Petition for Writ of Certiorari — CSX Transportation Transportation, Inc. v. Rivenburgh (No. 08-269)

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08-269 AUG 28 2008

() OPFICE OF THE CLERK

Wililass KC. Suter, Oterk

No.

Jn the Supreme Court of the United States

CSX TRANSPORTATION, INC.,

Petitioner,

Vv.

RICHARD RIVENBURGH,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

LAWRENCE R. BAILEY, JR. EVAN M. TAGER

NOREEN DEWIRE DAN HIMMELFARB

GRIMMICK Counsel of Record

Hodgson Russ LLP Mayer Brown LLP

677 Broadway, Suite 301 1909 K Street, NW

Albany, NY 12207 Washington, DC 20006

(518) 465-2333 (202) 263-3000

Counsel for Petitioner

WIL SON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

Under the Federal Employers’ Liability Act

(FELA), 45 U.S.C. §§ 51-60, railroad employees may

recover for workplace injury or death “resulting in

whole or in part from the negligence” of the railroad.

Id. § 51. This case presents two related questions on

which the lower courts are deeply divided:

1. Whether there is a relaxed standard of causa-

tion under FELA.

2. Whether there is a relaxed standard of negli-

gence under FELA.

RULE 29.6 STATEMENT

Petitioner CSX Transportation, Inc. has a parent

company, CSX Corporation, which 1s publicly traded.

No other publicly held company owns more than 10

percent of petitioner's stock. .

TABLE OF CONTENTS

Page

RUF ice 6B DUNGD MRE ER ON FED occ essccccessccssccccnsbssecntccacnonns i

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STATUTORY PROVISIONS INVOLVED ................ 1

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oN I ii wat cas Riaais chine n ale cnmiawuaisastaaone uencaeaiuueh 4

A. Statutory Background ...................... jpeekabonaies 4

ee Dee mE

C. Proceedings in the District Court ...................5

D. The Court of Appeals’ Decision....................... 6

REASONS FOR GRANTING THE PETITION ........ 8

A. The Decision Below Conflicts With De-

cisions Of Other Federal Courts Of Ap-

peals And State Courts Of Last Resort .......... 9

1. The lower courts are divided on

whether there is a relaxed standard

of causation under FELA......................... ll

The lower courts are divided on

whether there is a relaxed standard

of negligence under FELA ....................... 14

TABLE OF CONTENTS—continued

Page

B. The Decision Below Is Incorrect ................... 15

1. The court below erred in holding

that there is a relaxed standard of

causation under FELA.........................000 16

2. The court below erred in holding

that there is a relaxed standard of

- negligence under FELA ........................... 23

C. The Questions Presented Are Recurring

Ones Of Exceptional Importance .................. 27

Re OMe UE Saha cag ius snp a cavadoidncde tababbannaecton cendnd 31

APPENDIX A: Order of the United States

Court of Appeals for the Second Circuit

ON I Ni Scacchi aitks Seeencineuhedanscvanssoness la

APPENDIX B: Decision and Order of the

United States District Court for the

Northern District of New York (Sept. 5,

I ahs rs ick Sak vik ea aA ARES TAK naan sped 10a

APPENDIX C: Statutory Provisions Involved ......28a

TABLE OF AUTHORITIES

Page(s)

CASES

Albin v. Illinois Cent. R.R. Co.,

660 N.E.2d 994 (Ill. App. 4th Dist. 1995)........... 13

American Dredging Co. v. Miller,

BE a a sac asicih sy shan hava) Gackt sduchnacaanceea 28

Anderson v. Atchison, Topeka & Santa Fe Ry. Co.,

a es a icin tho kn cas pnspeuns csbaausccsanatencekince 24

Bavaro v. Grand Victoria Casino,

No. 97 C 7921, 2001 WL 289782 (N.D. Ill. Mar.

ey NE Ni erAR Sg i Cis Vailas ahindhina ribeavdbunaa can seratoered 15

Beeber v. Norfolk S. Corp.,

754 F. Supp. 1364 (N.D. Ind. 1990)..................... eee 13

Boyt v. Grand Trunk W. R.R.,

592 N.W.2d 426 (Mich. App. 1998)...............eceeeeee ees 13

Brabeck v. Chicago & Nw Ry. Co.,

SR Or ee ee A UENNE © MRED Si ccs cassis cccesavccssdasssansixns 12

Brady v. S. Ry. Co.,

ee eNO Beat ckiastvkcsicnncssissncudsosulessaxtbanens ches 18

Briggs v. Kansas City S. Ry. Co.,

9235S. W.26 906 (Mo. App. 1996).........0...5.0.ccesssceesess 14

Brooks v. Brennan,

625 N.E.2d 1188 (Ill. App. Sth Dist. 1994) ....0.00.0...... 13

Carter v. Atlanta & St. Andrew's Bay Ry. Co.,

ee Resets Ie TE Baki thi ceadeynskas\seichcddackasqnint 18, 21

Chapman v. Union Pac. R.R.,

BGT PE, Wy 2b SO INO FGA D inn cvincc ccc cccccecccsccccssdceeses 12

Churchwell v. Bluegrass Marine, Inc.,

AE FF Be CO Es LOO) esi ccceccccccccencsovcccosessecnenns 11

Consol. Rail Corp. v. Gottshall,

RE a a ROE cia vackietncbchsvetsacuvacaei 15, 19, 22, 23

TABLE OF AUTHORITIES—continued

Page(s)

Coray v. S. Pac: Co., 335:U.S. 520 C1949) ..........0008.. 18, 21

Crane v. Cedar Rapids & lowa City Ry. Co.,

PS AE Is iiisi cei aotashedsiascndaccevsonsssiseasyencs 22

ERIS 0 GE, 2O FAIS. BOF LEDZS) occ cceceicccccecesccens. 17,-31

Dickerson v. Staten Trucking, Inc.,

428 F. Supp. 2d 909 (E.D. Ark. 2006) ................ pees 13

Dutton v. S. Pac. Transp.,

PU UE CO, CP TIED 65 soca ncsncecssccsscanscssensseuscee 11

Estate of Larkins v. Farrell Lines, Inc.,

Re PIERO, BUND coke cscs aise scccencnssscsensosseenes 14

Fashauer v. New Jersey Transit Rail Operations,

ee oe Ne a ED ic ckckdnsdcnnscasccesesnscseceseeseci 24

Fontaine v. Nat'l R.R. Passenger Corp.,

ee PG PN ERE 88 PT Pvc cca cnerusecccsvscnssscccteveesece 13

Gallose v. Long Island R.R. Co.,

Ue ae MES BPD ccs sn cusvccsensccacscnsnesssassoaecss 30

Gardner v. CSX Transp., Inc.,

Ee Es HRs EFT a, ccc cncnenccsccssannccesnasaseess 12

Gautreaux v. Scurlock Marine, Inc., :

107 F.3d 331 (Sth Cir. 1997) (en banc).......... 14, 24, 28

Glass v. Birmingham S. RR. Co..

ee I ET CIs BED esc case eccsscccneseccscscscnccssansnne 11

Grothusen v. Nat'l R.R. Passenger Corp.,

re wa SI, POU CELE PR. LPBE) ccescesccccsccscccnceccnness 12

Hall v. Norfolk S. Ry. Co.,

Bae Os ea hart COED. GOR. EOD3S),.....0...ccerccccsancenss 13

Hamilton v. CSX Transp..,

Ee Te CRs FRET, DOUOD ins visas sncsesescsescnasevns 13

TABLE OF AUTHORITIES—continued

Page(s)

Higgins v. Metro-North R.R. Co.,

ee a Es IED oss ecisasccnescocseceunsensesoqetsssend 9

Hines v. Consol. Rail Corp.,

PW cE MAGEE TAT, BOL) svascsvnsssccccccuvcscavessssusessbic 14

Jackson v. Kansas City S. Ry.,

ge ee ee eS Lc) aa ener eone er 13

Kelson v. Central of Ga. R.R. Co.,

poise One Ro ee eb ) ) ae ac 13

Kernan v. American Dredging Co.,

Pe aaa HET IE Nein ccadcsetcisvabsscesesascestiscnones 26, 28

Lang v. New York Cent. R.R. Co.,

Pe eA ED Bcbct ti salisns én sesdccnssevesensvunsssssacserehaes 17

Lehman v. Nat'l R.R. Passenger Corp.,

Se eS >) ee 13

Leveck v. Consol. Rail Corp.,

498 N.E.2d 529 (Ill. App. Ist Dist. 1986) .................. 13

Lynch v. Decker, No. CIV L-91-1864, 1994 WL

PE CaP PE TRAN By CPE Jescccncsevesecsccccessccescenaes 13

Magelky v. BNSF Ry. Co.,

OT Fy BOs 20 GOe CPL. 2007)... .ccccceccccssccccevesens 13

Marazzato v. Burlington N. R.R. Co..,

BS ide Me CI, TED onccccccccscccnccccecccscccncesencssec 12

Marchica v. Long Island R.R. Co.,

cE RRL ee oe ee | | | Shenae 7, a 29

McCalley v. Seahoard Coast Line RR. Co.,

NE A BEI, SPOR Nei Nosiisscowiccidncccussvavesivsedecennens 1]

Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v.

CE Ue Ghee Me ID ka dd cdncndh scuaidcaccedccdeuncaces 17

Vill

TABLE OF AUTHORITIES—continued

Page(s)

Montgomery v. CSX Transp., Inc.,

Ne SO Eg UE Ri cvdnscnsctincssesivescvcescescass 14,15

Moore v. Chesapeake & Ohio Ry. Co.,

493 F. Supp. 1252 (S.D. W. Va. 1980) .............clecceees 13

Mullahon v. Union Pac. R.R.,

a Ge oO AR Ss) 14

New York Cent. R.R. Co. v. Ambrose,

I NI isc oi cae ssbuveacssvcscalecsccosvsvassauacentes 17

Nicholson v. Erie R.R. Co..

ee PED RAs: FWD) ccbccccecnskccccvcaccncecscevscssusns 10

Norfolk & W. Ry. Co. v. Ayers,

NG NED essa ch shat siaesaceevtiws sicacnvdcsacnqabesnes 15

Norfolk & W. Ry. Co. v. Earnest,

I cigs vi csivk cos cvaedosscasdsunvussdnvuceeovues 17

Norfolk & W. Ry. Co. v. Hiles,

eee aisLasevnnsecdnciadswnteascagtaackauess 9

Norfolk & W. Ry. Co. v. Liepellt,

ee kaa vanancuvesasecvausacsdioacbielin’ 3

Norfolk S. Ry. Co. v. Sorrell,

i ED ii ovcankvabike vviteneresasaensscs passim

Northwestern Pac. R.R. Co. v. Bobo,

a ss packed anwonbunncavauvaass 18

O'Donnell v. Elgin, Joliet & FE. Ry. Co..

ee ec cascliguasienakiaimaiessdesarsdeosdues 18

Ogelsby v. S. Pac. Transp. Co.,

Fe I OE, FPP idvnvacacicinsscccnscasdecndevencvesuned 1]

Page v. St. Louis Sw Ry. Co.,

ee Oe Rs BOI) vn bi cincactsisisaconedancvashues 9, 25

TABLE OF AUTHORITIES—continued

Page(s)

Page v. St. Louis Sw Ry. Co.,

Se Fee ee E abatischsessoccncncsccnccescencsseces 11

Phillips v. Illinois Cent. R.R. Co.,

TOF SOB Cae CI ROOD henesnscccncnsssccccccrecsece 15

Pry v. Alton & S. Ry. Co.,

me By ee 0) ae eS 14

Reed v. Pennsylvania Rd. Co.,

Fe RE Da sissisccescissccsnnsvesscescscsens 12

Robinson v. CSX Transp.,

40 A.D.3d 138406. ¥. App. 2007) .................02......... 14

Rogers v. Missouri Pac. R.R. Co.,

FO arias acess sesacccccncccccces passim

Seeberger v. Burlington N. R.R. Co.,

FE 2 Fe er ia svainisnssonssccssccesssccesecees 14

Sievert v. CSX Transp., Inc.,

No. C10200504624, 2008 WL 3819782 (Ohio

Ce: ery ee I ook, vce aces.................. 31

Snipes v. Chicago, Cent. & Pac. R.R. Co.,

BB4 TEE ee iivcrenccccanscccscvcscsccesessces 12

Sosa Vv. Alvarez-Machain,

SO Le ieira bani daséasdncnnsensssceccccess 20

St. Louis, Iron Mountain & S. Ry. Co. v. McWhirter,

LEG Fes ess in an incedasssissccscesccccceces 17

St. Louis-S.F. Ry. Co. v. Mitts,

CEN re, Fe Mita ba treinakstsenecsvencscssccccscceses 17

Stale, v. cowa Interstate K.R., Lid,

No. Civ. 3-99-C V-80169, 2001 WL 1678769

(S07. Se Pe ee aietncehascncsusessessncccnecssese. 13

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

ES2 FSG ore TE iparenakccsecsccsescccccccccenee. 1]

TABLE OF AUTHORITIES—continued

Page(s)

Swinson v. Chicago, St. Paul, Minneapolis & Omaha

ee er Fe eR a isne eh sass conve ovanctgeacnbelins 18

Syverson v. Consol. Rail Corp.,

PPE Se Be Ce Fe ivinec ca cicsecsccccsccccececnsiss 10, 29

Tennant v. Peoria & Pekin Union Ry. Co.,

FEE ey A arises cath wide avi tains davcnss tunes decagebuotne 18

Tiller v. Atl. Coast Line R.R. Co.,

FU Meee AES Pikivernsvevconsese ai iouwsesendulitin 18, 24, 27

Tufariello v. Long Island R.R. Co.,

GSB FSG BO ae Ch, ZOO) oo vse cceccccccciccsees 9, 10, 19, 26

Ulfik v. Metro-North Commuter R.R.,

FF Ce Es PPO icin saves csinccnssncccvonnscese 9, 10, 25

Urie v. Thompson,

SF A SE TD aacininsnsesivien bia tanavnrcnisoverre 15, 18, 24

Van Gorder v. Grand Trunk W. R.R., Inc.,

Fe Se BS POEs BOE) iiivv icici inncsccescsecsasasennenses 14

Vendetto v. Sonat Offshore Drilling Co.,

FED Rs BE SEF Ce BIT esi anon cn csn ve sccscrnenveseesnesotenans 14

Whitley v. S. Pac. Transp. Co.,

FEE FAO TEPC. PAOD. T9FS) wesc cccceccerncescsnsescssesaes 13

Wier v. Soo Line R.R. Co.,

No. 96 C 2094, 1997 WL 733909 (N.D. Ill. Nov.

