We won. The United States Supreme Court on June 23, 2011 issued its opinion in the FELA case of CSX v. McBride. The issue was whether the relaxed standard for causation in cases brought by railroad workers against their employers under the FELA, and accordingly also in cases brought by seaman against their employers under the Jones Act, was to stand or be changed. The Court ruled in a 5 to 4 decision that the relaxed standard would continue to be the law.
The following members of the Admiralty Section of AAJ provided the funds and clients to support an amicus brief in support of this standard: JOHN W. DEGRAVELLES, Baton Rouge, LA; J. NEALE DEGRAVELLES, Baton Rouge, LA; ROSS DIAMOND, Mobile, Alabama; S. SCOTT BLUESTEIN, Charleston, South Carolina; RICHARD J. DODSON, Baton Rouge, LA; KENNETH H. HOOKS, III, Baton Rouge. LA; PAUL EDELMAN, NY, NY; DANIEL O. ROSE, NY,NY; JOHN H. (JACK) HICKEY, Miami, FL; PAUL T. HOFMANN, NY, NY; TIMOTHY F. SCHWEITZER, NY, NY; JAMES P. JACOBSEN, Seattle, WA; CAROLYN M. LATTI, Boston, MA; DAVID F. ANDERSON, Boston, MA; CHARLES D. NAYLOR, San Pedro, CA; C. ARTHUR RUTTER III, Norfolk, VA; PAUL M. STERBCOW, New Orleans, LA; ROGER VAUGHAN, Tampa, FL; ANDREW L. WAKS, Miami, FL.
The alarm bells sounded at the end of December, 2010; In an FELA railroad workers case, the railroad giant CSX was taking an appeal to the United States Supreme Court to change the relaxed causation standard in FELA cases. This may have then changed the standard in all cases brought by seaman against their employers, usually the shipowner, under the Jones Act. CSX wanted to change the age old standard of causation where the Defendant is liable if the negligent act contributed even in the slightest to causing the accident.
We went into action all during the holidays. Through hundreds of emails at all times of day and night, through Christmas Eve, Christmas day, New Years Eve, New years Day, and beyond between admiralty lawyers, most of whom are on the Executive Council of this Section, we retained Professor Michael Sturley of the University of Texas School of Law to write an Amicus Brief on behalf of certain seaman, some of our clients.
The amicus brief of Professor Sturley succinctly lays out the history of the Jones Act as follows:
Congress passed the Jones Act in 1920 to give injured seamen (or their estates) a negligence remedy against their employers – a remedy that this Court had previously denied in The Osceola, 189 U.S. 158, 175 (1903). Rather than detailing the requirements for this new cause of action, however, Congress instead declared that “in [the seaman’s] action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply.” Merchant Marine Act, c. 250, § 33, 41 Stat. 1007 (1920), codified as amended at 46 U.S.C. § 30104. In its first case under the Jones Act, this Court “readily understood” that the reference was to FELA “and its amendments.” Panama Railroad v. Johnson, 264 U.S. 375, 391-392 (1924). Congress had simply incorporated FELA by reference into the Jones Act.
The amicus brief then summarizes the argument which perhaps not coincidentally is reflected in Justice Ginsberg’s majority opinion. The brief says:
SUMMARY OF ARGUMENT
Petitioner invites this Court to make a revolutionary change in the law by abandoning the well established “relaxed” or “featherweight” standard of proximate cause that this Court articulated in Rogers and that lower courts have applied without difficulty for decades. This Court rejected the strict commonlaw proximate-cause approach in Ferguson v. MooreMcCormack Lines, Inc., 352 U.S. 521 (1957). Kernan v. American Dredging Co., 355 U.S. 426 (1958), also demonstrates that causation under the Jones Act PROSSER AND KEETON ON THE LAW OF TORTS § 41, at 264 (5th ed.1984). Modern scholarship thus prefers the term “legal cause.” See, e.g., id. This brief nevertheless adheres to the terminology used by the parties and many of the prior decisions, notwithstanding its shortcomings.
(and thus presumably under FELA) is not limited by narrow common-law doctrines. The lower courts have consistently followed the relaxed proximate-cause standard under the Jones Act for over 50 years. The secondary commentary also recognizes that the relaxed standard is firmly established. Changing that well-established regime at this time would be disruptive for all concerned. The relaxed proximate-cause standard is appropriate in view of the unique role that the Jones Act plays. Although a negligence statute, the Jones Act works in tandem with workers’ compensation regimes and serves many of the same goals. Seamen lack the other remedies that are commonly available to landbased workers. But they are exposed to far greater dangers. There is no need to impose a strict common-law proximate-cause standard under the Jones Act. That standard was intended largely to protect defendants from “infinite liability for all wrongful acts.” But Congress and this Court have created other limits under the Jones Act that help to ensure that only a limited class of plaintiffs are protected by the Jones Act, and there are limits on the available damages.
The case is described by the majority as follows:
This case concerns the standard of causation applicable in cases arising under the Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq . FELA renders railroads liable for employees’ injuries or deaths “resulting in whole or in part from [carrier] negligence.” §51. In accord with the text and purpose of the Act, this Court’s decision in Rogers v. Missouri Pacific R. Co. , 352 U. S. 500 (1957) , and the uniform view of federal appellate courts, we conclude that the Act does not incorporate “proximate cause” standards developed in nonstatutory common-law tort actions. The charge proper in FELA cases, we hold, simply tracks the language Congress employed, informing juries that a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury.
