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Railroad, maritime lawyers see victory in high court ruling

Although the case was closer than expected, attorneys who represent railroad workers are applauding the Supreme Court’s decision last week that applied a relaxed causation standard to injury claims under the Federal Employers Liability Act.

In a 5-4 opinion in which Justice Clarence Thomas was the unusual swing vote, the Court held in CSX Transportation Inc. v. McBride that an injured railroad worker need only prove that the railroad’s negligence played a part in his injury.

“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.

“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.

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.

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.

Lawyers USA is a sister publication of The Daily Record.