Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

MYERS v. ILLINOIS CENTRAL RAILROAD CO. (December 15, 2010)

Timothy Myers joined the Illinois Central Railroad (now part of CN Southern) right after his high school graduation. He worked for the Railroad for over 30 years in a number of jobs. All of his jobs were physically demanding and dangerous. Over his career. Myers injured an ankle, both knees, an elbow, and his back. He had surgeries on his back (twice) and on his left elbow and his right knee. He brought suit against the Railroad under the Federal Employers' Liability Act (FELA). He alleged that his physical problems were caused by the Railroad's failure to provide a safe workplace. Myers listed four experts -- three treating physicians and an ergonomist. Chief Judge McCuskey (C.D. Ill.) struck all four experts and granted summary judgment to the Railroad. Myers appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton affirmed. FELA is not a strict liability scheme -- negligence and causation are both required. Sometimes, expert testimony is unnecessary because a layperson can understand the causal link between particular conduct and an injury. Here, however, Myers does not allege a specific injury. He alleges gradual deterioration. The Court stated that the general rule in such cases is that expert testimony on causation is required. That general rule applies here. Although Myers proffered four experts, none of them can satisfy this requirement. The ergonomist can testify about the dangerous conditions in a rail yard but cannot link those conditions to any specific injury. The treating physicians were prepared to offer an opinion that the working conditions were the cause of Myers' injuries. However, the Court concluded that those opinions were general medical opinions that were not the product of any particular acceptable methodology. Indeed, the treating physicians simply made causation assumptions. The district court did not err in striking the experts, nor in granting summary judgment. 

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DEERING v. NATIONAL MAINTENANCE & REPAIR (December 2, 2010)

On March 11, 2009, the Mississippi River was at flood stage. Vincent Deering, a riverboat pilot for National Maintenance & Repair, was operating a towboat moving barges at a National facility. Deering had difficulty controlling the boat (because, he alleges, of a defective steering mechanism). Another boat offered assistance but ended up making matters worse. The towboat sank and Deering suffered serious injuries. Deering filed suit in state court under the Jones act and admiralty law. National filed a Limitation of Liability Act petition in federal court. Under that Act, a shipowner’s liability is limited to the ship’s value (here, according to National, a $30,000 salvage value). The federal court stayed the state action, Deering refiled his claims in federal court, and National filed a counterclaim for the value of the ship. Deering moved for dismissal of the counterclaim. Judge Herndon (S.D. Ill.) granted the motion on the grounds that counterclaims that are, by their very nature, setoffs to Jones Act claims, are not allowed. National appeals.

In their opinion, Seventh Circuit Court of Appeals Judges Posner, Kanne, and Williams affirmed. As it frequently does, the Court first addressed its jurisdiction. National relied on § 1292(a)(3), which allows interlocutory appeals from orders "determining the rights and liabilities of the parties." The principal purpose of this section is to allow appeals from liability determinations in admiralty cases before the usually separate and frequently costly relief proceedings. Although that is not the situation here, the Court noted that the appeal presented a case to those in which interlocutory appeals are allowed in non-admiralty cases: it involved a controlling question of law, the issue is separate from both the personal injury claim and the liability limitation petition, and none of the facts relevant to the underlying claims are relevant to the appeal. Also noting that other courts have allowed jurisdiction in these circumstances, the Court concluded that it did have jurisdiction to hear the appeal. The Court proceeded to the merits. The Federal Employers' Liability Act (FELA), which is incorporated by reference into the Jones Act, provides that "any . . . device whatsoever" that is intended to exempt a common carrier from liability is void. Here, the only purpose of the counterclaim is to act as a setoff to Deering's personal injury claim. Relying on the plain language of the statute, the state of the law at the time it was enacted, and public policy, the Court concluded that National's counterclaim was a void "device" under the Jones Act. The Court distinguished the Fifth Circuit's decision in Withhart, in which the court held that a counterclaim was not such a device. Withhart was a Jones Act case but relied principally on a prior FELA case. The Court noted several fundamental differences between the Jones Act and FELA that the Withhart case did not address that could have distinguished the case from the earlier precedent. It also questioned the correctness of both decisions. In the end, though, it merely distinguished Withhart. There was no limitation of liability issue in Withhart. The Court concluded that the "one-two punch" -- the combination of a property damage counterclaim and a limitation of liability petition that would wipe out a substantial injury claim -- was not allowed by the Act.

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MEYERS v. NATIONAL RAILROAD PASSENGER CORP. (AMTRAK)(August 30, 2010)

Greg Meyers was an Amtrak pipe fitter for years. It was a difficult job -- requiring lifting, twisting, reaching, etc., frequently in confined spaces. Meyers' size (approximately 350 pounds) made the job even more difficult. He started experiencing problems in 2004. He was referred to Dr. Rosseau, a neurosurgeon, who diagnosed him with cervical spondylosis and carpal tunnel syndrome. Rosseau performed carpal tunnel surgery in 2004 and back surgery in 2008. Dr. Tonino, an orthopedic surgeon, operated on his right shoulder in 2007. Meyers brought suit against Amtrak under the Federal Employers' Liability Act ("FELA"). He alleged that his injuries were caused by Amtrak's failure to use ordinary care. He relied on the Rosseau and Tonino expert reports and a report by his expert ergonomist. Judge Der-Yeghiayan (N.D. Ill.) granted partial summary judgment to Amtrak on statute of limitations grounds but then struck the reports of both doctors and the ergonomist. Without those reports and testimony, Meyers was unable to establish the elements of the offense. The court granted full summary judgment. Meyers appeals.