Og ff RS eRe REE a ae ape Eo MNT tr a 13

Williams v. Long Island R.R. Co..,

AR © oe ee Ce iE BD ov vo cake kins ccasataceccetuers passim

Wills v. Amerada Hess Corp.,

PEF ee FE Oe ee EE ick sicencnseviinnscntentensecssusten 9, 28

Zarecki v. Nat'l R.R. Passenger Corp.,

914 F. Sapp. 1566 (IN.D. TN. 199G)...........scrcncesseosenns, 13

TABLE OF AUTHORITIES—continued

Page(s)

Zimmerman v. Long Island R.R.,

17 GLE Gs LOUIS nce scenvccccsstsecccesdctonaens 30

STATUTES

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

OS CTE SUESEORSE ce Seat gary FR OR esos aan i

NEE iasnit esc: sicdiveucieuckihehsneneanataduyncenens passim

EE I iii vi sanicd coh wend bebentnunennnsevaueeeuapen 4,15, 19

I ics crccnsksancushaondskvonsbimecesetehaghienbenene 15

A IEEE EEF Gite bsskse tun senbasenssbaichunviasesbedavserneneninds 15

I Marina cidiccinsekecinvcathcunecves snssusvecusvaraeunaie 4

Federal Safety Appliance Act, 49 U.S.C.

a vnis spn duninnecesstsanknontanesdasee 9

Fe, RFs FEO cv casncccinss ccischccvvstscrssnsversaas 28

rs i I ali hi sha nand oninxdwoscdoatsacasbcaspsveseene 1

OTHER AUTHORITIES

Annual Report of the Director: Judicial Business of

the United States Courts (2007) ..........ccccccsccccccescceeees 27

Brief of Association of American Railroads as

Amicus Curiae in Jones v. CSX Transp., Inc.,

No. 03-16231-A (11th Cir. Jan. 27, 2004).................. 27

1 Dan B. Dobbs, The Law of Torts (2001).................2.006. 16

H.R. Rep. No. 1386, 60th Cong., Ist Sess. (1908) .............. 3

W. Page Keeton et al., Prosser & Keeton on the Law

Fe TNs FUE cahccchctienstsandisdvevincecatinnescnns 16, 23

3 John D. Lawson, Rights, Remedies & Practice

RROPNitaxdccaeliS abet iin ckbupisoudiiansh matcmeied ncatncides 16

TABLE OF AUTHORITIES—continued

Page(s)

1 Thomas G. Shearman & Amasa A. Redfield, A

Treatise on the Law of Negligence (Sth ed. 1898) . 16, 23

PETITION FOR A WRIT OF CERTIORARI

Petitioner, CSX Transportation, Inc., respectfully

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Second Circuit in this case.

OPINIONS BELOW

The order of the court of appeals (App., infra, la-

9a) is unreported but is available at 2008 WL

2229018. The decision and order of the district court

denying petitioner’s motion for judgment as a matter

of law or, in the alternative, for a new trial (App., in-

fra, 10a-27a) is unreported but is available at 2006

WL 2571018.

JURISDICTION

The judgment of the court of appeals was entered

on May 30, 2008. The jurisdiction of this Court rests

on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The provisions of the Federal Employers’ Liabil-

ity Act, 45 U.S.C. §§ 51-60, are reproduced in the

Appendix. App., infra, 28a-32a.

INTRODUCTION

Under the Federal Employers’ Liability Act

(FELA or Act), railroad employees may recover for

workplace injury or death “resulting in whole or in

part from the negligence” of the railroad. 45

U.S.C. § 51. In Norfolk Southern Railway Co. v.

Sorrell, 127 S. Ct. 799 (2007), this Court addressed

the question whether the causation standard for a

defendant's negligence under FELA is the same as

that for a plaintiffs contributory negligence. The

Court applied the principle that “the elements of a

FELA claim are determined by reference to the

common law” unless the Act contains “express lan-

guage to the contrary,” id. at 805, and it held, consis-

tent with the common law, that the causation stan-

dard is the same for both parties, id. at 805-809. The

petitioner in Sorrell had also asked the Court to de-

cide what the standard of causation is, and to hold

that both the plaintiff and the defendant are re-

quired to establish proximate causation. The Court

declined to address that question, however, because

it had not granted certiorari to do so. Id. at 803-805.

Two separate concurring opinions in Sorrell did

address the standard of causation. In a concurrence

joined by Justices Scalia and Alito, Justice Souter

noted that there was a conflict among lower courts

on whether FELA requires a showing of proximate

causation or some lesser showing. 127 S. Ct. at

809 & n.*. Justice Souter’s concurrence went on to

explain that proximate causation was the common-

law rule before FELA; that FELA did not abrogate it:

and that, contrary to the view of some lower courts,

this Court’s decision in Rogers v. Missouri Pacific

Railroad Co., 352 U.S. 500 (1957), did not adopt a

different rule. 127 S. Ct. at 809-812. In a separate

opinion concurring in the judgment, Justice Gins-

burg, writing only for herself, took the position that

there is a relaxed standard of causation under FELA.

Id. at 812-815.

As the various opinions in Sorrell make clear, the

question whether the standard of causation under

FELA is proximate causation or some less stringent

standard is ripe for definitive resolution by this

Court. Unlike Sorrell, this case squarely presents

that question. It also presents the closely related

question whether there is a relaxed standard of neg-

ligence under the Act. The Second Circuit held be-

low that FELA “creat[es] a relaxed standard for neg-

ligence as well as causation” and that, “[m]easured

by these standards,” the jury’s verdict in respon-

dent’s favor was supported by sufficient evidence.

App., infra, 3a.

This Court should grant certiorari on both ques-

tions. First, federal courts of appeals and state

courts of last resort are deeply divided both on the

causation question (as Justice Souter observed in

Sorrell) and on the negligence question (as the Sec-

ond Circuit itself acknowledged in a prior case). Sec-

ond, the “relaxed” standards adopted by the Second

Circuit cannot be reconciled with the interpretive

methodology consistently employed by this Court (in-

cluding in Sorrell)—that FELA incorporates com-

mon-law principles unless it expressly provides oth-

erwise—and the Second Cuircuit’s standards are

therefore erroneous. Third, the standards of causa-

tion and negligence have recurring importance, be-

cause those clements are potentially at issue in every

FELA case, at every stage of the litigation, as well as

in every case brought under the Jones Act, which in-

corporates the judicially developed principles of li-

ability under FELA.

Virtually every day, in federal and state courts

across the Nation, similarly situated parties in cases

governed by the same federal statute—FELA—are

subjected to different rules on two elements of the

claims at issue solely because of the happenstance of

where the suit was filed. That is an intolerable state

of affairs, all the more so because one of the very

purposes of FELA was to “create uniformity through-

out the Union.” Norfolk & W. Ry. Co. v. Liepelt, 444

U.S. 490, 493 n.5 (1980) (quoting H.R. Rep. No. 1386,

60th Cong., 1st Sess. 3 (1908)). The Court should not

allow it to persist.

STATEMENT

A. Statutory Background

Enacted in 1908, FELA provides a compensation

scheme for injuries sustained by railroad employees

in the workplace. The Act provides for concurrent

jurisdiction of state and federal courts, 45 U.S.C.

§ 56, but substantively FELA actions are governed

by federal law, Norfolk S. Ry. Co. v. Sorrell, 127

S. Ct. 799, 805 (2007). State-law remedies are pre-

empted. [bid.

Unlike workers’ compensation laws, which typi-

cally provide relief without regard to fault, FELA re-

quires an injured railroad employee to prove negli-

gence. Section 1 of FELA provides that:

Every common carrier by railroad * * * shall

be lable in damages to any person suffering

injury while he is employed by such car-

rier * * * , or, in case of the death of such em-

ployee, to his or her personal representative,

* * * for such injury or death resulting in

whole or in part from the negligence of any of

the officers, agents, or employees of such car-

rier.

45 U.S.C. § 51. FELA adopts a regime of compara-

tive negligence. Under Section 3 of the Act, “the fact

that the employee may have been guilty of contribu-

tory negligence shall not bar a recovery, but the

damages shall be diminished by the jury in propor-

tion to the amount of negligence attributable to such

employee.” Jd. § 53.

B. Factual Background

Respondent worked as a car inspector at peti-

tioner’s railroad yard in Selkirk, New York. Accord-

ing to respondent’s trial testimony, the following oc-

curred while he was repairing boxcars in the yard on

October 12, 2000: Respondent needed an acetylene

torch to perform a repair. After inspecting the torch

and observing nothing unusual, he turned on the

oxygen tank and struck the igniter. The torch made

a loud noise. Respondent examined the torch again

and noticed that slag—a byproduct of melting

metal—was embedded on the tip of the torch. Re-

spondent later claimed that the noise caused hearing

loss in his right ear. App., infra, 1la-13a; Pet. C.A.

App. 919-928.

C. Proceedings in the District Court

Respondent sued petitioner under FELA, alleg-

ing that his hearing loss was the result of petitioner's

negligence. A jury found that petitioner was negli-

gent and that its negligence was a cause of respon-

dent’s injury. It also found that respondent was con-

tributorily negligent and that his negligence was 40

percent responsible for the injury. The jury awarded

$600,000 for past pain and suffering and $400,000

for future pain and suffering, for a total damages

award of $1,000,000. The award was reduced to

$600,000, to account for respondent's comparative

negligence, and was further reduced to $553,150, the

present value of that amount. Pet. C.A. App. 1-3:

Pet. C.A. Exh. App. 194-196; App., infra, 8a n.6.

Petitioner filed a motion for judgment as a mat-

ter of law or, in the alternative, for a new trial, chal-

lenging, among other things, the sufficiency of the

evidence supporting the jury’s finding of liability.

The district court denied the motion. App., infra,

10a-27a. The court explained that “[t]he Second Cir-

cuit construes [FELA], ‘in light of its broad remedial!

nature, as creating a relaxed standard for negligence

as well as causation.” Jd. at 16a (quoting Williams

v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir.

1999)). Applying that “relaxed” standard, the court

ruled that “the evidence was sufficient to support the

jury’s conclusion that CSX was lable for Riven-

burgh’s injury.” Jd. at 18a-19a.

D. The Court of Appeals’ Decision

Petitioner appealed. The court of appeals af-

firmed the liability component of the district court’s

judgment but vacated the damages component.

App., infra, la-Qa.

1. As to liability, the court of appeals rejected all

of petitioner's arguments, including, as_ relevant

here, that there was insufficient evidence to support

the jury’s findings of negligence and causation. App.,

infra, 2a-4a. Petitioner argued that there was insuf-

ficient evidence of foreseeability, and therefore of

negligence, because respondent (1) offered no evi-

dence that the slag he observed on the torch after he

heard the noise had been there for any appreciable

time (if at all) before he heard it; (2) offered no evi-

dence that there had been any prior instance in

which a torch operated by an employee of petitioner

made a loud noise; and (3) offered no evidence that

there had been any prior instance in which an em-

ployee of petitioner sustained hearing loss from the

use of a torch. Pet. C.A. Br. 33-40. Petitioner argued

that there was insufficient evidence of causation be-

cause the jury could only speculate that there was

slag on the tip of the torch before respondent heard

the loud noise. Jd. at 21, 25, 30-33.

In rejecting these arguments, the court of ap-

peals relied on the same principle on which the dis-

trict court had rehed: that FELA “creatfes] a relaxed

standard for negligence as well as causation.” App.,

infra, 3a (quoting Williams, 196 F.3d at 406). The

court of appeals held that, “[m]Jeasured by these

standards,” the jury’s verdict in favor of respondent

was supported by sufficient evidence. I[bid.

The court found sufficient evidence of negligence

because petitioner “trained its employees to inspect

and clean acetylene torches prior to using them” and

respondent testified that his supervisors “were pres-

suring him to expedite his work.” App., infra, 4a

(quoting district court’s decision). The court found

sufficient evidence of causation because respondent

and a co-worker testified about “the dangers of the

acetylene torches and the possible consequence of

failing to clean and inspect them” and respondent

testified that “he saw slag on the tip of the torch af-

ter hearing the loud noise.” Jd. at 3a-4a (quoting dis-

trict court’s decision).

2. As to damages, the court of appeals found that

the jury’s award was excessive. The court concluded

that a reasonable award could not exceed $400,000

(consisting of $240,000 for past pain and suffering

and $160,000 for future pain and suffering) and then

reduced that amount by 40 percent—to $240,000—to

account for respondent's comparative negligence.

The court remanded for a new trial on damages,

while giving respondent the option of forgoing trial if

he agreed to remit any damages above $240,000.

The court of appeals directed respondent to inform

the district court of his intent to remit or retry, and

it directed the parties, in the event respondent de-

cided to remit, to agree on an appropriate 1 duction

to present value. App., infra, 5a-Qa.

Respondent has since informed the district court

that (1) he has decided to remit and (2) the parties

have agreed on a 2% reduction to present value.

Resp. Am. Notice of Intent to Remit 1. As a conse-

quence, the total adjusted damages award is

$221,832. Id. at 2. As a further consequence, there

will be no retrial on damages and the only remaining

issue is whether the jury permissibly found in re-

spondent’s favor on liability.

REASONS FOR GRANTING THE PETITION

This case presents the question left open in

Norfolk S. Ry. Co. v. Sorrell, 127 S. Ct. 799 (2007),

and addressed in two concurring opinions in that

case: whether, in an action under FELA, a plaintiff

must prove that the defendant’s negligence was the

proximate cause of the injury, or instead, as the

court of appeals held here, need satisfy only a “re-

laxed” standard of causation. This case also presents

the closely related question whether there is a re-

laxed standard of negligence under the Act. The

lower courts are deeply divided on both questions;

the court below has resolved both questions incor-

rectly, in disregard of the settled interpretive princi-

ple that FELA incorporates common-law rules unless

it expressly provides otherwise; and both questions

have recurring importance, because they arise in

every FELA (and every Jones Act) case. This Court

should grant certiorari to establish uniform stan-

dards for the two basic elements of a FELA claim.

A. The Decision Below Conflicts With Deci-

sions Of Other Federal Courts Of Ap-

peals And State Courts Of Last Resort

The basic elements of a FELA cause of action are

“(1) negligence, i.e., the standard of care, and (2) cau-

sation, i.e., the relation of the negligence to the in-

jury.” Norfolk S. Ry. v. Sorrell, 127 S. Ct. 799, 807

(2007) (quoting Page v. St. Louis Sw Ry. Co., 349

F.2d 820, 823 (5th Cir. 1965)).! The court below held

that FELA “creatfes] a relaxed standard for negli-

gence as well as causation” and that, “[m]Jeasured by

these standards,” the jury’s verdict in favor of re-

spondent was supported by sufficient evidence. App.,

infra, 3a. For the proposition that there is a “re-

laxed” standard for both elements, the court of ap-

peals relied on its prior decision in Williams v. Long

Island R.R. Co., 196 F.3d 402, 406 (2d Cir. 1999),

which in turn relied on Ulfik v. Metro-North Com-

muter R.R., 77 F.3d 54, 58 n.1 (2d Cir. 1996). App.,

infra, 3a. Williams and Ulfik stand in a long line of

published decisions in which the Second Circuit has

held that FELA embodies a relaxed standard of cau-

sation, negligence, or both.?

