed with the defendant that “the causation evidence in the

record as it stands is tenuous” but nonetheless denied the defen-

dant’s motion for summary judgment “in light of the feather-

weight standard of proof required” under FELA. Grogg v. CSX

Transp., Inc., 659 F.Supp.2d 998, 1005 (N.D. Ind. 2009).

8

review, surely can affect the outcome of a FELA case.

Perhaps no better example exists of how the standard

of causation can be outcome determinative than the

Fifth Circuit’s opinion in Armstrong v. Kansas City

Southern Ry. Co., 752 F.2d 1110 (5th Cir. 1985). In

Armstrong, the railroad had hired a local cab com-

pany to transport the plaintiff from the point where

he disembarked from a train late at night to the

railroad’s yard offices. In route, the driver stopped

the cab on the road without turning on the emer-

gency flashers. The cab was hit from the rear by

another motorist, injuring the plaintiff. Asserting

that the “common-law proximate cause standard is

modified and the employee has a less demanding

burden of proving causal relationship,” id. at 1113,

the Court affirmed the jury’s verdict finding the

railroad liable, allowing the jury a wide berth to

make inferences supporting its verdict.

Armstrong also involved a state law indemnity

action by the railroad against the cab company, its

agent.° Under the very same set of facts, the Court of

Appeals affirmed the denial of the railroad’s claim,

upholding the lower court’s finding that the cab

driver was not negligent. The Court held that “even

though the jury found that [defendant] was liable

to Armstrong [in the FELA action] because of the

negligent conduct of its agent, the district court

was neither constrained nor required to find the

negligence of [the cab company] proximately caused

Armstrong’s injury.” 7d. at 1115. The Court ex-

* In Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135 (2003),

this Court held that while joint and several liability applies to

FELA, railroads have the right to bring indemnity and con-

tribution actions against third parties under applicable state or

federal law. Jd. at 162.

9

plained that the railroad’s “argument ignores the

different causation standards of the two actions. .

The standards of liability for negligence under §1 of

[FELA] are significantly broader than in ordinary

common-law negligence actions.” Jd. Thus, the very

conduct that gave rise to liability in the FELA action,

did not support liability in the indemnity action, an

outcome directly attributable to the Court’s ruling

that a different, “significantly broader” standard of

causation applies under FELA. Jd.*

Other examples of the impact of FELA’s purported

“relaxed” causation standard abound. In ruling on

a railroad’s summary judgment motion, a federal

district court in Kentucky described the plaintiff's

case as “weak” and stated that the evidence “cast

substantial doubt on the ability of Plaintiff to meet

even the low bar of proof required in a FELA case.”

Kreig v. CSX Transp., Inc., 2006 WL 2792406, at *2

(W.D. Ky. 2006). Nevertheless, the Court denied the

motion based on its view that the “[p]laintiff’s burden

is significantly lighter than in an ordinary negligence

case,” with its comments strongly suggesting that the

outcome would have been different had this not been

a FELA action. Jd.

In Davis v. CSX Transp., Inc., 2005 WL 1935676,

at *1 (W.D. Ky. 2005), the Court explained that the

*Not only does the Armstrong decision demonstrate starkly

how applying a relaxed causation standard can affect the out-

come of a case, it highlights the inherent unfairness of such a

rule. Ayers suggests that the impact of holding railroads jointly

liable for the negligence of other tortfeasors is mitigated by the

railroads’ mght to seek indemnity under state law. However,

the fairness of this balance is undermined if railroads must

defend against a relaxed standard of causation as FELA defen-

dants, but must prove proximate cause as indemnity plaintiffs.

10

“burden of proof of causation under FELA is relaxed

compared to ordinary negligence actions” and there-

fore the plaintiff “need offer little more than a

scintilla of evidence that the employer’s negligence

played any part in the plaintiffs injury.” As a result,

the Court dispensed with the need for the plaintiff to

offer evidence connecting the alleged negligent con-

duct (allowing pools of grease to accumulate in the

yard) to her injury (losing her footing and falling off a

boxcar sill step), and denied the railroad’s motion for

summary judgment. Id. at *2.