In their opinion, Judges Kanne, Williams, Hamilton affirmed. The Court addressed only the doctor expert issue. It stated that a party offering an expert witness who was retained to provide expert testimony in a case must comply with the requirements of Rule 26(a)(2). Those requirements include disclosing the bases of the expert's opinions and the reasons for them, which Meyers did not. The Court noted that it had never ruled on whether a treating physician is required to comply with those disclosure requirements if the subject of the opinion was not determined at the time of treatment. It concluded that a treating physician should be held to the same disclosure requirement if the physician is offered for testimony regarding the cause of injury and that testimony is based on a conclusion that was not made at the time of treatment. The testimony of Meyers' two doctors fits that definition and was properly excluded. Without those reports, there is no evidence of causation and summary judgment was appropriate.

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McBRIDE v. CSX TRANSPORTATION (March 16, 2010)

Robert McBride was a locomotive engineer for CSX Transportation. After several years as a long-distance engineer, McBride expressed an interest to transfer to a job where he would work more regular hours with fewer nights away from home. In April 2004, he went on a qualifying run with a supervising engineer. Much of the ten-hour shaft involved switching, the process of adding and dropping individual cars from the locomotive. The switching process requires heavy use of the manual brakes. Toward the end of his shift, while operating the brakes, McBride experienced extreme pain in his hand. He has since undergone two surgeries and physical therapy but still experiences pain and numbness. He filed an action for negligence under the Federal Employers' Liability Act. At trial, McBride offered an instruction on causation that would instruct the jury that defendant’s negligence had to play "a part - no matter how small" in bringing about the injury. CSX offered an instruction that included a requirement that defendant’s negligence be a "proximate cause" of the injury. The court used the McBride instruction. The jury found in McBride's favor. CSX appeals.

In their opinion, Judges Ripple, Rovner, and Sykes affirmed. The Court first noted that courts have "grappled" with the proper causation standard under FELA since the Act was passed. The Act provides that the injury must result "in whole or in part" from the employer's negligence. The Court noted that early cases did not conclude that the "in whole or in part of" language eliminated the common-law proximate cause requirement. Later cases, however, including the Supreme Court's decision in Rogers, suggested that a less stringent standard of causation should apply under FELA. Many courts of appeals interpreted Rogers as relaxing the standard of causation. The Supreme Court addressed the question again in Sorrell. Although the majority skirted the question, Justice Souter's concurring opinion stated that Rogers did not eliminate the proximate cause requirement. Justice Ginsburg's opinion, concurring in the judgment, stated her view that the causation standard in FELA cases is more relaxed than in tort litigation generally. Although the Court concluded that Justice Souter's position is a plausible one, it declined to adopt it. It noted that the majority in Sorrell did not even address the question, other statements of the Supreme Court have suggested a broader reading, and all other circuit courts that have addressed the issue have concluded that Rogers adopted a relaxed standard of probable cause. Finally, the Court noted that Congress is well aware of the decisions adopting a relaxed standard of causation and could clarify the FELA. It therefore found no error in the lower court's instruction.

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FLETCHER v. CHICAGO RAIL LINK, L.L.C. (May 28, 2009)

William Fletcher was injured while driving a utility vehicle in a rail yard. He sued Chicago Rail Link under the Federal Employers Liability Act. He alleged that the accident was caused by the railroad's failure to maintain the vehicle in a safe condition. A jury awarded him $700,000 in damages but also found that he was 50% negligent himself. Under FELA, such a finding would reduce the damages by one half unless the court finds that the employer violated "any statute enacted for the safety of employees" and that the violation contributed to the accident. The district court found that Chicago Rail Link had violated an Illinois Commerce Commission regulation and awarded full damages. Chicago Rail Link appeals.

In their opinion, Judges Posner, Manion and Kanne affirmed in part and reversed in part. The Court first noted that the "any statute" language in FELA includes regulations issued by a state agency which is "participating in investigative and surveillance activities" pursuant to 49 U.S.C. § 20105. Section 20105 allows the Secretary of Transportation to prescribe investigative and surveillance activities to enforce safety regulations and provides that a state may participate in those activities when the safety practices are regulated by a state authority. The Court disagreed with the lower court's ruling that all railroad worker safety regulations are included within § 20105. Rather, the Court concluded that FELA only applies to state regulations that support or implement federal safety norms. Since the Illinois regulation at issue was not such a regulation, the Court determined that it was not "any statute" as contemplated by FELA. The Court remanded for the 50% reduction in damages.

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