! A FELA plaintiff need not prove negligence, and need only

prove causation, when the defendant is shown to have violated

certain safety statutes (e.g., the Federal Safety Appliance Act,

49 US.C. §§ 20301-20306). Norfolk & W. Ry. Co. v. Hiles, 516

U.S. 400, 409 (1996).

2 See also Tufariello v. Long Island R.R. Co., 458 F.3d 80, 87

(2d Cir. 2006) (causation and negligence standards are

“lighter”); Wills v. Amerada Hess Corp., 379 F.3d 32, 47 (2d Cir.

2004) (causation standard is “relaxed”); Higgins v. Metro-North

R.R. Co., 318 F.3d 422, 426-427 (2d Cir. 2003) (negligence stan-

dard is “relaxed”):; Marchica v. Long Island R.R. Co., 31 F.3d

1197, 1207 (2d Cir. 1994) (causation standard is “less strin-

What does it mean to say that the standards of

causation and negligence in FELA cases are “re-

laxed”? The Second Circuit has answered that ques-

tion in prior cases. As to causation, the court has

said that, “to impose liability on the defendant, the

negligence need not be the proximate cause of the in-

jury,” Nicholson v. Erie R.R. Co., 253 F.2d 939, 940

(2d Cir. 1958), and that “the traditional [common-

law] concept of proximate cause [has been] sup-

planted,” Marchica v. Long Island R.R. Co., 31 F.3d

1197, 1207 (2d Cir. 1994). As to negligence, the court

has said that the employer “is potentially responsible

for risks that would be too remote to support liability

under common law,” Syverson v. Consol. Rail Corp.,

19 F.3d 824, 826 (2d Cir. 1994); accord Ulftk, 77 F.3d

at 58; Williams, 196 F.3d at 407; Tufariello v. Long

Island R.R. Co., 458 F.3d 80, 87 (2d Cir. 2006), and

that, although negligence under FELA is governed

by the principle of foreseeability, which “determine[s]

whether or not a defendant is required to guard

against a particular risk,” foreseeability is “construed

somewhat more liberally in FELA cases,” Ulftk, 77

F.3d at 58 n.1.

Under the Second Circuit’s “relaxed” standards

of negligence and causation, therefore, a FELA de-

fendant’s duty of care extends to risks more remote

than those reached by the common law, and a FELA

defendant that breaches its duty of care is liable even

when the breach is not the direct cause of the plain-

tiffs injury. As explained below, those “relaxed”

gent”); Syverson v. Consol. Rail Corp., 19 F.3d 824, 825-826 (2d

Cir. 1994) (causation standard is “substantially diluted” and

negligence standard is “relaxed”); Nicholson v. Erie R.R. Co.,

253 F.2d 939, 941 (2d Cir. 1958) (causation standard is “mod-

est’).

standards have been adopted by several lower courts

in addition to the Second Circuit, but they have been

squarely rejected by many others, which apply ordi-

nary common-law principles of negligence and causa-

tion.

1. The lower courts are divided on whether

there is a relaxed standard of causation

under FELA

As Justice Souter noted in his Sorrell concur-

rence, a number of federal courts of appeals and

state courts of last resort “have taken * * * proximate

cause out of the concept of defendant lability under

FELA.” 127 S. Ct. at 809 n.*; see also id. at 804

(opinion of the Court). In addition to the Second Cir-

cuit, the Fifth, Sixth, Ninth, and Tenth Circuits, and

the Supreme Courts of Alabama, Florida, and Texas,

have determined that proximate causation is not re-

quired.* At the same time, as Justice Souter also

3 See Page v. St. Louis Sw Ry. Co., 312 F.2d 84, 89 (5th Cir.

1963) (there has been “la] definite departure from traditional

common-law tests of proximate causation as applied to

[FELA]”); Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898,

907 (6th Cir. 2006) (plaintiff “need not establish proximate cau-

sation”); Ogelsby v. S. Pac. Transp. Co., 6 F.3d 603, 609 (9th

Cir. 1993) (“proximate cause’ is not required to establish causa-

tion under the FELA”); Summers v. Missouri Pac. R.R. Sys.,

132 F.3d 599, 606 (10th Cir. 1997) (“analyz[ing] liability under

the FELA in terms of proximate causation” has been “defini-

tively abandoned”): Glass v. Birmingham S. R.R. Co.. 905 So.2d

789, 796 (Ala. 2004) (“Eschewing a traditional proximate-cause

analysis, the FELA embraces an extremely broad standard of

causation.”); McCalley v. Seaboard Coast Line R.R. Co., 265

So.2d 11, 15 (Fla. 1972) (‘the concept of proximate cause no

longer has any place in an action under [FELA for a violation

of] the Federal Safety Appliance Act”); Dutton v. S. Pac.

Transp., 576 S.W.2d 782, 785 (Tex. 1978) (common law ‘proxi-

noted, “several State Supreme Courts have explicitly

or implicitly espoused the opposite view.” Jd. at 809

n.*; see also id. at 804 (opinion of the Court). The

Supreme Courts of Iowa, Minnesota, Montana, Ne-

braska, and Ohio, and the Supreme Court of Appeals

of West Virginia, have all determined that proximate

causation is required.’

Federal district courts in other circuits and in-

termediate state appellate courts in other States are

likewise divided on the question.» Indeed, as the

mate cause’ is not a proper test of the evidence in F.E.L.A.

cases’).

4 See Snipes v. Chicago, Cent. & Pac. R.R. Co., 484 N.W.2d

162, 164 (lowa 1992) (“Recovery under the FELA requires an

injured employee to prove that the defendant employer was

negligent and that the negligence proximately caused, in whole

or in part, the accident.”); Brabeck v. Chicago & Nw Ry. Co.,

117 N.W.2d 921, 923 (Minn. 1962) (“violation of an operating

rule may impose liability on an employer if it is the proximate

cause of the accident”); Marazzato v. Burlington N. R.R. Co.,

817 P.2d 672, 675 (Mont. 1991) (“The plaintiff [in a FE LA case]

has the burden of proving that. defendant's negligence was the

proximate cause in whole or in part of plaintiffs [death].”);

Chapman v. Union Pac. R.R., 467 N.W.2d 388, 395 (Neb. 1991)

(“To recover under the [FELA], an employee must prove the

employer's negligence and that the alleged negligence is a

proximate cause of the employee's injury.”); Reed v. Pennsyl-

vania Rd. Co., 171 N.E.2d 718, 721 n.3 (Ohio 1961) (“In order to

support recovery {under FELA] for an injury claimed to have

been caused by a violation of the Federal Safety Appliance Act,

such violation must amount to a proximate cause of such injury,

although it need not be t/te proximate cause thereof.”); Gardner

v. CSX Transp., Inc., 498 S.E.2d 473, 483 (W. Va. 1997) (“[T]o

prevail on a claim under [FELA], a plaintiff employee must es-

tablish that the defendant employer acted negligently and that

such negligence contributed proximately, in whole or in part, to

plaintiffs injury.”).

5 Compare, e.g., Grothusen v. Nat'l R.R. Passenger Corp., 603

F. Supp. 486, 488 n.4 (E.D. Pa. 1984) (proximate cause not re-

concurrences in Sorrell demonstrate, disagreement

about the standard of causation extends to members

of this Court. Compare 127 S. Ct. at 809-812

(Souter, J., joined by Scalia and Alito, JJ., concur-

ring), with id. at 812-815 (Ginsburg, J., concurring in

the judgment). So widespread is the conflict that dif-

ferent causation standards are applied in FELA

cases, not only across States, but also within certain

States—Ohio and Montana, for example—depending

on whether the suit is filed in state or federal court.

quired); Zarecki v. Natl R.R. Passenger Corp., 914 F.

Supp. 1566, 1571 (N.D. Ill. 1996) (Castillo, J.) (same); Beeber v.

Norfolk S. Corp., 754 ¥. Supp. 1364, 1372 (N.D. Ind. 1990)

(same); Staley v. Iowa Interstate R.R., Ltd., No. Civ. 3-99-CV-

80169, 2001 WL 1678769 at *2 (S.D. lowa Aug. 15, 2001)

(same); Magelky v. BNSF Ry. Co., 491 F. Supp. 2d 882, 887

(D.N.D. 2007) (same); Hall v. Norfolk S. Ry. Co., 829 F. Supp.

1571, 1578 (N.D. Ga. 1993) (same); Fontaine v. Natl R.R. Pas-

senger Corp., 54 Cal. App. 4th 1519, 1525 (1997) (same); Leveck

v. Consol. Rail Corp., 498 N.E.2d 529, 535 (Ill. App. lst Dist.

1986) (same); Albin v. Illinois Cent. R.R. Co., 660 N.E.2d 994,

999 (Ill. App. 4th Dist. 1995) (same); Hamilton v. CSX Transp.,

208 S.W.3d 272, 278 (Ky. App. 2006) (same); Jackson v. Kansas

City S. Ry., 619 So.2d 851, 858 (La. App. 1993) (same); Boyt v.

Grand Trunk W. R.R., 592 N.W.2d 426, 431 (Mich. App. 1998)

(same); Whitley v. S. Pac. Transp. Co., 902 P.2d 1196, 1201 (Or.

App. 1995) (same), with, e.g., Lynch v. Decker, No. CIV L-91-

1864, 1994 WL 902363 at *3 (D. Md. Aug. 19, 1994) (proximate

cause required); Moore v. Chesapeake & Ohio Ry. Co., 493 F.

Supp. 1252, 1265 (S.D. W. Va. 1980) (same); Wier v. Soo Line

R.R. Co., No. 96 C 2094, 1997 WL 733909 at *2 (N.D. Ill. Nov.

18, 1997) (Hart, J.) (same); Dickerson v. Staten Trucking, Inc..,

428 F. Supp. 2d 909, 915 (E.D. Ark. 2006) (same); Kelson v.

Central of Ga. R.R. Co., 505 S.E.2d 803, 808 (Ga. App. 1998)

(same); Brooks v. Brennan, 625 N.E.2d 1188, 1193 (Ill. App. 5th

Dist. 1994) (same); Lehman v. Natl R.R. Passenger Corp., 661

A.2d 17, 19 (Pa. Super. 1995) (same).

2. The lower courts are divided on whether

there is a relaxed standard of negligence

under FELA

There is also disagreement about whether there

is a relaxed standard of negligence under FELA. In

addition to the Second Circuit, the Third, Fourth,

and Ninth Circuits, and the Supreme Court of Wash-

ington, have determined that there is. In contrast,

the Fifth and Sixth Circuits, and the Louisiana and

South Carolina Supreme Courts, have held that

there is not.‘ Federal district courts and intermedi-

ate state appellate courts are likewise divided on

whether FELA’s negligence standard is relaxed.§

6 See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir.

1991) (FELA has “more lenient standard for determining negli-

gence”); Estate of Larkins uv. Farrell Lines, Inc., 806 F.2d 510,

512 (4th Cir. 1986) (FELA imposes “light burden of proof on

negligence”); Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1364

(9th Cir. 1995) (“relaxed standard applies to * * * negligence”);

Seeberger v. Burlington N. R.R. Co., 982 P.2d 1149, 1152 (Wash

1999) (“relaxed standard * * * applies to breach of duty”).

7 See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335

(5th Cir. 1997) (en banc) (“The duty of care owed * * * retains

the usual and familiar definition of ordinary prudence.”); Van

Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 269 (6th

Cir. 2007) (“FELA does not Jessen a plaintiffs burden to prove

the elements of negligence.”); Vendelto v. Sonat Offshore Drill-

ing Co., 725 So. 2d 474, 478 (La. 1999) (“nothing in FELA * * *

suggests a variation from the ordinary standard of care used in

evaluating negligence in ordinary tort cases’); Montgomery v.

CSX Transp., Inc., 656 S.E.2d 20, 27-28 (S.C. 2008) (“federal

law has not * * * established a relaxed standard of negligence

(i.e., duty/breach) in FELA cases’).

8 Compare, ey., Pry v. Allon & S. Ry. Co., 598 N.E.2d 484, 499

(ill. App. 1992) (relaxed standard of negligence); Briggs v. Kan-

sas City S. Ry. Co., 925 S.W.2d 908, 913 (Mo. App. 1996) (same);

Robinson v. CSX Transp., 40 A.D.3d 1384, 1386 (N.Y. App.

The division of authority has been acknowledged by

courts on both sides of the conflict, including the Sec-

ond Circuit itself. See Williams, 196 F.3d at 406;

Montgomery v. CSX Transp., Inc., 656 S.E.2d 20, 26-

27 (S.C. 2008).

B. The Decision Below Is Incorrect

Under long-settled precedent of this Court, in-

cluding its recent decision in Sorrell, the elements of

a FELA claim, and the defenses to such a claim, are

determined “by reference to the common law,” unless

the Act includes “express language to the contrary.”

Sorrell, 127 S. Ct. at 805; accord, e.g., Norfolk & W.

Ry. Co. v. Ayers, 538 U.S. 135, 145 (2003); Consol.

Rail Corp. v. Gottshall, 512 U.S. 532, 543-544 (1994).

Express language in FELA abrogates several “com-

mon-law tort defenses that had effectively barred re-

covery by injured workers,” Gottshall, 512 U.S. at

542: the fellow-servant rule; contributory negligence;

assumption of risk; and exemption from the Act

through contract. 45 U.S.C. §§ 51, 53-55. Otherwise,

however, FELA is “founded on common-law con-

cepts.” Urie v. Thompson, 337 U.S. 163, 182 (1949).

Thus, finding no clear contrary indication in the

statutory text, the Court has followed the common

law in holding that FELA authorizes recovery of cer-

tain types of damages for occupational disease, id. at

182, negligent infliction of emotional distress,

Gottshall, 512 U.S. at 549-550, and genuine and se-

rious fear of developing cancer, Ayers, 538 U.S. at

149; in holding that FELA provides for joint and sev-

eral hability, ed. at 163-165; and in holding that

2007) (same), with, e.g., Bavaro v. Grand Victoria Casino, No

97 C 7921, 2001 WI. 289782 at *2 (N_D. Tl. Mar. 15, 2001) (no

relaxed standard of negligence); Phillips v. Illinois Cent. R.R.

Co., 797 So.2d 231, 239 (Miss. App. 2000) (same).

FELA applies the same causation standard to the de-

fendant’s negligence and the plaintiffs contributory

negligence, Sorrell; 127 S. Ct. at 805-809.

FELA likewise incorporates ordinary, not “re-

laxed,” standards of causation and negligence, be-

cause there is no language in the statute abrogating

the general common-law principles that govern those

elements. As explained below, the Second Circuit

erred in holding otherwise, thereby upsetting the

balance struck by Congress in the Act.