In Koller v. Burlington Northern Santa Fe Ry. Co.,

No. Civ. S-01-914 GGH (E.D. Calif. 2002), the plain-

tiff brought a FELA action based on his employer's

failure to prevent an assault by a third party. The

Court evaluated the railroad’s motion for summary

judgment under the premise that “[iJn a FELA case,

the causation standard is relaxed” and “the jury’s

power to engage in inferences is significantly broader

than in common law negligence actions.” Examining

the evidence in the context of these legal conclusions,

the Court denied the railroad’s motion “given the

weakened causation standard in FELA cases.”

Even in the rare instance where a trial court

grants a defendant’s dispositive motion in a FELA

case, such rulings typically do not survive appellate

review in courts applying a relaxed standard of

causation. For example, in Booth v. CSX Transp.,

Inc., 211 S.W.3d 81 (Ky. App. 2006), the trial court

granted summary judgment for the railroad, finding

that “it does not appear that the testimony of either

of Plaintiffs physicians provides the necessary

testimony stated within a reasonable degree of medi-

cal probability to establish causation on the part of

CSX.” ZId. at 85. However, the Kentucky Court of

ll

Appeals reversed, expressing its view that “Congress

intended FELA to be a departure from common law

principles of liability . ..” and that “FELA plaintiffs

have a lower standard of proof than plaintiffs in

ordinary negligence cases.” Id. at 83-84.

This point was recently underscored by an Illinois

district court which, referring to FELA’s purported

“relaxed standard for proving causation,” explained

that while the plaintiffs “first claim might not

survive a motion for summary judgment in the

traditional tort context, the low negligence threshold

of FELA ensures that this count will live to see

another day.” Gibbs v. Union Pac. R.R., 2009 WL

3064956, at *4 (S.D. Ill. 2009). Similarly, a federal

court in Louisiana summarized the judicial attitude

about FELA cases when it found that “FELA

plaintiffs can survive dispositive motions by offering

evidence which would be insufficient to overcome a

similar motion in an ordinary civil case.” Kansas City

Southern Ry. Co. v. Nichols Construction Co., 574

F. Supp.2d 590, 594 (E.D. La 2008).

B. Although Prior Rulings of this Court

Supporting Proximate Cause Were

Neither Overruled nor Questioned By

Rogers it Will Take a Definitive Ruling

By This Court to Resolve’ the

Uncertainty That Has Existed for Over

Fifty Years

While this Court did not directly decide the issue

of the proper standard of causation under FELA in

Norfolk Southern v. Sorrell, 549 U.S. 158 (2007), the

approach adopted in that decision strongly suggests

that Congress intended to incorporate common law

proximate cause into FELA. Sorrell held that the

causation standard for employee contributory negli-

12

gence was equivalent to the standard for employer

negligence. 549 U.S. at 171. This Court based its

decision in part on the fact that under common law

the same standard of causation applied to both

employer and employee negligence, which, it ex-

plained, was “strong evidence against Missouri’s

disparate standards.” /d. at 168. Thus, Sorrell was

grounded in the well established rule that except

where Congress expressly altered the common law,

FELA is to be interpreted in accordance with common

law principles. Accord Consolidated Rail Corp. v.

rottshall, 512 U.S. 532, 544 (1994); Metro-North

Comm. R.R. v. Buckley, 521 U.S. 424, 429 (1997). As

with the principle of equivalence of standards, prox-

imate cause also was the common law rule when

FELA was enacted. It would be curious indeed to

hold that Congress adopted the common law rule

of equivalence, but at the same time rejected the

equally entrenched common law rule of proximate

cause. Certainly, there is no statutory basis for doing

so.

In Sorrell, the plaintiff argued that use of the term

“in whole or in part,” in section 1 of FELA, but not in

section 3, signaled that each section incorporated a

different standard of causation, with section 1, which

addresses employer negligence, calling for a more

relaxed standard. See 45 U.S.C. §§51, 53. This Court

rejected that argument. Sorrell instead confirmed

that the “in whole or in part” language—the alleged

statutory basis for the elimination of proximate

cause—simply is descriptive of FELA’s comparative

negligence standard, under which the employer's

negligence need not be the sole cause of an injury for

the employer to be liable for daniages (albeit, reduced

damages if the employee’s negligence also contributes

to the injury). 549 U.S. at 170-71.

