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Split Supreme Court Upholds Panel's Federal Employers' Liability Act Causation Standards Ruling

WASHINGTON, D.C. - (Mealey's) A split U.S. Supreme Court on June 23 upheld the Seventh Circuit U.S. Court of Appeals' determination that Rogers v. Missouri Pacific R. Co. (352 U.S. 500) relaxed the proximate cause requirement in Federal Employers' Liability Act (FELA) cases and that a trial court's paraphrase of the decision, that "Defendant 'caused or contributed to' Plaintiff's injury if Defendant's negligence played a part - no matter how small - in bringing about the injury," was appropriate (CSX Transportation, Inc. v. Robert McBride, No. 10-235, U.S. Sup.).

"FELA's 'in whole or in part' language is straightforward.  '[R]easonable foreseeability of harm is an essential ingredient of [FELA] negligence,' Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 117 (emphasis added).  If negligence is proved, however, and is shown to have 'played any part, even the slightest, in producing the injury,' Rogers, 352 U.S., at 506, then the carrier is answerable in damages even if '"the extent of the [injury] or the manner in which it occurred"' was not '[p]robable' or 'foreseeable.'  Gallick, 372 U.S. at 120-121, and n. 8.  Properly instructed on negligence and causation, and told, as is standard practice in FELA cases, to use their 'common sense' in reviewing the evidence, juries would have no warrant to award damages in far out 'but for' scenarios, and judges would have no warrant to submit such cases to the jury," Justice Ruth Bader Ginsburg wrote for the majority. 

Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined in the opinion.  Justice Clarence Thomas joined in all but Part III-A. 

Chief Justice John G. Roberts Jr. dissented, opining that the majority erred in dispensing with the well-established law. 

"'It is a well established principle of [the common] law, that in all cases of loss we are to attribute it to the proximate cause, and not to any remote cause: causa proximanon remota spectatur.'  Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 223 (1837) (Story, J.).  The Court today holds that this principle does not apply to actions under the Federal Employers' Liability Act (FELA), and that those suing under that statute may recover for injuries that were not proximately caused by the negligence of their employers.  This even though we have held that FELA generally follows the common law, unless the Act expressly provides otherwise; even though FELA expressly abrogated common law rules in four other respects, but said nothing about proximate cause; and even though our own cases, for 50 years after the passage of FELA, repeatedly recognized that proximate cause was required for recovery under that statute," he wrote. 

Justices Antonin Scalia, Anthony M. Kennedy and Samuel Anthony Alito Jr. joined in the dissent.   

[Editor's Note:  Full coverage will be in the July issue of Mealey's Litigation Report: Employment Law.  In the meantime, the order is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #73-110708-002Z.  For all of your legal news needs, please visit] 

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