Report on Oral Argument in Norfolk Southern v. Sorrell
on Oct 11, 2006 at 12:24 pm
In a rare afternoon session Tuesday, the Court heard oral argument in Norfolk Southern Railway Company v. Sorrell, a case involving the proper interpretation of the Federal Employer’s Liability Act (FELA). For a discussion of the issues in the case and the parties’ briefs, see the pre-argument write-up here. The transcript is available here.
(For those interested in Supreme Court minutia, the Court began the afternoon session without the “Oyez, Oyez, Oyez!” one usually expects when the Justices enter the courtroom, the day’s session having been previously announced in the morning and simply suspended for lunch).
A good deal of petitioner’s oral argument time was devoted to the question of what issues the Court should actually decide in this case. Although Norfolk Southern had requested that the Court decide the causation standard for both employer and employee negligence in a comparative negligence case, a number of Justices expressed concern that the railroad had not actually objected to the instruction on employer negligence in the trial court and had, in fact, asked for an instruction on employee negligence that petitioner now argued was incorrect.
Petitioner’s counsel responded by arguing that the railroad’s principal objection to the jury instructions was that they imposed different causation standards for employer and employee negligence. Thus, the railroad’s first request to the Court was that it rule that the standards must be the same, as they traditionally were at common law. The Court could resolve the case on that ground, counsel said, but it could also go further and decide what that uniform standard should be. And if it does so, petitioner argued that the proper standard is one of proximate causation for both employer and employee claims of negligence.
Justice Scalia pointed out that the Court had, in fact, denied a number of prior petitions for certiorari asking the Court to decide whether proximate cause is the proper standard for employer negligence under FELA and that eleven circuits had rejected the railroad’s view of the statute. “Do you really expect to get five votes for the railroad on this, what would be a massive change of what is assumed to be the law for, what, 50 years?” Scalia asked.
Although everyone laughed when petitioner’s counsel said “yes, of course I expect to get five votes for that,” it appeared later in the argument that he just might. Justice Scalia himself made quite clear that he believed that the eleven circuits were wrong in applying a lesser standard for employer liability and questioned whether the rule was entitled to much stare decisis respect, given that it is not the type of legal rule upon which employees are likely to rely. (Justice Kennedy offered, however, that it is the kind of rule upon which Congress might rely in not amending the statute). The Chief Justice, and Justices Souter and Breyer also expressed skepticism of the accepted rule in the circuits.
Counsel for respondent argued that the circuit view was faithful to the Court’s decision in Rogers v. Missouri, 352 U.S. 500 (1957), but that prompted an extended grilling by Justice Souter, who clearly believed that the case had been over-read by the lower courts. Respondent nonetheless argued that the asymmetrical causation standards were consistent with Congress’s broader FELA strategy of reducing barriers to recovery for employees and that, in any event, respondent had failed to preserve any argument in favor of a uniform rule of proximate causation in the lower courts.
It is difficult to predict how much the Court will decide, what it will hold, and whether that holding will lead to affirmance or reversal in this case. There was, for example, a good deal of talk about whether the jury instructions in this case were erroneous even if proximate causation is uniformly required.
For that reason, it may well turn out that both parties could come away from the case with what they apparently want most — respondent could preserve his verdict even while the Court provided the railroad with a broader victory on a legal question of recurring significance to the industry.
Finally, to follow up on a point I made in my pre-argument post: I suggested that Norfolk Southern had taken a calculated gamble in asking the Court to decide the employer liability standard question in this case, and in asking the Court to hold that proximate cause is the right uniform standard, given that it had argued the opposite to the trial court. It appears from the argument that the gamble was worthwhile. Other than having to endure some tough questioning for half an hour yesterday, it appears that the railroad will at least not be any worse off for what its counsel acknowledged at oral argument was an aggressive tactic. That is, there was no vocal constituency on the Court for dismissing the case as improvidently granted (as respondent requested). At most, it appears, the Court may simply limit itself to deciding whether the jury in this case was correctly instructed on the employee liability standard.