13

Notwithstanding the reasoning of Sorrel!/, and

Justice Souter’s concurring opinion, critiquing with

“considerable force” the cases suggesting that FELA

has abolished proximate cause, see McBride v. CSX

Transp., Inc., __ F.3d ___, 2010 WL 909071, at *15

(7th Cir. 2010), it is clear that uncertainty over the

proper standard of causation will continue among

lower courts. See eg., Mills v. CSX Transp., Inc.,

2009 WL 4547685, at *5, n. 4 (Tenn. 2005) (“It is not

entirely clear which standard of causation Rogers

applies to FELA cases—the common law standard or

a relaxed standard.”); Montgomery v. CSX Transp.,

Inc., 656 S.E.2d 20, 27 (S.C. 2008)(*{T]he Sorrell

Court did not establish precisely what the FELA

standard for causation is.”); Hall v. Norfolk Southern

Ry. Co., 2007 WL 2765540, at *6, n.2 (N.D.Ga. 2007)

(“With respect for [sic] a standard of causation, the

Supreme Court continues to debate the precise

contours of its holding in Rogers.”)

Though Sorrell has ignited debate over the mean-

ing of Rogers, and the proper standard of causation

under FELA, some lower courts continue to view

Rogers as precedent for the abandonment of prox-

imate cause in FELA cases. E.g., Medwig v. Long

Island R.R., 2007 WL 1659201 (S.D.N.Y. 2007)

(adhering to Second Circuit precedent interpreting

Rogers as countenancing both a relaxed standard of

causation and negligence in FELA cases, finding that

Sorrell did not overrule that precedent). Others do

not. See Raab v. Utah Ry., 221 P.3d 219 (Utah

2009)(notion that Rogers “definitively abandoned’ the

requirement that a FELA plaintiff show proximate

cause” is “not mandated by the Supreme Court’s

language in Rogers”). In a decision earlier this year,

the Seventh Circuit acknowledged that “[elarly FELA

cases did not interpret [FELA] as altering the

14

common-law requirement of proximate cause” and

that “[t]hese early cases never have been overruled

explicitly.” McBride, 2010 WL 909071 at *4-5.

Nonetheless, McBride “decline[d] to hold that. . .

common law causation is required to establish

liability under FELA,” td. at *17, as the Seventh

Circuit adhered to the notion that the concept of

proximate cause has “broadened” over “FELA’s

history,” and that a “new conception of proximate

cause ‘crystallized’ in Rogers.” Id. at *6.

Indeed, several federal cours of appeals, which

previously had understood FELA to incorporate

proximate cause, came to the conclusion that Rogers

required them to repudiate their previous holdings.

See e.g., Richards v. Consolidated Rail Corp., 330

F.3d 428 (6th Cir. 2003) (holding that Rogers “an-

nounced a relaxed test for establishing causation in

FELA cases,” id. at 433, and rejecting prior Sixth

Circuit decision in Reetz v. Chicago & Erie R.R., 46

F.2d 50 (6th Cir. 1931), as “no longer good law in

light of Rogers.” Id. at 437); Compare Anderson v.

Baltimore & Ohio R.R., 89 F.2d 629, 630 (2d Cir.

1937) (the issue is whether the defect “was the prox-

imate cause of [plaintiffs] death.”) with Nicholson v.

Erie R.R., 253 F.2d 939, 940 (2d Cir. 1958) (“[T]o

impose liability on the defendant, the negligence need

not be the proximate cause of the injury.”); Larsen v.

Chicago & Northwestern Ry. Co., 171 F.2d 841, 844

(7th Cir. 1949) (“To recover under [FELA] plaintiff

must prove that the defendant was negligent and

that such negligence in whole or in part was the

proximate cause of his injuries.”) with Coffey v.

Northeast Ill. Reg. Comm. R.R., 479 F.3d 472, 476

(7th Cir. 2007) (“relaxation of common law standards

of proof applies to” causation.). The Tenth Circuit

explained that “[dJuring the first half of this century,

15

it was customary for courts to analyze liability under

the FELA in terms of proximate causation,” but that

Rogers “definitively abandoned this approach.” Sum-

mers v. Missouri Pac. R.R. Sys., 132 F.3d 599, 606

(10th Cir. 1997).

Notwithstanding these holdings, the argument that

FELA eliminated proximate cause finds no support

in the statute’s legislative history. When Congress

enacted FELA, it made express changes to some of

the harsher aspects of nineteenth century common

law which often erected insurmountable barriers to

recovery by workers sustaining job-related injuries.°

Accordingly, contemporaneous with the statute’s en-

actment, the Senate reported that FELA “revises the

law as now administered in the courts in the United

States in four important particulars.” S. Rep. No.

