Supreme Court Watch Railroad, maritime lawyers see victory in court ruling Justice Thomas provides unusual swing vote, siding with railroad worker

By Sylvia Hsieh The Daily Record Newswire BOSTON, MA -- Although the case was closer than expected, attorneys who represent railroad workers are applauding the Supreme Court's ruling last week that applied a relaxed causation standard to injury claims under the Federal Employers' Liability Act. In a 5-4 ruling in which Justice Clarence Thomas was the unusual swing vote, the Court held in CSX Transportation, Inc. v. McBride that an injured railroad worker needs to prove only that the railroad's negligence played a part -- no matter how small -- in his injury, rather than the stricter common-law "proximate cause" standard. "I'm certainly pleased with the result, but I'm disappointed with the split. I thought that it should have been a no-brainer," said Michael Warshauer, a plaintiffs' railroad attorney in Atlanta, Ga. "I never thought I'd be saying, 'Thank God for Justice Thomas,'" said Steve Gordon of Gordon, Elias & Seely in Houston, who represents railroad workers. But railroad plaintiffs' attorneys are not the only ones celebrating. Also claiming victory are maritime and admiralty lawyers who represent employees hired to work on ships. This is because the Jones Act, which allows injured seamen to sue employers for injuries, closely tracks FELA. "There can be no doubt that the McBride decision applies not only to railroad workers but also to seamen," said Professor Michael Sturley, who teaches maritime and Supreme Court law at the University of Texas in Austin, and filed an amicus brief in the case on behalf of three injured seamen. "This decision affects every marine accident. Maritime lawyers are ecstatic," said Richard Shapiro, an attorney at Shapiro, Cooper, Lewis & Appleton in Virginia Beach, Va. In a pending case under the Jones Act, Kelly Clark, a Texas widow whose husband Aubrey worked on a barge, sued his former employer, alleging that his death from cancer was caused by regular exposure to benzene used to wash tools. After a bench trial, the judge found the plaintiff had proved causation under the relaxed standard, but not under a common-law proximate cause standard. The case was appealed, and both sides were gambling on what the Supreme Court said in McBride. "It was the whole ball game," said David Gunn, an attorney at Beck, Redden, & Secrest in Houston, who represents Clark. "If the Supreme Court had gone the other way, life would have turned out very different for my plaintiff." Relaxed standard Plaintiffs' lawyers who try cases under FELA and the Jones Act say the ruling nails down a causation jury instruction that they often got, but just as often had to fight over. Writing for the majority, Justice Ruth Bader Ginsburg said: "[I]t is not error in a FELA case to refuse a charge embracing stock proximate cause terminology. Juries in such cases are properly instructed that a defendant railroad 'caused or contributed to' a railroad worker's injury 'if the railroad's negligence played a part -- no matter how small -- in bringing about the injury.' That, indeed, is the test Congress prescribed for proximate causation in FELA cases." John Vail, vice president of the Center for Constitutional Litigation, said he expects the jury instruction to become uniform. "The one thing you know if you're plaintiff's counsel or a trial judge holding a charging conference is that you are not going to commit error by giving that instruction," said Vail, who helped write an amicus brief on behalf of the American Association for Justice. Plaintiffs' attorneys often hold up a piece of paper to the jury in closing arguments and then tear off a small corner, telling the jury that if the railroad's fault amounts to the smaller piece, that's enough to show causation. The ruling means lawyers can continue to use this analogy, Warshauer said. The Court also mentioned another jury instruction taken from a 1957 Supreme Court case that explained the FELA relaxed causation standard as whether employer negligence "played any part, even the slightest, in producing the injury or death for which damages are sought." (Rogers v. Missouri Pacific R. Co., 352 U.S. 500.) Most lawyers seemed to think the "a part, no matter how small" and "any part, even the slightest" were interchangeable. "To me, as a practitioner, I don't think there's a whit of difference," said Shapiro. He said that while McBride was pending, he avoided both of the jury instructions, instead opting for an instruction using language directly from the statute that says a carrier is liable for injuries resulting "in whole or in part" from its negligence. With that instruction, he still won an $8.6 million verdict. Another bolder argument plaintiffs may try to raise is that the ruling allows a plaintiff to prove causation by showing only that "but for" the defendant's conduct, the injury would not have occurred. This comes from the dissent, in which Chief Justice John Roberts accused the majority of imposing simple "but-for" liability and removing any limit that the defendant's negligence be a "proximate" cause. "The ideal plaintiffs' position would be for bare but-for causation. This is one argument plaintiffs will be making if the case calls for it," said David Robertson, a law professor at the University of Texas in Austin who will speak to a group of plaintiffs' attorneys about McBride next month. This is likely to come up in cases where defendants argue that the plaintiff's injury is too far removed from the defendant's negligence to create a causal connection. William Jungbauer, a plaintiffs' attorney at Yaeger Jungbauer in St. Louis, who wrote an amicus brief for the American Railroad Lawyers Association, said "my new jury instruction in FELA cases is going to be from Chief Justice Roberts: 'The sky's the limit.' That's what it's always been and always should be." But Robertson added that defendants will respond by saying that the majority said it was not applying but-for causation, and that even the relaxed standard still requires that the injury be caused by the defendant's negligence, not the defendant's conduct. "Justice Ginsburg is trying her best to keep some but-for-plus in there, and she just barely allows it in the word 'negligence' rather than 'conduct,'" said Robertson. Pushing the boundaries While some plaintiffs' lawyers see the ruling more as dodging a bullet than creating major change, others see areas where the case may be used to push the boundaries of how much evidence a FELA or Jones Act plaintiff must show to prove causation. Plaintiffs' lawyers have argued that a plaintiff's burden to prove factual causation is analogous to a "featherweight." "Plaintiffs have had a lot of trouble with that. ... Well, now the Court has blessed the featherweight approach. It's a creative argument and stretching it, [but] clearly possible," said Robertson. Jungbauer reads the ruling as the beginning of the end of proximate cause in all cases. "This is the most important tort case in well over 50 years. The real battle in this case is whether to abandon proximate cause in all tort cases," said Jungbauer, noting that four of the five justices in the majority signed onto Section IIIA of the decision, which complained about the term "proximate cause," calling it "notoriously confusing." But Robertson thought this might be reading too much into the decision. "We listen for whispers from the Supreme Court the way truly religious people wait to hear from God," he said. Published: Fri, Jul 8, 2011