1. The court below erred in holding that

there is a relaxed standard of causation

under FELA

a. As Justice Souter noted in his Sorrell concur-

rence, “[p]rior to FELA, it was clear common law

that a plaintiff had-to prove that a defendant’s negli-

gence caused his injury proximately, not indirectly or

remotely.” 127 S. Ct. at 810; see, e.g., 3 John D. Law-

son, Rights, Remedies & Practice § 1028, at 1740

(1890); 1 Thomas G. Shearman & Amasa A. Redfield,

A Treatise on the Law of Negligence § 26, at 27 (5th

ed. 1898). That remains the common-law rule today.

See, e.g., 1 Dan B. Dobbs, The Law of Torts § 180, at

443 (2001); W. Page Keeton et al., Prosser & Keeton

on the Law of Torts § 41, at 263 (5th ed. 1984). The

proximate-cause requirement reflects the recognition

that, “[iJn a philosophical sense, * * * the causes of

an event go back to the dawn of human events, and

beyond”; that “any attempt to impose responsibility

upon such a basis would result in infinite hability for

all wrongful acts”; and that a “boundary must [there-

fore] be set to liability for the consequences of any

act.” Keeton, supra, § 41, at 264.

There is no language in FELA, much less any ex-

press language, that dispenses with the common-law

requirement of proximate causation. On the con-

trary, “FELA said nothing * * * about the familiar

proximate cause standard.” 127 S. Ct. at 810

(Souter, J., concurring). Accordingly, under a

straightforward application of the established inter-

pretive methodology, proximate causation is an ele-

ment of a FELA claim.

Consistent with that view, this Court has “recog-

nized and applied proximate cause as the proper

standard in FELA suits” virtually from the time of

the law’s enactment. 127 S. Ct. at 810 (Souter, J.,

concurring). Indeed, it has done so in more than 15

cases... The Court not only has recognized and ap-

9 See, e.g., Norfolk & W. Ry. Co. v. Earnest, 229 U.S. 114, 118-

119 (1913) Gury was “rightly” instructed that, “if the said engi-

neer did not exercise * * * reasonable care and caution and * * *

his failure so to do was the proximate cause of the accident,

then [you] must find for the plaintiff’); St. Louis, Iron Mountain

& S. Ry. Co. v. McWhirter, 229 U.S. 265, 280 (1913) (“it must be

shown that the alleged negligence was the proximate cause of

the damage”); Lang v. New York Cent. R.R. Co., 255 U.S. 455,

461 (1921) Gury’s verdict must be reversed because “the colli-

sion was not the proximate result of the defect”); Davis v. Wolfe,

263 U.S. 239, 243 (1923) (‘an employee cannot recover under

[FELA for a violation of] the Safety Appliance Act if the failure

to comply with its requirements is not a proximate cause of the

accident which results in his injury”); Minneapolis, St. Paul &

Sault Ste. Marie Ry. Co. v. Goneau, 269 U.S. 406, 410-411

(1926) (“As there was substantial evidence tending to show that

the defective coupler was a proximate cause of the acci-

dent * * * , the case was rightly submitted to the jury”); St.

Louts-S.F. Ry. Co. v. Mills, 271 U.S. 344, 347 (1926) (“Nor is

there evidence from which the jury might infer that petitioner's

[negligence] was the proximate cause of decedent's death.”):

New York Cent. R.R. Co. v. Ambrose, 280 U.S. 486, 489 (1930)

(plaintiff “failed to prove that the accident was proximately due

plied the requirement, but has stated it in the clear-

est possible terms. “In order to recover under

[FELA],” the Court has said, “it [i]s incumbent upon

{the plaintiff] to prove that [the defendant] was neg-

ligent and that such negligence was the proximate

cause in whole or in part of the * * * accident.”

Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S.

29, 32 (1944).

b. In adopting a “relaxed” standard of causation

in FELA cases, one less demanding than the com-

to the negligence of the company”); Northwestern Pac. R.R. Co.

v. Bobo, 290 U.S. 499, 503 (1934) (If petitioner was neg-

ligent * * * , there is nothing whatsoever to show that this was

the proximate cause of the unfortunate death.”); Swinson v.

Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 294 U.S. 529,

531 (1935) (‘The Safety Appliance Act * * * give[s] a right of re-

covery [under FELA] for every injury the proximate cause of

which was a failure to comply with a requirement of the act.”);

Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 67 (1943) (FELA

“leave[s] for practical purposes only the question of whether the

carrier was negligent and whether that negligence was the

proximate cause of the injury”); Brady v. S. Ry. Co., 320 US.

A76, 483 (1943) (“evidence of the unsuitablity of the rail for or-

dinary use * * * would justify a finding for {the plaintiffs], if the

defective rail was the proximate cause of the derailment”);

Coray v. S. Pac. Co., 335 U.S. 520, 523 (1949) (plaintiff “was en-

titled to recover if this defective equipment was the sole or a

contributory proximate cause of the decedent employee's

death’); Urie v. Thompson, 337 U.S. 163, 177 (1949) (complaint

stated claim under FELA because “[a]ll the usual elements

[we]re comprehended, including want of due or ordinary care,

proximate causation of the injury, and injury”); O'Donnell v. El-

gin, Joliet & E. Ry. Co., 338 U.S. 384, 390 (1949) (“a failure of

equipment to perform as required by the Safety Appliance Act

is * * * an actionable wrong, * * * for the proximate results of

which there is liability [under FELA]”); Carter v. Atlanta & St.

Andrew's Bay Ry. Co., 338 U.S. 430, 435 (1949) (“if the jury de-

termines that the defendant's breach is ‘a contributory proxi-

mate cause’ of injury, it may find for the plaintiff’).

mon-law rule of proximate causation, the Second

Circuit has relied on this Court’s decision in Rogers

v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957).

See, e.g., Tufariello v. Long Island R.R. Co., 458 F.3d

80, 87 (2d Cir. 2006); Willzams v. Long Island R.R.

Co., 196 F.3d 402, 406 (2d Cir. 1999); Marchica v.

Long Island R.R. Co., 31 F.3d 1197, 1207 (2d Cir.

1994). Indeed, virtually every court that has adopted

a relaxed standard of causation has done so in reli-

ance on Rogers. See Sorrell, 127 S. Ct. at 809 n.*

(Souter, J., concurring); note 3, supra. As the three-

Justice concurrence in Sorrell explained, however,

“Rogers did not address, much less alter, existing law

governing the degree of causation necessary for re-

dressing negligence as the cause of negligently in-

flicted harm.” Jd. at 809-10 (Souter, J., concurring).

Instead, “the case merely instructed courts how to

proceed when there are multiple cognizable causes of

an injury.” Jd. at 810.

4a) At common law, a plaintiffs contributory neg-

ligence “operated as an absolute bar to relief.”

Sorrell, 127 S. Ct. at 805. FELA abolished that de-

fense, replacing it with the doctrine of comparative

negligence. Gottshall, 512 U.S. at 542. Under the

Act, a defendant is liable for the plaintiffs injury or

death “resulting in whole or in part” from the defen-

dant’s negligence, 45 U.S.C. § 51 (emphasis added),

and the plaintiffs damages are reduced “in propor-

tion to the amount of negligence attributable to [the

defendant],” id. § 53.

Rogers concerned those principles. The Court

“granted certiorari * * * to establish the test for

submitting a case to a jury when the evidence would

permit a finding that an injury had multiple causes.”

Sorrell, 127 S. Ct. at 810 (Souter, J., concurring).

Quoting FELA’s comparative-negligence provisions,

Rogers, 352 U.S. at 506 n.12, 507 & n.14, the Court

explained that a railroad is liable if its negligence

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

the employee’s injury, regardless of whether the in-

jury also had “other causes, including the employee’s

contributory negligence,” id. at 506. The Court ulti-

mately held that the evidence in the case was suffi-

cient to support a finding that the defendant’s negli-

gence “played a part” in the plaintiffs injury. Jd. at

503.10

As Justice Souter observed in Sorrell, Rogers

thus addressed only “the occasional multiplicity of

causations.” 127 S. Ct. at 811. It did not address

“the necessary directness of cognizable causation.”

Ibid. The two concepts are distinct. “[A] given

proximate cause need not be, and frequently is not,

the exclusive proximate cause of harm.” Sosa v. Al-

varez-Machain, 542 U.S. 692, 704 (2004).

(i) Far from having rejected proximate causa-

tion, the Court in Rogers assumed that proximate

cause is an element of a FELA claim. For example,

the jury instructions in the case required a determ-

nation that the defendant’s negligence was the

“proximate cause” of the plaintiffs injuries. Rogers,

352 U.S. at 505 n.9. That aspect of the instruction

was “free of controversy” and one with which the

Court “took no issue.” Sorrell, 127 S. Ct. at 811

dant’s negligence “played any part, however small,” in plain-

uffs injury and jury question is presented if conclusion may

reasonably be drawn that defendant’s negligence “played any

part at all” in plaintiffs injury); id. at 508-510 (repeatedly stat-

ing that Congress intended juries to decide whether defendant's

negligence “played any part” in plaintiffs injury).

(Souter, J., concurring). Indeed, in sustaining the

jury’s finding of liability, the Court assumed that

“the verdict was obedient to the trial judge’s charge.”

Rogers, 352 U.S. at 505.

“The absence of any intent to water down the

common law requirement of proximate cause is [also]

evicent from the prior cases on which Rogers relied.”

Sorrell, 127 S. Ct. at 811 (Souter, J., concurring).

Those cases hold that a FELA plaintiff must estab-

lish proximate causation. Thus, for the proposition

that the test under FELA is whether the defendant’s

negligence “played any part, even the slightest,” in

producing the plaintiffs injury (352 U.S. at 506), the

Court cited Coray v. S. Pac. Co., 335 U.S. 520, 523

(1949), which holds that a FELA plaintiff may re-

cover if the defendant's negligence was “the sole or a

contributory proximate cause” of the injury. See

Rogers, 352 U.S. at 506 n.11. And for the proposition

that the question in a FELA case is whether a jury

may reasonably conclude that the defendant’s negli-

gence “played any part at all” in the plaintiffs injury

(td. at 507), the Court cited Carter v. Atlanta & St.

Andrews Bay Ry. Co., 338 U.S. 430, 435 (1949),

which holds that a jury may find for a FELA plaintiff

if it determines that the defendant’s negligence is “a

contributory proximate cause” of the injury. See

Rogers, 352 U.S. at 507 n.13.

The Court's decision in Rogers is thus “no author-

ity for anything less than proximate causation in an

action under FELA.” 127 S. Ct. 812 (Souter, J., con-

curring). The holding of the case is not that a FELA

defendant’s negligence need not be the proximate

cause of the injury, but that it need not be the sole

proximate cause. After more than half a century of

pervasive confusion on the point, there is a pressing

need for this Court to clarify Rogers’ meaning.

c. It has been suggested that, whether or not this

Court held that FELA plaintiffs need not prove

proximate causation in Rogers, it so held in two cases

decided after Rogers. See Sorrell, 1278S. Ct. at 812,

813 n.1 (Ginsburg, J., concurring in the judgment)

(citing Crane v. Cedar Rapids & Iowa City Ry. Co.,

395 U.S. 314 (1969), and Consolidated Rail Corp. v.

Gottshall, 512 U.S. 532 (1994)). In fact, neither of

those decisions held that FELA abrogates the re-

quirement of proximate cause.

In Crane, the Court cited Rogers for the proposi-

tion that a FELA plaintiff “is not required to prove

common-law proximate causation but only that his

injury resulted ‘in whole or in part’ from the rail-

road’s [negligence].” 395 U.S. at 166. That state-

ment is dictum, because the suit against the railroad

in Crane was filed by a nonemployee, and thus the

issue of causation was governed by state law rather

than FELA. Id. at 167. In any event, the statement

is properly read to mean only that FELA does not

embody the common-law concept of sole proximate

causation, as the Court’s quotation of the Act’s “in

whole or in part” language confirms. If the dictum

was intended to mean something more, however, it

was simply incorrect, because it conflated the ques-

tion of how direct a cause of an injury must be with

the question of how to proceed when the injury has

multiple causes. Certainly the dictum in Crane can-

not be thought to have overruled the long line of de-

cisions explicitly holding that proximate causation is

required by FELA, see note 9, supra, particularly in

light of this Court’s recent reaffirmation of the prin-

ciple that, “[a]bsent express language to the con-

trary, the elements of a FELA claim are determined

by reference to the common law,” Sorrell, 127 S. Ct.

at 805.

In Gottshall, the Court cited Rogers for the

proposition that “a relaxed standard of causation ap-

plies under FELA.” 512 U.S. at 543. That state-

ment, too, is dictum, because Gottshall involved an

issue—the standard for negligent infliction of emo-

tional distress—that did not require the Court to ex-

press a view on FELA causation generally. In any

event, the illustrative language that immediately fol-

lowed the Court’s statement—a quotation from

Rogers to the effect that the employer's negligence

need only have “played any part, even the slightest,

in producing the injury or death for which damages

are sought,” ibid. (quoting 352 U.S. at 506)—is en-

tirely consistent with the proper understanding of

Rogers (i.e., that it is a case about multiple causes).

Gottshall’s dictum concerning the “relaxed standard

of causation’—which does not mention proximate

cause—thus appears to be a reference to the fact

that, unlike the common law, FELA allows a plaintiff

to recover even when the railroad bears only a small

proportion of the responsibility for the injury.

2. The court below erred in holding that

there is a relaxed standard of negligence

under FELA

a. The common-law definition of negligence is a

failure to exercise the care necessary under the cir-

cumstances to protect others against an unreason-

able risk of harm. That was the rule at the time of

FELA’s enactment, see, e.g., 1 Thomas G. Shearman

& Amasa A. Redfield, A Treatise on the Law of Negli-

gence § 3, at 3 (5th ed. 1898), and it remains the rule

today, see, e.g., W. Page Keeton et al., Prosser &

Keeton on the Law of Torts § 31, at 169-170 (5th ed.

1984). The common-law concept recognizes that

“[nJo person can be expected to guard against harm

from events which are not reasonably to be antici-

pated at all, or are so unlikely to occur that the risk,

although recognizable, would commonly be disre-

garded.” Jd. § 31, at 170.

According to the established interpretive meth-

odology, the ordinary common-law standard of negli-

gence applies in FELA cases unless there is “express

language to the contrary” in the statute. Sorrell, 127

S. Ct. at 805. As the en banc Fifth Circuit has ex-

plained, there is “nothing in the text” of FELA—or

even in its “structure’—to indicate that “the stan-

dard of care * * * is anything different than ordinary

prudence under the circumstances.” Gautreaux v.

Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir.

1997) (en banc). On the contrary, FELA provides

simply that a railroad is liable for injuries caused by

its “negligence,” 45 U.S.C. § 51, and “one must as-

sume that Congress intended its words to mean what

they ordinarily are taken to mean—a person is negli-

gent if he or she fails to act as an ordinarily prudent

person would act in similar’ circumstances,”

Gautreaux, 10/ F.3d at 338 (quoting Fashauer v.

New Jersey Transit Rail Operations, 57 F.3d 1269,

1283 (3d Cir. 1995)).