460, at 1 (1908). Specifically, the Senate Report

described these revisions to the common law as

addressing the fellow servant doctrine, assumption of

the risk, contributory negligence and prohibiting con-

tracts that relieve the employer of liability. Jd. at 1-3.

There was no suggestion that the common law stan-

dard of causation was being modified. The House of

Representatives offered an identical list when it

described how FELA “change[d] the common-law

° For example, recovery was denied if the worker knew the

inherent dangers of a job and assumed those risks by accepting

employment. E.g., Clark v. St. Paul & Sioux City R.R., 9 N.W.

581 (Minn. 1881); Gibson v. Erie Ry. Co., 63 N.Y. 449 (1875).

The fellow servant rule, a variant of the assumption of the risk

doctrine, held that among the ordinary risks of employment the

employee takes upon himself is the “carelessness and negligence

of those who are in the same employment,” on the theory that

“these are perils which the servant is as hkely to know, and

against which he can as effectually guard, as the master.”

Farwell v. Boston & Worcester R.R., 4 Metc. 49, 57 (Mass. 1842).

16

liability of employers,” H.R Rep. No. 1386, at 1 (1908),

noting in addition, that the FELA “makes each party

responsible for his own negligence and requires each

to bear the burden thereof.” Jd.

Similarly, this Court’s understanding of the revi-

sions of common law made by FELA did not include

any modification to the standard of causation.

Shortly after its enactment, the constitutionality of

FELA was challenged. Among other arguments

advanced by those challenging the statute was that

in modifying the common law Congress exceeded its

authority to regulate interstate commerce. In ad-

dressing this challenge, which it rejected, this Court

described those modifications as including (1) the

abrogation of the fellow servant rule; (2) the replace-

ment of the contributory negligence rule with a

scheme of comparative negligence; (3) the abrogation

of the assumption of the risk doctrine where a viola-

tion of a safety statute caused the injury; and (4) the

right of a personal representative to seek damages for

the death of an employee for the benefit of designated

relatives. Mondou v. N.Y., N. H. & Hartford R.R., 223

U.S. 1, 49-50 (1912). None of these changes, however,

addresed the standard of causation. Not surpri-

singly, as petitioner has shown, this Court’s decisions

in the decades following FELA’s enactment were

remarkably consistent in identifying proximate cause

as the proper standard of causation.® [Pet. at 24-25]

Since Congress has made no change to the relevant

language of FELA since 1908, there simply is no

basis to support the assertion that the concept of

6 See e.g., Lang v. N.Y. Cent. R.R., 255 U.S. 455, 461 (1921);

St. Louis-S.F. Ry. v. Mills, 271 US. 344, 347 (1926); Northwes-

tern Pac. R R. v. Bobo, 290 U.S. 499, 503 (1934).

17

proximate cause has broadened over the years since

FELA was enacted. Some courts have asserted that

Rogers’ purported introduction of a relaxed causation

standard was to conform to the 1939 amendments to

FELA. Richards, 330 F.3d at 434; Morrison v. N_Y.

Cent. R.R., 361 F.2d 319, 320 (6th Cir. 1966).

However, a review of those amendments gives lie to

that rationale.

Rogers does briefly reference the 1939 amend-

ments, 352 U.S. at 509-10, but never suggests that

they required a reexamination of the causation

standard under FELA, for the simple reason that

they did not. The 1939 amendments were primarily

intended to ease the path toward recovery by FELA

plaintiffs by modifying aspects of the statute that

served to prevent injured employees from recovering,

either because they could not meet the strict test of

interstate commerce’ or because the employer suc-

cessfully argued that the employee had assumed the

risks inherent in the employment. However, the

1939 amendments did not purport to address, let

alone modify, the standard of causation.

Adding a provision to section 1 of FELA, the 1939

amendments expanded the scope of FELA’s coverage

so that workers would no longer have to prove they

were engaged directly in interstate commerce at the

time they were injured in order to come within the

scope of FELA’s coverage. Act of Aug. 11, 1939, c.