The genesis and basis of the FELA—and thus the relaxed standard of causation– were described by the Court which said:
The railroad business was exceptionally hazardous at the dawn of the twentieth century. As we have recounted, “the physical dangers of railroading … resulted in the death or maiming of thousands of workers every year,” Consolidated Rail Corporation v. Gottshall , 512 U. S. 532,542 (1994) , including 281,645 casualties in the year 1908 alone, S. Rep. No. 61–432, p. 2 (1910). Enacted that same year in an effort to “shif[t] part of the human overhead of doing business from employees to their employers,” Gottshall , 512 U. S., at 542 (internal quotation marks omitted), FELA prescribes:
“Every common carrier by railroad … shall be liable in damages to any person suffering injury while he is employed by such carrier … 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 … .” 45 U. S. C. §51 (emphasis added).
The Court made it clear that this standard takes into account that in the FELA (and Jones Act) context, there may be many causes at work to produce the accident and that the accepted standard here is a departure from the common law concept of proximate cause. The Court said:
Rogers is most sensibly read as a comprehensive statement of the FELA causation standard. Notably, the Missouri Supreme Court in Rogers did not doubt that a FELA injury might have multiple causes, including railroad negligence and employee negligence. See 284 S. W. 2d, at 472 (reciting FELA’s “in whole or in part” language). But the railroad’s part, according to the state court, was too indirect, not sufficiently “natural and probable,” to establish the requisite causation. Ibid. That is the very reasoning the Court rejected in Rogers . It is also the reasoning CSX asks us to resurrect.
Our understanding is informed by the statutory history and precedent on which Rogers drew. Before FELA was enacted, the “harsh and technical” rules of state common law had “made recovery difficult or even impossible” for injured railroad workers. Trainmen v. Virginia ex rel. Virginia State Bar , 377 U. S. 1, 3 (1964) . “[D]issatisfied with the [railroad’s] common-law duty,” Congress sought to “supplan[t] that duty with [FELA’s] far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence.”Rogers , 352 U. S., at 507. Yet, Rogers observed, the Missouri court and other lower courts continued to ignore FELA’s “significan[t]” departures from the “ordinary common-law negligence” scheme, to reinsert common-law formulations of causation involving “probabilities,” and consequently to “deprive litigants of their right to a jury determination.”Id. , at 507, 509–510. Aiming to end lower court disregard of congressional purpose, the Rogers Court repeatedly called the “any part” test the “ single ” inquiry determining causation in FELA cases. Id. , at 507, 508 (emphasis added). In short, CSX’s argument that the Rogers standard concerns only division of responsibility among multiple actors, and not causation more generally, misses the thrust of our decision in that case.
The amicus brief, as does the majority opinion, tracks the precedent for this relaxed standard in the decisions of the United States Supreme Court, the circuit courts of appeals, and the lower courts, and the support for the standard by all of the respected commentators. Both discuss the opinion of the Court in another FELA case, Rogers v. Missouri Pacific R. Co. , 352 U. S. 500 (1957). The majority opinion notes:
In sum, the understanding of Rogers we here affirm “has been accepted as settled law for several decades.” IBP, Inc. v. Alvarez , 546 U. S. 21, 32 (2005) . “Congress has had [more than 50] years in which it could have corrected our decision in [ Rogers ] if it disagreed with it, and has not chosen to do so.” Hilton v. South Carolina Public Railways Comm’n , 502 U. S. 197, 202(1991) . Countless judges have instructed countless juries in language drawn from Rogers . To discard or restrict the Rogers instruction now would ill serve the goals of “stability” and “predictability” that the doctrine of statutory stare decisis aims to ensure. Ibid.
The response of Justice Roberts in his dissent was that the Court does not decide the law “based on a show of hands”. This is a curious remark which seems to run counter to the basic concept of stare decisis. This also runs counter to the political supporters of Justice Roberts- and the usual majority—who decry “judicial activism”, which to them is the act of going outside of stare decisis.
The Court discussed the jury instruction now approved and said:
The current model federal instruction, recognizing that the “FELA causation standard is distinct from the usual proximate cause standard,” reads:
“The fourth element [of a FELA action] is whether an injury to the plaintiff resulted in whole or part from the negligence of the railroad or its employees or agents. In other words, did such negligence play any part, even the slightest, in bringing about an injury to the plaintiff?” 5 L. Sand et al., Modern Federal Jury Instructions–Civil ¶89.02, pp. 89–38, 89–40, and comment (2010) (hereinafter Sand).
Since shortly after Rogers was decided, charges of this order have been accepted as the federal model. See W. Mathes & E. Devitt, Federal Jury Practice and Instructions §84.12, p. 517 (1965) (under FELA, injury “is proximately caused by” the defendant’s negligence if the negligence “played any part, no matter how small, in bringing about or actually causing the injury”).
Justice Roberts writing for the dissent calls this standard a “boundless theory of liability”. He said that the “Law has its limits. But no longer when it comes to the causal connection between negligence and a resulting injury covered by FELA. A new maxim has replaced the old: Caelum terminus est—the sky’s the limit.” The amicus and the majority opinion both observed that of course this standard also has its bounds for this standard of causation.
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John H. (Jack) Hickey is past Chair of the Admiralty Section of AAJ. He is Board Certified as a Civil Trial Lawyer by The Florida Bar and by the National Board of Trial Advocacy and practices with Hickey Law Firm, P.A. in Miami, FL. Hickey and his firm specialize in representing passengers and crewmembers in their claims against cruise lines.