Consistent with that view, this Court has explic-

itly stated that the definition of “negligence” in

FELA is determined by “common law principles,”

Urie v. Thompson, 337 U.S. 163, 174 (1949)—and, in

particular that an employer's liability 1s determined

“under the general rule which defines negligence as

the lack of due care under the circumstances,” Tiller

v. Atl. Coast Line R.R. Co., 318 U.S. 54, 67 (1943);

accord Anderson v. Atchison, Topeka & Santa Fe Ry.

Co., 333 U.S. 821, 823 (1948) (per curiam). Indeed,

in Sorrell itself, the Court confirmed that the stan-

dard of negligence, for both the railroad and the em-

ployee, is “ordinary prudence.” 127 S. Ct. at 807

(quoting Page v. St. Louis Sw Ry. Co., 349 F.2d 820,

823 (5th Cir. 1965)).

b. The Second Circuit has not suggested that

there is any language in FELA—much less any ex-

press language—that supports that court’s departure

from the common law. In interpreting FELA to cre-

ate a “relaxed” standard of negligence, one making

railroads potentially responsible for risks too remote

to support liability under the common law, the Sec-

ond Circuit has instead relied on the statute’s “broad

remedial nature.” App., infra, 3a (quoting Williams,

196 F.3d at 406, in turn quoting Ulfik v. Metro-North

Commuter R.R., 77 F.3d 54, 58 n.1 (2d Cir. 1996)).

That rationale, however, was explicitly rejected in

Sorrell.

In arguing that FELA creates a less stringent

standard of causation for the defendant’s negligence

than for the plaintiffs contributory negligence, the

plaintiff in Sorrell likewise invoked FELA’s “reme-

dial purpose.” 1275S. Ct. at 808. The Court was “not

persuaded.” Jbid. While acknowledging that FELA

“was indeed enacted to benefit railroad employees”—

“as the express abrogation of [certain] common-law

defenses * * * make[s] clear’—the Court explained

that it nevertheless “does not follow * * * that this

remedial purpose requires [the Court] to interpret

every uncertainty in the Act in favor of employees.”

Ibid. The Court went on to say that “FELA’s text

dves not support the proposition that Congress

meant to take the unusual step of applying different

causation standards” and that “the statute’s reme-

dial purpose cannot compensate for the lack of a

statutory basis.” Jbid. The Court therefore held that

“FELA does not abrogate the common-law approach.”

Ibid. The Court’s reasoning in Sorrell is no less dis-

positive here.

c. The Second Circuit has also suggested that its

“relaxed” standard of negligence follows from this

Court’s statement in Kernan v. American Dredging

Co., 355 U.S. 426 (1958), that “the theory of FELA is

that where the employer’s conduct falls short of the

high standard required of him by the Act and his

fault, in whole or in part, causes injury, liability en-

sues.” Tufariello v. Long Island R.R. Co., 458 F.3d

80, 87 (2d Cir. 2006) (quoting 355 U.S. at 438-439).

Kernan cannot justify the Second Circuit’s relaxed

standard, because, in that case, the Court was not

addressing the definition of “negligence” in FELA.

On the contrary, the Court was addressing a circum-

stance in which a defendant can be liable under the

Act “without regard to negligence” (Kernan, 355 U.S.

at 431)—namely, when the defendant has violated a

safety statute. See note 1, supra.

The Court in Kernan did say that the “high stan-

dard” of conduct applies “whether the fault is a viola-

tion of a statutory duty or the more general duty of

acting with care.” 355 U.S. at 439. A “high stan-

dard” of care may suggest a “relaxcd standard” of

negligence. But the Court’s statement is dictum, be-

cause the meaning of “negligence” in FELA was not

at issue in the case. The statement is also ill-

considered, because it is inconsistent with the estab-

lished interpretive principle that FELA presump-

tively incorporates common-law concepts, with the

absence of any language in FELA expressly abrogat-

ie |

ing the common-law understanding of negligence,

and with this Court’s prior statements—including in

Sorrell—that FELA incorporates ordinary rules of

negligence. Tiller, 318 U.S. at 67.

C. The Questions Presented Are Recurring

Ones Of Exceptional Importance

1. Because FELA “pre-empt[s] state tort reme-

dies,” Sorrell, 127 S. Ct. at 805, it is the exclusive

remedy for injuries sustained by railroad employees

in the workplace. And the remedy is frequently in-

voked. According to statistics compiled by the Ad-

ministrative Office of the U.S. Courts, nearly 4,000

FELA actions were commenced in U.S. District Court

alone in the five-year period from 2003 through 2007.

Annual Report of the Director: Judicial Business of

the United States Courts, Table C-2A at 1 (2007),

available at http://www.uscourts.gov/judbus2007/

appendices/CO2ASep07.pdf. That number is merely

a fraction of the total number of FELA actions com-

menced in all courts (federal and state). According

to statistics compiled by the Association of American

Railroads (AAR), approximately 25,000 such suits

were filed during the five-year period from 1998

through 2002. Br. of AAR as Amicus Curiae in Jones

v. CSX Transp., Inc., No. 03-16231-A (11th Cir. Jan.

27, 2004). The AAR has informed petitioner that ap-

proximately 10,000 additional FELA suits were filed

during the two-year period from 2003 through 2004.

Because negligence and causation are the basic

elements of a FELA claim, moreover, the questions

presented in the petition—whether there are “re-

laxed” or ordinary common-law standards of negli-

gence and causation—can arise in every case brought

under FELA. And they can arise at every phase of

the litigation: before trial, at the summary-judgment

stage; during trial, when the defendant moves for

judgment as a matter of law; at the end of trial,

when the jury is instructed; after trial, when the de-

fendant renews its motion for judgment as a matter

of law following a verdict in the plaintiffs favor; and

on appeal, when challenges to jury instructions and

the sufficiency of the evidence can be raised again.

The questions presented here can also arise in

every case brought under the Jones Act, 46

U.S.C. § 30104(a), the law that governs liability for

injuries sustained in the workplace by seamen. In

actions brought under the Jones Act, courts are

obliged to apply the “[lJaws of the United States

regulating recovery for personal injury to, or death

of, a railway employee.” Jbid. This Court has held

that the Jones Act thus “adopts ‘the entire judicially

developed doctrine of liability’ under [FELA].”

American Dredging Co. v. Miller, 510 U.S. 443, 456

(1994) (quoting Kernan v. American Dredging Co.,

355 U.S. 426, 439 (1958)). As a consequence, judicial

interpretations of FELA’s negligence and causation

elements apply both in FELA suits by railroad em-

ployees and in Jones Act suits by seamen. Compare,

e.g., Wills v. Amerada Hess Corp., 379 F.3d 32, 47 n.8

(2d Cir. 2004) (relaxed standard of causation under

FELA and Jones Act), with, e.g., Gautreaux v. Scur-

lock Marine, Inc., 107 F.3d 331, 338 (5th Cir. 1997)

(en banc) (no relaxed standard of negligence under

FELA or Jones Act).

2. The conflicting standards applied by the lower

courts do not differ merely in their formulations;

they can affect the outcome of cases. In upholding

the jury's verdict in this case, for example, the Sec-

ond Circuit “[m]Jeasured” the sufficiency of the evi-

dence by the “relaxed” standards established in its

prior decisions. App., infra, 3a. And it is likely that

the verdict would not have been upheld if the Second

Circuit had applied ordinary common-law principles.

The court found the evidence sufficient, in part, be-

cause petitioner “trained its employees to inspect and

clean acetylene torches prior to using them” and re-

spondent testified that his supervisors “were pres-

suring him to expedite his work.” Jd. at 4a. Under

ordinary (as opposed to “relaxed”) principles of fore-

seeability, however, an employer could not reasona-

bly anticipate that an employee would fail to conduct

a thorough (but uncomplicated) inspection he had

been trained to conduct for his own safety, id. at 11a-

12a, 18a; Pet. C.A. Exh. App. 50-51, of equipment “he

had thirty years experience using,” id. at 12a, merely

because the employee had been told to “expedite his

work,” id. at 4a, a routine occurrence in virtually any

workplace.

Prior decisions of the Second Circuit confirm that

the “relaxed” standards allow plaintiffs to prevail in

cases in which they would not have prevailed if the

suits had been filed in other courts. In Syverson v.

Consolidated Rail Corp., 19 F.3d 824 (2d Cir. 1994),

for example, the employee was “attacked by a knife-

wielding stranger” in the employer's railyard. Jd. at

825. The district court granted summary judgment

to the railroad, reasoning that “a sudden violent at-

tack by a crazed trespasser was inherently unfore-

seeable” and that the railroad therefore “could not be

deemed negligent.” Jbid. The Second Circuit ac-

knowledged that the attack was “essentially freak-

ish,” that the evidence of negligence was “slight” and

“{t}hin,” and that the railroad would have been enti-

tled to summarv judgment “had this been a negli-

gence action at common law.” /d. at 825-828. The

Second Circuit nevertheless reversed, relving on the

principle that the standard of negligence under

FELA is “substantially diluted” and “relaxed,” such

that an employer can be “responsible for risks that

would be too remote to support liability under com-

mon law.” /d. at 825-826. The court relied, in part,

on its prior decision in Gallose v. Long Island R.R.

Co., 878 F.2d 80, 84-86 (2d Cir. 1989), which held

that, under FELA, a railroad’s negligence could be

established when an employee was bitten by a large

dog the employer knew or should have known was on

the premises, even though, under the common-law

rule, negligence could not be established unless the

defendant knew or should have known that the dog

on its premises was vicious. Syverson, 19 F.3d at

827-828.

In another case, Zimmerman v. Long Island

R.R., 2 Fed. Appx. 172 (2d Cir. 2001), the employee

was directed “to cut down a tree that was fouling a

track” and did so “by himself with some difficulty”;

his foot then “became entangled in brush near the

track,” and he “tripped and injured his right knee.”

Id. at 173. A jury returned a verdict in favor of the

employee. The Second Circuit affirmed, holding,

among other things, that there was sufficient evi-

dence of causation. Applying the principle that “the

standard under the FELA is relaxed” and that “the

plaintiff is not required to prove common-law proxi-

mate causation,” the court concluded that a jury

“easily” could have found that the employee's injury

was caused by the railroad’s violation of regulations

governing a “lone worker.” Jd. at 175-176 (internal

quotation marks omitted). The court reasoned that,

if the employee’s supervisor “had been aware that

the [employee] was not qualified as a lone worker,”

the employee “would presumably not have been dis-

patched” on the night of the injury. /d. at 176. That

31 q

is classic “but for” causation—the violation of the

regulations “merely create[{d] an incidental condition

or situation in which the accident, otherwise caused,

result{e]d in fan] injury,” Davis v. Wolfe, 263 U.S.

239, 243 (1923)—and it is therefore insufficient un-

der the common law. Indeed, a trial court in Ohio—

where proximate causation is required—recently

granted summary judgment for the railroad in a

FELA case with similar facts. See Sievert v. CSX

Transp., Inc., No. CI0200504624, 2008 WL 3819782

(Ohio Ct. Com. Pl. June 22, 2008) (theory of causa-

tion was that injury would not have occurred if loco-

motive on which plaintiff was injured had been taken

out of service because of defective handbrake, which

otherwise bore no relation to injury).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

LAWRENCE R. BAILEY, JR. EVAN M. TAGER

NOREEN DEWIRE DAN HIMMELFARB

GRIMMICK Counsel of Record

Hodgson Russ LLP Mayer Brown LLP

677 Broadway, Suite 301 1909 K Street, NW

Albany, NY 12207 Washington, DC 20006

(518) 465-2333 (202) 263-3000

Counsel for Petitioner

AUGUST 2008

APPENDIX

APPENDIX A

United States Court of Appeals, Second Circuit.

Richard RIVENBURGH, Plaintiff-Appellant,

CSX TRANSPORTATION, Defendant-Appellee.

Nos. 06-4514-cv(L), 06-4884-cv(Con).

May 30, 2008.

Michael Kleeman, Kleeman & DiGiovanni, P.C.,

Philadelphia, PA, for Appellant.

Noreen DeWire Grimmick, (Lawrence R. Bailey, Jr.,

on the brief), Hodgson Russ LLP, Albany, NY, for

Appellee.

Present SONIA SOTOMAYOR, DEBRA A. LIV-

INGSTON, Circuit Judges, LORETTA A.

PRESKA, District Judge.!

SUMMARY ORDER

UPON DUE CONSIDERATION of this appeal

from the September 29, 2006 judgment of the United

States District Court for the Northern District of

New York (Sharpe, J.), it is hereby ORDERED, AD-

JUDGED, AND DECREED that the judgment is

! The Honvurable Loretta A. Preska, United States District

Court for the Southern District of New York, sitting by designa-

tion.

AFFIRMED in part, VACATED in part, and re-

manded to the district court with instructions.

Defendant-Appellant CSX Transportation (the

“Railroad”) appeals from the district court’s judg-

ment, upholding a jury verdict finding the Railroad

hable under the Federal Employee’s Liability Act

(“FELA”), 45 U.S.C. § 51 et seq, and awarding

$553,150 in damages to plaintiff-appellee Richard

Rivenburgh for past and future pain and suffering

resulting from a hearing loss he sustained on the job

when an acetylene torch he was using created an ex-

plosive noise. On appeal, the Railroad challenges the

district court’s denial of its pre-trial motion under

Fed.R.Civ.P. 56, and post-trial denial of the Rail-

road’s motions under Fed.R.Civ.P. 50 & 59. We as-

sume the parties’ familiarity with the facts and pro-

cedural history of the case.

Initially, che Railroad’s challenge to the district

court's denial of its pre-trial motion for summary

judgment is misplaced and is otherwise moot. In

Pahuta v. Massey-Fergeson, Inc., 170 F.3d 125 (2d

Cir. 1999), we held that the defendant was not enti-

tled to appeal from the denial of its motion for sum-

mary judgment where, as here, there was an inter-

vening trial on the merits. While we have recognized

exceptions to this rule based on “extraordinary” cir-

cumstances, see id. at 132, or where the denial of

summary Judgment rested on a “pure” legal error, see

Schaeffer v. State Ins. Fund, 207 F.3d 139, 142 (2d

Cir.2000), this case mects neither criteria.

Separately, the Railroad argues that the district

court erred in denying its post-trial motions on the

grounds that: (1) the jury’s findings were the result

of pure conjecture as to what caused Rivenburgh’s in-

jury; (2) Rivenburgh failed to prove that the injury

was foreseeable by the Railroad or that the Railroad

had a reasonable opportunity to repair the allegedly

dangerous condition; (3) the weight of the evidence

was adversely impacted by the court’s erroneous evi-

dentiary rulings that allowed expert testimony by lay

witnesses, including Rivenburgh, concerning the

cause of his injury; and (4) the jury’s damages award

was excessive.