685, §1, 53 Stat. 1404; see S. Rep. No. 661, at 2-3

(1939); see Southern Pac. Co. v. Gileo, 351 U.S. 493

’ In order to recover, “the employee, at the time of the injury,”

had to be “engaged in interstate transportation, or in work so

closely related to it as to be practically a part of it.” See Shanks

v. Delaware, Lackwanna & Western R.R., 239 U.S. 556, 558

(1916).

18

(1956); Reed v. Pennsylvania R.R., 351 U.S. 502

(1956). In addition, in 1939, Congress amended FELA

to eliminate the defense of assumption of the risk in

all cases. Jd. The 1939 amendments also increased

the statute of limitations under FELA from two to

three years, id. at §2, and prohibited railroads from

establishing and enforcing rules which penalized

employees for giving information concerning an acci-

dent to the injured person or his representative. /d.

at §3. Thus, there is no statutory basis for incor-

porating into FELA a standard of causation that

differs from what Congress intended in 1908.

Indeed, a few years after enactment of the 1939

amendments, this Court described the “proximate

cause” standard as requiring a finding “that the

injury was the natural and probable consequence of

the negligence or wrongful act, and that it ought to

have been foreseen in the light of the attending

circumstances,” adding that “le]vents too remote to

require reasonable prevision need not be antic-

ipated.” Brady v. Southern Ry. Co., 320 U.S. 476, 483

(1943). Rather than repudiate Brady and dozens of

other prior decisions, as the Petition explains, Rogers

“does not alleviate a plaintiffs burden to prove prox-

imate cause.” [Pet. at 27] That lower courts would

suggest otherwise underscores the vital need for this

Court directly to address the important issue of

causation under FELA.

The “relaxed” standard that has become en-

trenched in many jurisdictions will continue to

impact numerous cases in the future. Several thou

sand FELA lawsuits are filed each year. Except in

the occasional case where the railroad defendant

admits liability, causation is an element of the plain-

tiffs case in each such lawsuit. The “relaxed”

19

standard utilized by some courts will continue to

make recovery of damages more likely—often vir-

tually assured—in FELA cases.

Il. THE LOWER COURT’S FAILURE TO

DEFER TO THE FEDERAL RAILROAD

ADMINISTRATION’S INTERPRETATION

OF ITS OWN FEDERAL SAFETY REG-

ULATION HAS THE POTENTIAL FOR

GREATLY AND IMPROPERLY EXPAND-

ING FELA LIABILITY

The decision affirming the grant summary judg-

ment on the grounds that Conrail violated 49 C.F.R.

§229.43(a) demands review because the lower court's

failure to defer to the FRA’s interpretation of its own

regulation will have profound implications for the rail

industry’s fleet of over 24,000 locomotives. Section

229.43(a) states, in relevant part, that “[p|roducts of

combustion shall be released entirely outside the cab

and other compartments. Exhaust stacks shall be of

sufficient height or other means provided to prevent

entry of products of combustion into the cab or other

compartments under usual operating conditions.” In

a ruling affirmed by the Ohio Court of Appeals, the

trial court held that evidence of the presence of diesel

exhaust in a locomotive cab, at any level, constitutes

a violation of §229.43(a), resulting in a finding of per

se negligence in FELA cases. Battaglia, 2009 WL

3325903, at *5. The court justified its ruling on the

grounds that the language of the regulation unambi-

guously required such a result. /d. The language of

§229.43(a) does not remotely compel the conclusion

that the presence of diesel exhaust at any level

necessarily requires a finding of negligence per se.

Yet the court refused to consider any evidence sup-

porting a less rigid, and more reasonable, reading

20

of the regulation, including evidence reflecting the

intent of the FRA, the agency which promulgated the

regulation and which is charged by Congress with its

enforcement.

The lower court’s conclusion that the regulation is

unambiguous is simply wrong. Section 229.43(a)

contains two operative sentences. The first requires

that products of combustion be released outside the

cab: it does not “unambiguously” demand that abso-

lutely no exhaust ever enter the cab once it has been

released outside the locomotive. Jd. The second sen-

tence is directed at the design of exhaust stacks,

requiring that they be of sufficient height, or other-

wise, to prevent entry of exhaust into the cab under

usual operating conditions. /d. The court below

found a violation of the regulation without any con-

sideration of whether the stacks on the locomotives

plaintiff operated were deficient in that regard.

When confronted with the issue of whether a safety

regulation has been violated, courts must focus on

the language, purpose and intent of the regulation.

