At Monday's argument in CSX Transportation v. McBride, the Court spent an hour considering the proper standard for liability under the Federal Employers' Liability Act (FELA), which allows rail workers to recover for injury or death resulting "in whole or in part" from their employer's negligence.  Much of the hour was spent in efforts to flesh out exactly what each side's proposed standard would mean in practice, and in the end, it was not clear how the Justices might rule.

Arguing on behalf of the railroad, Charles Rothfeld billed the case as a "simple" one.  He explained that the railroad was in "the happy situation of having to try to convince the Court that its prior decisions were correct":  FELA does indeed contain a proximate cause requirement, similar to the common-law approach employed in other contexts.  However, Rothfeld quickly encountered questions (including from Justice Anthony Kennedy) about whether FELA in fact employed a more relaxed standard than proximate cause, and "“ if the standard is in fact more relaxed "“ what the source of that standard might be.  Rothfeld responded by reiterating that a FELA plaintiff is required to demonstrate that the injury for which he seeks compensation "followed in a natural, probable, foreseeable way from the wrongful conduct."  And he distinguished the Court's 1957 decision in Rogers v. Missouri Pacific Railroad as not addressing causation for FELA purposes at all.

The Court then turned to the language of the jury instruction that was given in this case, which called upon the jury to determine whether McBride's injury "result[ed] in whole or in part from the railroad's negligence."  What language, Justice Ginsburg asked Rothfeld, should the trial judge have used instead?  Rothfeld once again responded that the instruction should have defined proximate cause "“that is, it should have asked whether the plaintiff's injury "resulted from the wrongful conduct in a way that was natural, probable, and foreseeable."  That answer, however, drew criticism in two different respects.  First, the Chief Justice expressed skepticism regarding whether Rothfeld's proposed instruction and standard would actually make any difference to jurors:  in cases in which the railroad "had very little or nothing to do with what happened to the employee," the jury would make its decision regardless of the instruction.   Second, Justice Kennedy noted that the railroad's proposed instruction did not actually include the word "foreseeable."

The Court also pressed Rothfeld to flesh out the contours of his proposed standard, and in particular to provide a scenario illustrating negligence that would be a "but-for" cause of a plaintiff's injury but would not be a proximate cause of the injury.  Rothfeld described a situation in which a defective brake causes a train to stop suddenly.  If a railroad employee fell and injured himself when the train stopped suddenly, the defective brake would be a proximate cause of the injury.    However, if the railroad employee were injured not during the stop itself, but instead after the stop, because he fell or was bitten by a snake when he walked along the track in an effort to determine the problem, that would be a "but-for" cause of the injury but not a proximate cause.

Representing respondent McBride, David Frederick offered a sharply different view of the case, which he described as presenting a "non-existent problem and a solution that is in search of a non-existent problem."  In particular, Frederick emphasized, "there are no real reported cases where there have been problems arising under the Rogers instructions under the Federal Rules for 50 years."

As it had done with Rothfeld, the Justices pressed Frederick to explain how his rule would work in practice.  When asked whether the railroad would be liable under the "snake bite" scenario that arose during Rothfeld's turn at the podium, Frederick responded that it would not.  This led Justice Scalia to ask why it would not:  "how can you say [that the railroad's negligence] didn't play a part?  Of course it played a part."

Justice Scalia returned several times to the idea that Frederick was simply advancing a different version of proximate cause.  Frederick countered, however, that the Court in Rogers was trying to eliminate confusion over the proximate cause standard by "offering simple and direct instructions that juries could understand and apply, and that has been the case over the last 50 years."  But when Frederick reiterated that he regarded the jury instruction "“ which provided that the railroad would be liable "if [its] negligence played a part no matter how small in bringing about the injury" "“ as correct, Justice Scalia again pressed him to explain what the instruction meant.  Frederick responded that the instruction meant ""[b]ut for' plus a relaxed form of legal cause associating the negligence in playing part in producing the injury."  And, Frederick reiterated, "That's how Rogers understood it."

Frederick largely resisted further efforts to get him to explain exactly what it meant for negligence to "play[] a part" in an injury.  Instead, he sought to distinguish FELA, which he described as a substitute for workers' compensation and limited to lawsuits by injured employees, from other tort-law suits, in which the proximate cause standard was necessary "to guard the defendant's liability against the whole world."  At the same time, plaintiffs would only be compensated for their injuries; they would not get punitive damages:  "And so the result is that railmen know they're going to have to go before juries exercising their common sense."

In his rebuttal, Rothfeld emphasized that although Frederick "ha[d] struggled valiantly . . . he is unable to explain how his test is any different from a "but for' causation."  However, Rothfeld again encountered his own questions about what his proposed standard met.  He answered that the jury "has to find that there is some substantial probability that [the injury] will be the outcome" of the negligence.

Posted in CSX Transportation v. McBride, Merits Cases

Recommended Citation: Amy Howe, Argument recap: Court debates FELA standards, SCOTUSblog (Apr. 1, 2011, 9:08 AM), http://www.scotusblog.com/2011/04/argument-recap-court-debates-fela-standards/