Supreme Court upholds long-standing FELA causation standard

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Supreme Court upholds long-standing FELA causation standard 

Courtney L. Davenport

A divided U.S. Supreme Court recently handed railroad workers a victory, affirming the long-standing rule that the Federal Employers’ Liability Act (FELA) liability standard requires only that an injured railroad worker show that his or her employer’s negligence played a part, no matter how small, in the worker’s injuries. (CSX Transp., Inc. v. McBride, 2011 WL 2472795 (U.S. June 23, 2011).)

The low-hurdle causation standard has been in place since the Supreme Court’s decision in Rogers v. Missouri Pacific Railroad Co. (352 U.S. 500 (1957)), and trial lawyers were alarmed when the Court agreed to revisit the issue.

“It has been a historically conservative and pro-business Court, and there was a great fear among railroad lawyers that this was an opportunity for the railroads to change the law in their favor and raise the burden for plaintiffs to bring a case before a jury,” said Robert Marcus of O’Fallon, Illinois, who was one of the plaintiff’s attorneys.

Under FELA, every railroad carrier is liable to employees for injuries “resulting in whole or in part from the negligence” of the railroad. In Rogers, the Court held that plaintiffs can establish liability with proof that “employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.”

For more than 50 years, federal courts and many state courts have applied that standard. But in 2007, a concurring opinion by Justice David Souter opened the door to fresh scrutiny by declaring in dicta that Rogers referred only to injuries involving contributory negligence and wasn’t meant to displace common law requirements that plaintiffs prove proximate cause by showing a direct connection between the alleged negligence and the injury. (Norfolk So. Ry. Co. v. Sorrell, 549 U.S. 158 (2007).)

When CSX engineer Robert McBride sued the railroad, claiming his hand injury was caused by CSX’s negligence, the district court—in a decision later affirmed by the Seventh Circuit—refused to give a common law proximate cause instruction to the jury. According to Marcus, CSX decided this was the right time to challenge the FELA standard.

In a 5–4 decision written by Justice Ruth Bader Ginsburg, the Court said that both FELA’s language and the Rogers holding clearly say employers can be liable if they played any part in the employee’s injury.

In fact, the Court noted, Rogers relied on a previous case that specifically said FELA was meant to override traditional common law standards for causation. When the statute says “in whole or in part,” the Court ruled, it refers to a general causation standard; it isn’t meant to reflect only that railroads remain liable even if there are contributory causes, as CSX and the dissent suggested.

“Jurors can comprehend those words and apply them in light of their experience and common sense,” Ginsburg wrote. “Unless and until Congress orders otherwise, we see no good reason to tamper with an instruction tied to FELA’s text, long employed by other courts, and hardly shown to be unfair or unworkable.”

Fred Bremeth of Minnetonka, Minnesota, who frequently represents plaintiffs in FELA cases, said the instruction is easy to understand and, contrary to CSX’s argument, hasn’t led to “horror stories” of awards completely unconnected to the company’s negligence.

“The railroads want to be able to get up there and use big lawyer words to confuse the jury,” he said.

“The reality is that there are usually some finite events or things that have happened at work that either did or did not cause the person’s injuries. If it’s just too remote, the jury is going to use common sense.”

Courtney L. Davenport is an associate editor with AAJ’s Law Reporters and a contributing writer for Trial.

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