The first three of these challenges relating to h-

ability are meritless. Under FELA, a railroad is li-

able to “any person suffering injury while he is em-

ployed by [the railroad] .. . for such injury or death

resulting in whole or in part from the negligence of

any of the officers, agents, or employees of [the rail-

roadj.” 45 U.S.C. § 51. We have explained that

FELA is to be construed “in hght of its broad reme-

dial nature, as creating a relaxed standard for negli-

gence as well as causation.” Williams v. Long Island

R.R. Co., 196 F.3d 402, 406 (2d Cir. 1999) (citation

omitted). Measured by these standards we find no

error in the district court’s assessment that the jury

had before it sufficient evidence to conclude that the

Railroad’s negligence was a 60% cause of Riven-

burgh’s injury, that Rivenburgh was 40% compara-

tively at fault, and that the injury was sufficiently

foreseeable to the Railroad. As the district court ex-

plained:

The jury was entitled to infer, based on the

testimony of Rivenburgh and_ [coworker

Robert] Zinzow, that the presence of slag on

the tip of the acetylene torch caused the loud

noise that resulted in Rivenburgh’s hearing

loss. Rivenburgh and Zinzow both testified

about the dangers of the acetylene torches

and the possible consequence of falling to

clean and inspect them prior to their use.

Moreover Rivenburgh testified that he saw

slag on the tip of the torch after hearing the

loud noise.

The jury was also entitled to find foreseeabil-

ity because [the Railroad] trained its employ-

ees to inspect and clean acetylene torches

prior to using them. . . . Furthermore, the

jury could have reasonably concluded that

[the Railroad], in part, was responsible for

Rivenburgh’s failure to detect the slag be-

cause its supervisors were pressuring him to

expedite his work.

Rivenburgh v. CSX Corp., No. 1:03-cv-1168, 2006

U.S. Dist. Lexis 62903, at *12-13 (N.D.N.Y. Sept. 5,

2006). .

The Railroad claims however—perhaps rightly

so—that the jury’s liability finding necessarily

hinged on the purportedly expert testimony of

Rivenburgh and Zinzow concerning the cause of

Rivenburgh’s injury, and that the district court erred

in admitting this testimony. But we may not reach

this evidentiary challenge because it was not prop-

erly preserved below. See Fed.R.Evid. 103 (“Error

may not be predicated upon a ruling which ad-

mits ... evidence unless... a timely objection or mo-

tion to strike appears of record, stating the specific

ground of objection, if the specific ground was not

apparent from the context.”). Although the Railroad

filed a pre-trial in limine motion seeking to preclude

Rivenburgh (or anyone else) from offering expert tes-

timony, the district court expressly reserved ruling

on the motion, and, at trial, the Railroad failed to

timely object on expert-testimony grounds when the

at-issue testimony was received into evidence.? Al-

though the Railroad points us to record objections it

made to parts of Rivenburgh’s testimony, none of

those objections were on expert testimony grounds.

Moreover, while the Railroad did object on expert-

testimony grounds to one question during Zinzow’s

testimony, the district court properly ruled that the

question objected to did not call for expert testimony,

and the Railroad failed to later timely object when

the testimony arguably transcended into expert tes-

timony. Accordingly, we reject the Railroad’s chal-

lenges to the hability findings.

We are troubled by the damages award in this

case, however, and on that basis we vacate the judg-

ment in part. Our standard of review of damage

awards is “whether the award is so high as to shock

the judicial conscience and constitute a denial of jus-

tice.” O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir.

1988); see also Casey v. Long Island R.R. Co., 406

2 The district court’s minute entry ruling on the in limine mo-

tion states:

Atty. Bailey [for the Railroad] turns to Plaintiff as expert;

Court RESERVES on this motion; Court states let plaintiff

testify to facts and circumstances; views from facts of train-

ing; if transcends into expert, will not permit.

Even if, as the Railroad claims, this entry can be read as

definitely precluding Rivenburgh from testifying as an ex-

pert, the district court clearly reserved ruling as to what tes-

timony might transcend into the expert realm. And, to the

extent there was any ambiguity in the district court's order,

it was incumbent on the Railroad to cure it. See Fed.R.Evid.

103, advisory committee’s note (The amendment imposes

the obligation on counsel to clarify whether an in limine or

other evidentiary ruling is definitive when there is doubt on

that point.”).

F.3d 142, 146-47 (2d Cir.2005). Contrary to the par-

ties’ suggestions, “the matter of the excessiveness of

the jury’s award does not present a question of law.”

Casey, 406 F.3d at 146. “Rather, it presents a ques-

tion as to the proper evaluation of the evidence in-

troduced at trial. ‘That evaluation is not reviewed de

novo, as a question of law would be, but rather is ac-

corded deferential review.” Id. at 146-47. When con-

sidering whether an award for damages is excessive,

we may review awards in other cases involving simi-

lar injuries, while being cognizant of the fact that.

each judgment depends on a unique set of facts and

circumstances. Nairn v. National R.R. Passenger

Corp., 837 F.2d 565, 568 (2d Cir.1988).

In this case, Rivenburgh presented expert medi-

cal testimony that he suffered a hearing loss at the

conversational frequency in one ear, which now re-

quires him to use a hearing aid in that ear. Riven-

burgh claims that his injury was particularly harm-

ful because a hearing loss at the conversational fre-

quency affects daily life more so than hearing losses

at other frequencies, and further because he already

had a hearing impairment in his other ear. These

considerations notwithstanding, our review of com-

parable cases involving hearing loss makes clear that

the damages awarded to Rivenburgh is “shock

{ingly]” excessive. See O’Neill, 839 F.2d at 13.

We begin with the cases relied upon by Riven-

burgh. In CSX Transportation, Inc. v. Long, 703

So.2d 892 (Ala. 1996), the plaintiff was awarded

$1,000,000 in damages by the jury for his hearing

loss in both ears sustained from vears of exposure to

train horns and machinery. Id. at 893-94.5 The

court, finding the verdict excessive, reduced it to

$500,000. Jd. at 899. And in CSX Trans. v. May-

nard, 667 So.2d 642 (Ala. 1995), the jury awarded

the plaintiff $325,000 in compensatory damages for a

hearing loss suffered due to exposure to machines

emitting loud noises. Id. at 643.4

Other hearing impairment cases we have found

include Mullet v. Wheeling & Lake Erie R.R. Co.,

No. 81688, 2003 Ohio App. LEXIS 2996, at *1 (Ohio

Ct. App. June 26, 2003) (verdict of $102,000 for ten-

nitus—a ringing in the ears); CSX Transportation,

Inc. v. Dansby, 659 So.2d 35, 37-38 (Ala. 1995) (ver-

dict of $105,000 for hearing loss at the conversa-

tional level); CSX Transportation, Inc. v. Bryant, 589

So.2d 706 (Ala. 1991) (verdict of $25,000 for loss of

hearing). And, in Guerrero v. American President

Lines, Ltd., 394 F.Supp. 333 (N.D.N.Y. 1975), a

plaintiff who suffered a partial hearing loss and total

4+ Although the decision in Long does not specify whether this

amount was for pain and suffering, we assume for purposes of

our discussion that it was. Unless otherwise noted, our ap-

proach is the same with respect to the damages awards in the

other comparative cases cited herein.

+ Rivenburgh also relies on Rutz v. Southern Pacific Transpor

tation Co., No. C033446, 2003 Cal. App. Unpub. Lexis 3057

(Cal. Ct. App. Mar. 2003) (upholding an award of $495,000 re-

flecting a 12.5% reduction for comparative negligence and other

causes), but under California’s court rules, neither Rivenburgh

nor we are permitted to rely on this opimon. See Cal. R. Ct.

8.1115(a). Even if we were to, it would not affect our decision in

this case.

loss of taste and smell received a verdict of $200,000.

Td. at 338.°

Rivenburgh, by stark contrast, was awarded

$1,000,000 in damages (comprised of $600,000 for

past pain and suffering and $400,000 for future pain

and suffering).6 Rivenburgh’s $1,000,000 jury ver-

dict is significantly more than that awarded in the

cases Rivenburgh himself relies upon, and is expo-

nentially greater than the other comparative cases

we have identified. While cognizant that pain and

suffering damages are not readily quantifiable by

any mathematical or scientific precision, Riven-

burgh’s award clearly “falls outside a reasonable

range of awards.” See DiSorbo v. Hoy, 343 F.3d 172,

184 (2d Cir. 2003). We believe that an award of

$400,000 in damages (comprised of $240,000 in past

pain and suffering and $160,000 in future pain and

5 We also take notice of the summaries of the verdicts in Collins

v. South Buffalo Railway, 1999 WL 33484398 (N.Y. Sup. Ct.

1991) (verdict including $50,000 for pain and suffering basea on

severe hearing loss); Faraci v. Long Island Railway. Co., 1978

WL 208576 (N.Y. 1978) (verdict of $160,000, before reduction

for comparative negligence, for hearing loss at high-frequency

level).

6 Rivenburgh’s $1,000,000 award was reduced by 40%, to

$600,000, to account for Rivenburgh’s comparative negligence,

and further reduced by the district court to $553,150, to account

for a 2% reduction in present value for future pain and suffer-

ing. For purposes of our comparison to other cases, we consider

his award to be $1,000,000, rather than the adjusted figure of

$553,150. The alternative approach would be to adjust the ver-

dicts in the comparative cases to account for identical adjust-

ments in Rivenburgh’s case for comparative negligence and pre-

sent value. The same ratios obtain by either means.

suffering)’ is more keeping with reason. That

$400,000 figure, of course, must further be reduced

by 40% to $240,000 (to account for Rivenburgh’'s

comparative negligence) and for future value.

We remand for a new trial on damages, but leave

Rivenburgh the option of forgoing a new trial on

damages if he agrees to remit any damages above

our adjusted figure of $240,000. See id. at 189 (pro-

viding plaintiff a similar option); Lee v. Edwards, 101

F.3d 805, 813 (2d Cir. 1996) (same). Rivenburgh is

directed to inform the district court in writing, with a

copy to this Court, within fifteen days of the issuance

of our mandate concerning his intent to remit or re-

try. Should Rivenburgh agree to remit, the parties

are further directed to reach agreement on what the

appropriate reduction for present value should be,

and, if they cannot agree, the district court shall de-

cide the issue.

For the foregoing reasons, the judgment is AF-

FIRMED in part, and VACATED in part with in-

structions.

* Our breakdown for past and future pain and suffering is based

on the same 6:4 ratio reflected in the jury's award.

10a

APPENDIX B

United States District Court, N.D. New York.

Richard RIVENBURGH, Plaintiff,

CSX CORPORATION, Defendant.

No. 1:03-CV-1168 (GLS).

Sept. 5, 2006.

Kleeman, Abloeser Law~ Firm, Samuel Abloeser,

Esq., of counsel, Philadelphia, PA, for the Plaintiff.

Hodgson. Russ Law Firm, Noreen D. Grimmick,

Esq., of counsel, Albany, NY, for the Defendant.

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, District Judge.

I. Introduction

Richard Rivenburgh sued his railroad employer,

CSX Corporation (CSX), pursuant to the Federal

Employer's Liability Act (FELA), 45 U.S.C. § 51 et.

seq., claiming that he sustained hearing loss in an

accident caused by CSX’s failure to provide him with

a safe working environment. After a jury returned a

verdict in Rivenburgh’s favor, CSX moved for judg-

ment notwithstanding the verdict or, alternatively, a

new trial, see Dkt. No. 102; see also FED. R. CIV. P.

50 & 59, and Rivenburgh opposed. See Dkt. Nos.

105, 106. For the following reasons, CSX’s motions

are denied.

lla

Il. Background

After Rivenburgh completed his direct case, CSX

moved for judgment as a matter of law. See Dkt. No.

88 (Minute Eniry). CSX supplemented its motion at

the conclusion of the case, and the court reserved.

Thereafter, the jury found CSX negligent, and

Rivenburgh 40% at fault, comparatively. See id.

Rivenburgh was awarded $600,000.00 in past pain

and suffering and $400,000.00 in future pain and

suffering.! See id. CSX then moved to set aside the

verdict, and the court reserved decision pending the

parties’ additional submissions. See id.

Ill. Facts?

On October 12, 2000, Rivenburgh had been em-

ployed as a car inspector at CSX’s Selkirk, New York

Yard for approximately fifteen years. See (Tr. at 58),

Dkt. No. 100. On that day, he was repairing boxcars

in the Departure Yard Building. See id. He was not

wearing hearing protection. See (Tr. at 70). He was

assigned to perform various repairs, perform a brake

test on an outbound train, and to replace a cutting

lever on a railroad car. See (Tr. at 59, 61). Before-

hand, he requested additional assistance, but no help

was sent. See (Tr. at 60).

In order to replace the cutting lever, Rivenburgh

had to use an acetylene torch. See id. He had been

trained on acetylene torch use through classroom in-

struction and hands-on experience. See (Tr. at 55).

' As to future pain and suffering, the parties stipulated to a life

expectancy of 21.7 years and a two percent discount rate.

* Although application of the differing Rule 50 and 59 standards

can result in facts and reasonable inferences that vary, there

are no significant differences in this case.

12a

At the time of the accident, he had thirty years ex-

perience using the torch. See id.

He retrieved a torch from the only repair car in

the yard. See id. Before striking the igniter to light

it, he examined it “the best he could.”? See (Tr. at

62). He conceded at trial that he did not see slag

when he initially examined the torch. See (Tr. at 64).

When he turned on the oxygen tank and struck

the igniter, the torch made a loud noise. See id. He

characterized the noise as an “explosion,” explaining

that “the next thing [he] knew, [he] was on [his]

knees and ... was holding [his] ears because [he]

couldn’t hear nothing ‘sic].” Jd. He described the

noise as “the worst noise [he] ever heard.“ Jd. - After

the explosion, he retrieved the torch and inspected it,

and noticed that slag was embedded on the tip. See

(Tr. at 66). He turned the torch off and placed it

back in the repair truck. See id. According to CSX’s

safety documents, it was aware of hazzards associ-

ated with acetylene torch use, including “{bJlowback

of hot slag because of . . . explosive gases accumulat-

ing....” See Exhib. List D-7. Dkt. No. 92.

Rivenburgh returned to the office where he filled

out a safety report. See (Tr. at 68). He recalled hav-

ing a headache, feeling dizzy and disoriented, and

feeling pain in his ears, neck, and head immediately

after the incident See (Tr. at 68, 69). According to

his medical expert, he suffered a permanent, irre-

> He explained that he felt “rushed,” and felt that he “didnt

have the time” to adequately inspect the torch prior to using it.

(Tr. at 62), Dkt. No. 100. He further testified that he “was do-

ing three other jobs at once and [his supervisors} were calling

[him] every ten minutes on the radio asking [him] have you

done that job, are you completed yet [sic]. ...” Jd.

l3a

versible hearing loss in his right ear at the conversa-

tional level. See (Tr. at 62).

