Opinion analysis: Surprising allies affirm railroad worker’s award

Five Justices to four.  Justice Ruth Bader Ginsburg writes for one side – here, the majority.  And Chief Justice John Roberts writes for the other – here, the dissent.  So we can guess the line-up, right – liberals plus moderates versus conservatives?  Not this time.  In CSX, Justice Clarence Thomas joined Justice Ginsburg’s majority opinion.  That one surprising vote speaks volumes about how the Justices can defy the generic shorthand we often use as a proxy for how they think about actual cases.

The case involves the Federal Employers’ Liability Act (FELA), a law that Congress passed to protect, according to the majority, injured workers from the “exceptionally hazardous” railroad industry as it existed “at the dawn of the twentieth century.”  In the case, a railroad engineer, Robert McBride, sued CSX after hurting his hand using a manual brake on a train.  At trial, the court rejected the railroad’s request to instruct the jury to award damages to McBride only if it found that the railroad’s “negligence was a proximate cause of the injury,” which it in turn defined as the “natural or probable sequence” of CSX’s actions.  Instead, the district court instructed the jurors to use a less stringent standard, telling them that they should find in McBride’s favor if the railroad’s “negligence played a part – no matter how small – in bringing about the injury.”  When the railroad appealed, the Seventh Circuit affirmed.  It held that the district court’s instruction was proper because it “paraphrase[d]” the Supreme Court’s opinion in Rogers v. Missouri Pacific Railroad Co. (1957).

A majority of the Court agreed.  Justice Ginsburg’s opinion for the Court explained that the Court had “recognized that, in comparison to tort litigation at common law, a relaxed standard of causation applies under FELA.”  This stems in part from the text of FELA, which provides that employees can recover “for any injury or death resulting in whole or in part from the negligence” of the railroad.  The majority referred to this statutory text as “everyday” words.  Quoting from dissenting language in the famous tort case of Palsgraf v. Long Island Railroad Co. (N.Y. 1928), the majority pointed out that proximate cause, by contrast, is a tangle of judge-made rules built of “convenience, of public policy, [and] of a rough sense of justice” that act to “arbitrarily” cut off legal liability at a certain point in the line of causation.  Congress’s choice of words, the Court reasoned, pulled FELA clear of that morass.

The Court also noted that it had previously refused to impose a proximate cause requirement in Rogers, in which it had held that FELA allowed employees to recover as long as “employer negligence played any part, even the slightest,” in the injury.  This formulation corrected the “harsh and technical” state common-law rules – rules that, in the Court’s view, the dissent and CSX sought to restore.  Moreover, the Court continued, the Rogers standard is something that jurors “can comprehend . . . and apply . . . in light of their experience and common sense.”  Framed another way, according to the Court, Rogers simply applies the proximate cause standard in the context of FELA.  As a result, a key question for jurors is “what is reasonably foreseeable under like circumstances.”

Justice Thomas signed onto most – but not all – of the majority opinion.  Given that Justice Thomas often stresses the importance of following original intent, it was not surprising that he agreed with the majority’s textual analysis of FELA.  But for the same reason – that he so often prizes the intent of legislative and constitutional drafters – it perhaps was surprising that he signed on to the majority ode to “the goals of ‘stability’ and ‘predictability’ that the doctrine of stare decisis aims to ensure.”  (Not to put too fine a point on it, Justice Antonin Scalia was quoted in a 2004 book as claiming that Justice Thomas “doesn’t believe in stare decisis, period.”)  Justice Thomas, however, refrained from agreeing with the majority’s discussion about legal ambiguity in the doctrine of proximate cause, including the idea that merely using the term often confuses, rather than guides, juries.

The dissenters – Chief Justice Roberts, and Justices Scalia, Kennedy, and Alito – read both FELA and Rogers differently.  According to the Chief Justice, Congress knew how to say that the statute did not follow the common law.  And it did exactly that in four instances, exempting the statute from the common-law rules governing contributory negligence, fellow-servant liability, the assumption of risk defense, and contractual releases from liability.

But for proximate cause, according to the dissent, Congress did no such thing.  Rather, the statutory language on which the majority focuses “did indeed mark an important departure from a common law principle, but it was the principle of contributory negligence – not proximate cause.”  The Court’s decisions before Rogers did not remove the proximate cause requirement from FELA cases, he noted, and Rogers itself “left this law where it was.”  Even if every federal circuit has read Rogers to eliminate proximate cause, the Court did not decide cases by a “show of hands” by federal appellate courts.  And in any case, a raft of state court decisions has continued to apply traditional common-law rules to FELA.

Whatever its flaws, the dissent continues, proximate cause “limits liability at some point before the want of a nail leads to loss of the kingdom.”  (This is at least the second time that the Chief Justice’s dissents have channeled Ben Franklin’s nail-to-kingdom metaphor; he voiced a similar concern about bad farriers in Massachusetts v. EPA (2007)).  In other words, without proximate cause, a plaintiff suing under FELA need only meet the especially low burden of “but for” causation.  At that point, for FELA plaintiffs, “the sky’s the limit.”