The Secretary of Transportation has plenary power to

promulgate regulations “for every area of railroad

safety,” 49 U.S.C. §20103, authority which is exer-

cised by FRA. In promulgating rail safety regula-

tions, it is not FRA’s intent to impose impossible

obligations on railroads that serve no genuine safety-

related purpose. See Federal Railroad Administra-

tion, Railroad Occupational Safety and Health Stan-

dards; Termination, Policy Statement 43 Fed. Reg.

10584, 10586 (1978), (FRA “must decide what regula-

tions are necessary and feasible.”). When applying

§229.43(a), FRA has stated that its focus is on defects

(e.g., leaks) in the locomotive exhaust system and

the sufficiency of stack heights. Federal Railroad

21

Administration, Locomotive Crashworthiness and

Cab Working Conditions, Report to Congress, ch. 7,

p.7-1 (1996). Additionally, FRA has explained that it

“employs the OSHA criteria to determine compliance

with the Locomotive Inspection Act,” id. at 7-2,

indicating that the purpose of §229.43(a) is to protect

employees from harmful levels of diesel exhaust, not

to assure they work in a pristine environment.

FRA’s interpretation of $229.43(a) is entitled to

deference because it is entirely consistent with the

language of the regulation and plainly reasonable

under the circumstances. See Pet. at 28. FRA’s

stated policy recognizes that it would be virtually

impossible for locomotive cabs to be perfectly sealed

and airtight, a wholly reasonable conclusion consider-

ing that a locomotive cab is a compartment that

contains windows and doors designed to open and

close.

The lower court’s failure properly to defer FRA’s

interpretation of §229.43(a)’s language has the effect

of potentially rendering every locomotive used by

railroads to be in violation of federal law.* Indeed,

* The court’s approach to interpreting the regulatica, without

consideration of the evidence of the regulatory intent presented

by Conrail, was at odds with the fundamental tenets of statu-

tory interpretation, which calls for construing statutes in a way

that is consistent with their overall purpose and structure. See

Heydenfeldt v. Daney Gold and Silver Mining Co., 93 U.S. 634,

638-39 (1876). The Supreme Court has repeatedly explained

that “jajll laws should receive a sensible construction. General

terms should be so limited in their application as not to lead to

injustice, oppression, or an absurd consequence. It will aiways,

therefore, be presumed that the legislature intended exceptions

to its language, which would avoid results of this character.”

Sorrells v. United States, 287 U.S. 435, 447 (1932) (quoting

United States v. Kirby, 74 US. (7 Wall.) 482, 486-87 (1868));

99

given the court’s ruling, plaintiffs testimony that he

was “continuously exposed to diesel exhaust inside

the locomotive cab since the first day he ‘hired out,”

Pet. App. at 30a, would call for a conclusion that

virtually al! the locomotives that plaintiff operated

violated the regulation. However, FRA, the agency

that monitors railroad compliance with = safety

regulations, has never found such mass violations of

§229.43(a).

The lower court’s failure to defer to the FRA’s

interpretation of its safety regulation significantly

affects the outcome of a FELA case. Violation of such

a regulation obviates the need for the plaintiff to

prove negligence. Urie v. Thompson, 337 U.S. 163,

174 (1949). Because the lower court failed to offer a

reasoned analysis of $229.43(a), and given the poten-

tial impact that violation of the regulation can have

on the outcome of a FELA case, this Court should

grant the petition and provide guidance to lower

courts regarding the circumstances that require a

court to defer to an agency’s interpretation of its own

safety regulations.

United States v. Katz, 271 U.S. 354, 357 (1926), United States v.

Ryan, 284 U.S. 167, 175 (1931); see also Hawau v. Mankich,

190 U.S. 197, 214 (1903) (“Nothing is better settled than that

statutes should receive a sensible construction, such as will

effectuate the legislative intention, and, if possible, so as to

avoid an unjust or an absurd conclusion.” (quoting Lau Ow Bew

vu. United States,144 U.S. 47, 59 (1892)).

23

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

LOUIS P. WARCHOT

DANIEL SAPHIRE *

ASSOCLATION OF AMERICAN

RAILROADS

425 3rd Street, S.W.

Washington, D.C. 20024

(202) 639-2505

DSaphire@aar.org

* Counsel of Record Counsel for Amicus

August 13, 2010