IV. Discussion

A. Standard of Review

1. Rule 50

“Judgment as a matter of law is proper when ‘a

party has been fully heard on an issue and there is

no legally sufficient evidentiary basis for a reason-

able jury to find for that party on that issue.’ “ U.S.

v. Space Hunters, Inc., 429 F.3d 416, 428 (2d Cir.

2005) (citing FED. R. CIV. P. 50(a)(1)). The court

must “consider the evidence in the light most favor-

able to the party against whom the motion was made

and ... give that party the benefit of all reasonable in-

ferences that the jury might have drawn in his favor

from the evidence.” Jd. at 429 (internal quotation

marks and citation omitted); see also Reeves v. San-

derson Plumbing Prods., Inc., 5380 U.S. 138, 150

(2000). “The court cannot assess the weight of con-

flicting evidence, pass on the credibility of the wit-

nesses, or substitute its judgment for that of the

jury.” Space Hunters, 429 F.3d at 429 (internal quo-

tation marks and citation omitted). “A jury verdict

should be set aside only where there is ‘such a com-

plete absence of evidence supporting the verdict that

the jury's findings could only have been the result of

sheer surmise and conjecture, or . . . such an over-

whelming amount of evidence in favor of the movant

that reasonable and fair minded men could not ar-

rive at a verdict against him.” Jd. (citing Song v.

Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir.

1992)).

l4a

2. Rule 59

Rule 59(a)(1) of the Federal Rules of Civil Proce-

dure provides that “[a] new trial may be granted...

for any of the reasons for which new trials have here-

tofore been granted in actions at law in the courts of

the United States [.]!” FED. R. CIV. P. 59. This

standard permits new trials when “in the opinion of

the district court, the jury has reached a seriously

erroneous result or. . . the verdict is a miscarriage of

justice.” DLC Mgmt. Corp. v. Town of Hyde Park,

163 F.3d 124, 133 (2d Cir. 1998) (quotation marks

and citation omitted). “A new trial may be granted,

therefore, when the jury’s verdict is against the

weight of the evidence.” Jd. Unlike the standard of

review applicable to a Rule 50 motion, “. .. a trial

judge is free to weigh the evidence himself, and need

not view it in the light most favorable to the verdict

winner... A court considering a Rule 59 motion for

a new trial must bear in mind, however, that the

court should only grant such a motion when the

jury’s verdict is egregious.” Jd. at 134 (internal quo-

tation marks and citation omitted). A trial judge’s

disagreement with the jury’s verdict alone is insuffi-

cient reason to grant a motion for a new trial. See

Saloomey v. Jeppesen & Co., 707 F.2d 671, 679 (2d

Cir. 1983).

B. Motions

In support of its Rule 50 motion, CSX argues

that it is entitled to judgment as a matter of law be-

cause the jury’s findings were the result of surmise

and conjecture. As to its Rule 59 motion, it argues

that the jury’s verdict was egregious. Whether the

court applies the Rule 50 or 59 standard of review, it

reaches the same conclusion; namely, the jury's ver-

15a

dict is supported by competent evidence, and CSX’s

motions are without merit.

CSX specifically contends that Rivenburgh failed

to prove: (1) that CSX’s negligence caused his injury;

(2) that CSX knew or should have known of a dan-

gerous condition or that Rivenburgh’s injury was

foreseeable by CSX; and (3) that CSX had a reason-

able opportunity to repair the dangerous condition.

CSX also argues that the weight of the evidence was

adversely impacted by erroneous evidentiary rulings

that allowed expert testimony by lay witnesses con-

cerning the cause of the loud noise. Moreover, CSX

argues that the jury’s finding that Rivenburgh was

forty percent comparatively negligent and that CSX

was sixty percent comparatively negligent was

against the weight of the credible evidence. Finally,

CSX argues that the award in the amount of

$600,000.00 for past pain and _ suffering and

$400,000.00 for future pain and suffering was exces-

sive, and a new trial should be ordered on the issue

of damages.

1. The Jury’s Finding of Negligence

Regarding its negligence contentions, CSX ar-

gues that it is pure speculation that: (1) there was

slag embedded on the tip of the torch prior to the

loud noise; (2) that CSX should have known about

the existence of any slag on the torch prior to the

time Rivenburgh used it; and (3) that CSX had a rea-

sonable opportunity to repair or fix the torch prior to

Rivenburgh’s use. Rivenburgh counters that given

the relaxed FELA negligence standards, the evidence

sufficiently supported the jury’s conclusion that CSX

was partly liable for his injury.

16a

Under FELA, a railroad engaged in interstate

commerce is liable to “any person suffering injury

while he is employed by [the railroad] . . . for such in-

jury or death resulting in whole or in part from the

negligence of any of the officers, agents, or employees

of {the railroadj.” 45 U.S.C. § 51. The Act requires

covered employers “to provide its employees with a

reasonably safe place to work.” Sinclair v. Long Is-

land R.R., 985 F.2d 74, 76 (2d Cir. 19938) (citation

omitted). The Second Circuit construes the statute,

‘in light of its broad remedial nature, as creating a

relaxed standard for negligence as well as causa-

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

402 , 406 (2d Cir. 1999) (citation omitted). “The Act

requires an employer to provide its employees with a

reasonably safe place to work, . . . and this includes

the duty to maintain and inspect work areas.” Sin-

clair, 985 F.2d at 76 (citation omitted). The scope of

this ongoing duty is clear. “An employer breaches its

duty to provide a safe workplace when it knows or

should know of a potential hazard in the workplace,

yet fails to exercise reasonable care to inform and

protect its employees.” Gallose v. Long Island R.R.,

878 F.2d 80, 84-85 (2d Cir. 1989) (citation omitted).

In addition, “reasonable foreseeability of harm is

an essential ingredient of [FELA] negligence.” Gal-

lick v. Baltimore and Qhio R.R. Co., 372 U.S. 108,

117 (1963 ) (citation omitted). The reasonable fore-

seeability element in FELA actions “requires proof of

actual or constructive notice to the employer of the

defective condition that caused the injury.” Sinclair,

985 F.2d at 77. “The issue of notice typically pre-

sents a question of fact.” Paul v. Genesee & Wyo. In-

dus., Inc., 93 F. Supp. 2d 310, 318 (W.D.N.Y. 2000)

“tAls with all factual issues under FELA, the right of

the jury to pass on this issue must be liberally con-

bin Gi ds

pena

OO er eee eee he? ate OP ON eee ae pe Pee eae oO “rea 4. >" @. ee ae A. a Oe Ps ie Paneer. Fae hea” ew +: ie

17a

strued.” Herbert v. Nat’ R.R. Passenger Corp., 92-cv-

6937, 1995 U.S. Dist. LEXIS 12402, at *7 (S.D.N.Y.

Aug. 28, 1995) (citing Gallose v. Long Island R.R.

Co., 878 F.2d 80, 85 (2d Cir. 1989)). “This is espe-

cially true in negligence actions brought under the

FELA, where ‘the role of the jury is significantly

greater ... than in common law negligence actions,’

and where the jury’s right to pass upon the question

of the employer's liability ‘must be most liberally

viewed.” Gallose, 878 F.2d at 84 (citation omitted).

However, “FELA is not a strict lability stat-

ute, ... and the fact that an employee is injured is

not proof of negligence.” Williams, 196 F.3d at 406

(citation omitted). “FELA does not make the em-

ployer the insurer of the safety of his employees

while they are on duty. The basis of his liability is

his negligence, not the fact that injuries occur.” Ca-

priotti v. Consol. Rail Corp., 878 F.Supp. 429, 431

(N.D.N.Y. 1995) (citation omitted). Thus, “the tradi-

tional common law negligence elements of duty,

breach, causation and damages are still applicable.”

Id. Causation, for example, can be established by

showing that employer negligence played any part,

even the slightest, in producing the injury for which

damages are sought. See Williams, 196 F.3d at 406.

Under this standard, FELA defendants may be held

liable for injuries that would be considered too re-

mote under common law. See id. at 407.

The court is unpersuaded by CSX’s argument

that a reasonable and fair-minded jury could not

have arrived at the instant verdict based on the trial

evidence. ‘\‘he parties do not dispute that CSX owed

Rivenburgh a duty to provide a safe work environ-

ment, and that element is clearly established. As to

causation, Rivenburgh had to establish that CSX’s

18a

negligence played a part, even the slightest, in pro-

ducing the injury for which damages were sought.

See Williams, 196 F.3d at 406. The jury was entitled

to infer, based on the testimony of Rivenburgh and

Zinzow, that the presence of slag on the tip of the

acetylene torch caused the loud noise that resulted in

Rivenburgh’s hearing loss. Rivenburgh and Zinzow

both testified about the dangers of acetylene torches

and the possible consequences of failing to clean and

inspect them prior to their use. Moreover, Riven-

burgh testified that he saw slag on the tip of the

torch after hearing the loud noise.

The jury was also entitled to find foreseeability

because CSX trained its employees to inspect and

clean acetylene torches prior to using them. At trial,

CSX introduced a document entitled, “Proper Use of

Cutting Torches.” See Exhib. List D-7, Dkt. No. 92.

That document recites safety procedures taught to

CSX employees, such as “inspecting torch ... for any

defects and correct.” Jd. It also lists four “specific

hazards” resulting from the failure to follow safety

procedures, including, “[b]lowback of hot slag be-

cause of haste or lack of awareness[,] . . . [and] explo-

sive gases accumulating ... - torch not properly

turned off.” Jd. Clearly, these safety measures re-

flected CSX’s knowledge that acetylene torches could

be dangerous if not cared for properly. Based on the

testimony of Rivenburgh and Zinzow, coupled with

the trial exhibit, a reasonable jury could infer that a

CSX employee's failure to properly inspect and clean

the torch caused the explosion. Furthermore, the

jury could have reasonably concluded that CSX, in

part, was responsible for Rivenburgh’s failure to de-

tect the slag because its supervisors were pressuring

him to expedite his work.

19a

As stated, the relaxed negligence standard under

FELA is whether the employer’s negligence played

any part, even the slightest, in the plaintiffs injury.

See Williams, 196 F.3d at 406. Thus, the evidence

was sufficient to support the jury’s conclusion that

CSX was liable for Rivenburgh’s injury.

2. Erroneous Evidentiary Ruling: Expert

Testimony

Before trial, CSX filed a motion in limine seeking

to preclude testimony from Rivenburgh and a co-

employee, Zinzow, concerning the cause of the explo-

sion. See Dkt. No. 63. The court reserved decision,

but ordered Rivenburgh to limit his and Zinzow’s tes-

timony to facts and observations they experienced

while using acetylene torches. The court also ad-

vised CSX’s counsel that it would revisit the issue in

the event that Rivenburgh sought to convert lay wit-

ness observations into expert opinion.

CSX now argues that Rivenburgh and Zinzow

impermissibly gave expert testimony regarding the

cause of the loud noise emitted from the acetylene

torch.4 Therefore, CSX concludes, the jury’s verdict

cannot survive scrutiny if that testimony is excised

from the record. According to CSX, Rivenburgh tes-

tified in his pretrial deposition that he had never

known of an acetylene torch causing a loud noise.

CSX next contends that Rivenburgh purposefully de-

4 Rivenburgh contends that CSX failed to renew its pre-trial ob-

jection, and waived it. As to waiver, Rivenburgh also points out

that CSX objected only once during Zinzow’s testimony on the

basis of improper expert testimony, and the court overruled

that objection. Because Rivenburgh and Zinzow provided proper

lay witness testimony under the Federal Rules of Evidence,

analysis of the waiver argument is unnecessary.

20a

viated from that statement at trial when he testified

that he believed the loud noise was caused by slag

buildup on the tip of the torch. CSX maintains that

this inconsistency allowed Rivenburgh to circumvent

Federal Rule of Evidence 701, which prohibits lay

witnesses from testifying to scientific, technical, or

other specialized knowledge. See FED. R. EVID. 701

(2001).

Federal Rule of Evidence 701 provides:

If the witness is not testifying as an expert,

the witness’ testimony in the form of opinions

or inferences 1s limited to those opinions or in-

ferences which are (a) rationally based on the

perception of the witness, and (b) helpful to a

clear understanding of the witness’ testimony

or the determination of a fact in issue, and (c)

not based on scientific, technical, or other spe-

cialized knowledge within the scope of Rule

702.

FED. R. EVID. 701. Rivenburgh testified at trial

that inspection of the torch was necessary so that

“you wouldn’t have a problem of slag building up

onto it, and you wouldn't have a problem with the

torch exploding, so it’s a safe tool to use.” See (Tr. at

51-52), Dkt. No. 100. These observations were pre-

ceded by testimony that he had thirty years experi-

ence working with an acetylene torch. See (Tr. at 13-

18, 51, 55, 78). Zinzow testified about the hazards of

slag on the tip of the torch after it was established

that he had used the torch thousands of times. See

(Tr. at 183), Dkt. No. 101.

Rivenburgh and Zinzow testified not as experts,

but as lay witnesses. Their testimony was based on

their own experiences and perceptions, and it was

2la

helpful to the jury in determining what happened on

October 12, 2000. Moreover, neither Rivenburgh nor

Zinzow used hyper-technical language or scientific

terminology during their testimony. Instead, they

used lay persons’ terms, and their observations were

based on their own years of experience working with

an acetylene torch like the one that caused Riven-

burgh’s injury. Furthermore, the observations were

consistent with the training they received and con-

sistent with CSX’s own safety literature.

CSX characterizes Rivenburgh’s deposition and

trial testimony as inconsistent, but the court dis-

agrees. Rivenburgh testified during his deposition

that he did not know that a loud noise was a risk as-

sociated with the use of a torch. That observation is

not inconsistent with his trial testimony that he was

taught to clean and inspect the torch prior to using it

so that slag would not build up at the tip of the torch.

Moreover, Rivenburgh had thirty years experience

using an acetylene torch, and while he may not have

been aware of a loud noise risk, he could still testify

to the facts he learned during his thirty years ex-

perience. Accordingly, this argument lacks merit,

and the testimony of Rivenburgh and Zinzow was

properly admitted. So too, that testimony was ap-

propriately considered by the jury in reaching its ver-

dict.

3. Comparative Negligence

In conclusory fashion, CSX argues that the jury’s

assessment of habhility is against the weight of the

credible evidence. The court is not persuaded that

the jury’s verdict is cither egregious or constitutes a

miscarriage of justice. There is no doubt that there

was slag on the tip of the torch after the loud noise,

and that the slag was present due to someone’s neg-

22a

ligence. Rivenburgh admitted that he was partly

negligent because he did not sufficiently inspect the

torch prior to using it. He also offered circumstantial

evidence of CSX’s negligence; namely, some CSX em-

ployee failed to clean the torch. Precisely who was

negligent and to what degree were factual issues

squarely presented to the jury, and resolved by them.

Despite CSX’s general argument that there was no

evidence of negligence or foreseeability, there was

ample evidence presented at trial that slag on the tip

of the torch caused a loud noise and that the pres-

ence of slag buildup was partly due to the negligence

of a CSX employee. Accordingly, CSX’s argument is

unpersuasive.

4. Excessiveness of the Verdict

a. Damages

CSX contends that the jury’s damage award for

past and future pain and suffering is excessive as a

matter of law and warrants a new trial on this issue.

It argues that Rivenburgh adduced no evidence dem-

onstrating that he suffered pain.®> Rivenburgh main-

tains that given the evidence, the damages award

5 In the sentence following CSX’s assertion to that effect, it

states, “plaintiff claimed only on the day of the accident to have

experienced a headache, dizziness, and _ disorientation.”

Dkt. No. 108. Moreover, CSX continues, “plaintiffs wife testi-

fied that for approximately one week, plaintiff withdrew from

the family, spent a lot of time in bed .. . and was lost.” Jd. CSX

further claims that Rivenburgh did not testify to any pain, suf-

fering, or loss of enjoyment of life. CSX’s position lacks merit.

Clearly, Rivenburgh testified that he experienced pain on the

day of the explosion. Moreover, he testified that the quality of

his life had changed due to the hearing loss he suffered as a re-

sult of the explosion. See (Tr. at 69, 70, 73, 74, 86, 87), Dkt. No.

100.

23a

ought not shock the judicial conscience and should be

upheld.

“If a district court finds that a verdict is exces-

sive, it may order a new trial, a new trial limited to

damages, or, under the practice of remittitur, may

condition a denial of a motion for a new trial on the

plaintiffs accepting damages in a reduced amount.”

Ahlf v. CSX Transp., 386 F. Supp. 2d 83, 87

(N.D.N.Y. 2005) (citation omitted). “A jury verdict is

not, certainly, something lightly to be set aside.” Id.

(citing Nairn v. Natl R.R. Passenger Corp., 837 F.2d

565, 566 (2d Cir. 1988)). Whether a verdict is exces-

sive is a question of law. See id. A verdict is consid-

ered excessive when it “shocks the judicial con-

science, and... exceeds what a reasonable jury

could have returned for the plaintiff if it followed the

court’s instructions.” Jd. (citing Mazyck v. Long Is-

land R.R. Co., 896 F.Supp. 1330, 1336 (E.D.N.Y.

1995)). However. “the jury’s award should not be

disturbed unless ‘the quantum of damages found by

a jury is clearly outside the maximum limit of a rea-

sonable range.” Id. (citation omitted). A court’s con-

sideration of the excessiveness of a jury award turns

on the particular facts of each case. See AAlf, 386 F.

Supp. 2d at 88. Moreover, a court reviewing a jury

award must view “the evidence pertaining to pain

and suffering in the light most favorable to the plain-

tiff[.] .. .” 7d. (internal quotation marks and citation

omitted).

Maintaining that the verdict was excessive be-

cause Rivenburgh suffered hearing loss at only one

frequency, CSX cites a New York appellate case that

considered such damages for a partial hearing loss.

24a

See Preston v. Young, 239 A.D.2d 729 (1997).6 As

Rivenburgh points out, Preston is factually distin-

guishable. First, the plaintiff in Preston sought re-

covery for an alleged injury to his right ear that he

suffered in a 1993 accident. See id. at 729. Secondly,

the plaintiffs hearing loss in Preston was at a level

for high pitches and did not hinder his ability to hear

normal conversations. See id. at 731. Thus, Preston

is not directly or point.

When assessing the excessiveness of a jury

award, “courts have found it useful to review awards

in other cases involving similar injuries, while bear-

ing 1n mind that any given judgment depends on a

unique set of facts and circumstances.” Ahlf, 386 F.

Supp. 2d at 88 (internal quotation marks and cita-

tion omitted). In CSX Transportation v. Long, the

plaintiff sued CSX for hearing loss sustained from

years of exposure to train horns and machinery. See

CSX Transp. v. Long, 703 So.2d 892 (1996). The jury

returned a $1,000,000.00 verdict, and the Supreme

Court of Alabama reduced it to $500,000.00. See id.

at 899. In CSX Transportation v. Maynard, the jury

awarded the plaintiff $325,000.00 in compensatory

damages for hearing loss he suffered due to exposure

to machines emitting high noise levels. See CSX

Transp. v. Maynard, 667 So.2d 642, 643 (1995). In

6 CSX points out that there are eight different frequencies of

hearing in each ear. The frequency levels are: 250, 500, 1000,

2000, 3000, 4000, 6000, and 8000. CSX maintains that if only

the 2000 frequency level in the right ear was damaged as a re-

sult of the explosion, then only one sixteenth of Rivenburgh’s

total hearing was injured. See Dkt. No. 102.

In Preston, the court upheld the jury’s award of $2,000.09 for

past pain and suffering and $23,000.00 for future pain and suf-

fering. See Preston, 239 A.D.2d at 730.

25a

Guerrero v. American President Lines, Lid., the

Northern District of New York upheld a verdict in

the amount of $200,000.00 for the plaintiffs 55% loss

of hearing and total loss of taste and smell. See

Guerrero v. Am. President Lines, Lid., 394 F. Supp.

333, 338 (1975). The Court of Appeals of Ohio re-

cently affirmed a jury verdict of $102,000.00 in favor

of a plaintiff after he suffered from tinnitus’ due to

an explosion of a safety device nearby. See Mullet v.

Wheeling & Lake Erie Ry. Co., No. 81688, 2003 Ohio

App. LEXIS 2996, at *1 (Ct. App. Ohio June 26,

2003).

Rivenburgh suffered a permanent, irreversible

hearing loss in his right ear at the conversational

level. See (Tr. at 62), Dki. No. 100. His hearing was

strained prior to the explosion, and the additional

hearing loss worsened his quality of life. He testified

that the accident resulted in his having to wear a

hearing aid in his right ear. See (Tr. at 73). He also

explained to the jury that when he takes the hearing

aids out at night, he has to have:

two alarm clocks wake [him] up in the morn-

ing, one has big dials like this [sic] and an-

other one to back that up. [He] can’t hear the

phone, the TV playing. [He] ha[s] a constant

ringing all the time... , constant humming.

Everybody—for the first six months after the

accident ... sounded like they were talking like

Mickey Mouse, that’ s how bad it was.

(Tr. at 73). Moreover, the ringing and humming in

his ear worsened after the accident. See (Tr. at 74).

Tinnitus is “a noise in the ears, such as ringing, buzzing, roar-

ing or clicking.” DORLAND'S ILLUSTRATED MEDICAL DIC-

TIONARY 807 (28th ed.1994).

ES ee ey Tee ee

26a

He explained that his normal voice is now at a shout-

ing level, and that he has to “stare at people to hear

what they are saying.” Jd. Dr. Tan also testified that

Rivenburgh’s hearing loss was permanent, irreversi-

ble, and medically diagnosed. See Dr. Tan’s video-

tape testimony; Exhib. List P-8. Dkt. No. 92. As the

finder of fact, the jury was entitled to credit Dr.

Tan’s opinion.

On the basis of the testimony of Rivenburgh and

Dr. Tan together with other medical evidence admit-

ted at trial, the jury’s award was justified. Although

the award may be high in light of the cited cases

given the type of injury suffered by Rivenburgh, the

award does not “shock the judicial conscience.”

Moreover, the award is not so grossly excessive as to

constitute a miscarriage of justice.

b. Discounted Future Damages

The parties disagree in their calculations of the

present value of the future damages award. The

parties agreed to apply a two percent discount rate to

any award for future pain and suffering. Subse-

quently, both parties submitted calculations per-

formed by their own financial experts as to the pre-

sent value of $400,000.00, see Dkt. Nos. 105(4), 107,

and those submissions are inconsistent. See id.

Neither party has explained the difference. Accord-

ingly, the court reserves on this aspect of the mo-

tions, and affords the parties an additional fourteen

days to explain the difference, or reach an agree-

8 FN8. Rivenburgh’s economic expert calculated the present

value of $400.000.00 at $328,239.00 (at a 2% discount rate), and

CSX’s expert calculated the present value of $400,000.00 at

$321,916.99 (also at a 2% discount rate). See Dkt. Nos. 105(4),

107.

27a

ment. Absent an agreement, the court will either re-

solve the issue on the basis of the additional submis-

sions, or schedule a hearing.

WHEREFORE, for the foregoing reasons, it is

hereby

ORDERED that CSX’s motions for judgment

notwithstanding the verdict or, alternatively, for a

new trial are DENIED, and it is further

ORDERED that the court reserves on the entry

of judgment of the jury’s $400,000.00 award for fu-

ture pain and suffering, and it is further

ORDERED that the parties submit a stipulation

regarding the discounted value of the award for fu-

ture pain and suffering or, alternatively, explana-

tions for their differing calculations within FOUR-

TEEN (14) DAYS from the filing date of this Memo-

randum- Decision and Order.

IT IS SO ORDERED.

eee

28a

APPENDIX C

The Federal Employer's Liability Act, 45 U.S.C.

§§ 51-60, provides as follows:

§ 51. Liability of common carriers by railroad,

in interstate or foreign commerce, for injuries

to employees from negligence; employee de-

fined

Every common carrier by railroad while engaging

in commerce between any of the several States or

Territories, or between any of the States and Territo-

ries, or between the District of Columbia and any of

the States or Territories, or between the District of

Columbia or any of the States or Territories and any

foreign nation or nations, shall be liable in damages

to any person suffering injury while he is employed

by such carrier in such commerce, or, in case of the

death of such employee, to his or her personal repre-

sentative, for the benefit of the surviving widow or

husband and children of such employee; and, if none,

then of such employee’s parents; and, if none, then of

the next of kin dependent upon such employee, for

such injury or death resulting in whole or in part

from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect

or insufficiency, due to its negligence, in its cars, en-

gines, appliances, machinery, track, roadbed, works,

boats, wharves, or other equipment.

Any employee of a carrier, any part of whose du-

ties as such employee shall be the furtherance of in-

terstate or foreign commerce; or shall, in any way di-

rectly or closely and substantially, affect such com-

merce as above set forth shall, for the purposes of

this chapter, be considered as being employed by

29a

such carrier in such commerce and shall be consid-

ered as entitled to the benefits of this chapter.

§ 52. Carriers in Territories 6r other posses-

sions of United States

Every common carrier by railroad in the Territo-

ries, the District of Columbia, the Panama Canal

Zone, or other possessions of the United States shall

be liable in damages to any person suffering injury

while he is employed by such carrier in any of said

jurisdictions, or, in case of the death of such em-

ployee, to his or her personal representative, for the

benefit of the surviving widow or husband and chil-

dren of such employee; and, if none, then of such em-

ployee’s parents; and, if none, then of the next of kin

dependent upon such employee, for such injury or

death resulting in whole or in part from the negli-

gence of any of the officers, agents, or employees of

such carrier, or by reason of any defect or insuffi-

ciency, due to its negligence, in its cars, engines, ap-

pliances, machinery, track, roadbed, works, boats,

wharves, or other equipment.

§ 53. Contributory negligence; diminution of

damages

In all actions on and after April 22, 1908 brought

against any such common carrier by railroad under

or by virtue of any of the provisions of this chapter to

recover damages for personal injuries to an em-

ployee, or where such injuries have resulted in his

death, the fact that the employee may have been

guilty of contributory negligence shall not bar a re-

covery, but the damages shall be diminished by the

jury in proportion to the amount of negligence at-

tributable to such employee: Provided, That no such

employee who may be injured or killed shall be held

30a

to have been guilty of contributory negligence in any

case where the violation by such common carrier of

any statute enacted for the safety of employees con-

tributed to the injury or death of such employee.

§ 54. Assumption of risks of employment

In any action brought against any common car-

rier under or by virtue of any of the provisions of this

chapter to recover damages for injuries to, or the

death of, any of its employees, such employee shall

not be held to have assumed the risks of his employ-

ment in any case where such injury or death resulted

in whole or in part from the negligence of any of the

officers, agents, or employees of such carrier; and no

employee shall be held to have assumed the risks of

his employment in any case where the violation by

such common carrier of any statute enacted for the

safety of employees contributed to the injury or

death of such employee.

§ 55. Contract, rule, regulation, or device ex-

empting from liability; set-off

Any contract, rule, regulation, or device whatso-

ever, the purpose or intent of which shall be to en-

able any common carrier to exempt itself from any

lability created by this chapter, shall to that extent

be void: Provided, That in any action brought

against any such common carrier under or by virtue

of any of the provisions of this chapter, such common

carrier may set off therein any sum it has contrib-

uted or paid to any insurance, relief benefit, or in-

demnity that may have been paid to the injured em-

ployee or the person entitled thereto on account of

the injury or death for which said action was

brought.

3la

§ 56. Actions; limitation; concurrent jurisdic-

tion of courts

No action shall be maintained under this chapter

unless commenced within three years from the day

the cause of action accrued.

Under this chapter an action may be brought ina

district court of the United States, in the district of

the residence of the defendant, or in which the cause

of action arose, or in which the defendant shall be do-

ing business at the time of commencing such action.

The jurisdiction of the courts of the United States

under this chapter shall be concurrent with that of

the courts of the several States.

§ 57. Who included in term “common carrier”

The term “common carrier” as used in this chap-

ter shall include the receiver or receivers or other

persons or corporations charged with the duty of the

management and operation of the business of a

common carrier.

§ 58. Duty or liability of common carriers and

rights of employees under other acts not im-

paired

Nothing in this chapter shall be held to limit the

duty or liability of common carriers or to impair the

rights of their employees under any other Act or Acts

of Congress.

§ 59. Survival of right of action of person in-

jured

Any right of action given by this chapter to a per-

son suffering injury shall survive to his or her per-

sonal representative, for the benefit of the surviving

widow or husband and children of such employee,

and, if none, then of such employce’s parents; and, if

he oo

eee LD oe ne a oe

;

32a

none, then of the next of kin dependent upon such

employee, but in such cases there shall be only one

recovery for the same injury.

§ 60. Penalty for suppression of voluntary in-

formation incident to accidents; separability

Any contract, rule, regulation, or device whatso-

ever, the purpose, intent, or effect of which shall be

to prevent employees of any common carrier from

furnishing voluntarily information to a person in in-

terest as to the facts incident to the injury or death of

any employee, shall be void, and whoever, by threat,

intimidation, order, rule, contract, regulation, or de-

vice whatsoever, shall attempt to prevent any per-

son from furnishing voluntarily such information to a

person in interest, or whoever discharges or other-

wise disciplines or attempts to discipline any em-

ployee for furnishing voluntarily such information to

a person in interest, shall, upon conviction thereof,

be punished by a fine of not more than $1,000 or im-

prisoned for not more than one year, or by both such

fine and imprisonment, for each offense: Provided,

That nothing herein contained shall be construed to

void any contract, rule, or regulation with respect to

any information contained in the files of the carrier,

or other privileged or confidential reports.

If any provision of this chapter is declared un-

constitutional or the applicability thereof to any per-

son or circumstances is held invalid, the validity of

the remainder of the chapter and the applicability of

such provision to other persons and circumstances

shall not be affected thereby.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.