In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3557
R OBERT M C B RIDE,
Plaintiff-Appellee,
v.
CSX T RANSPORTATION, INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:06-cv-01017-JPG-CJP—J. Phil Gilbert, Judge.
A RGUED M AY 29, 2009—D ECIDED M ARCH 16, 2010
Before R IPPLE, R OVNER and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Robert McBride instituted this
action under the Federal Employers’ Liability Act
(“FELA”), 45 U.S.C. §§ 51-60, seeking compensation for
an injury that he sustained while performing switching
operations for his employer, CSX Transportation, Inc.
(“CSX”). A jury returned a verdict in Mr. McBride’s
favor, and the district court entered judgment on the
jury’s verdict. CSX appealed, and, for the reasons set
2 No. 08-3557
forth in this opinion, we now affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
CSX operates an interstate system of railroads. In addi-
tion to transporting freight over long distances, it
makes “local” runs; that is, it picks up individual rail cars
for long-distance transportation or delivers cars to their
final destinations. The process of adding or removing
cars during these local runs is called “switching.” When
performing switching operations, engineers are required
to start and stop more frequently than when transporting
freight over long distances.
Trains use multiple brake systems in slowing to a
stop. The automatic brake slows the cars of the train; a
separate “independent brake” slows the locomotives.
CSX explains the operation of the braking systems in
this way:
The automatic brake normally activates the inde-
pendent brake as well, and careless use of the
former can cause the locomotives to brake too
quickly, leading the rear cars to run into those in
front. To slow a long train, engineers apply the
automatic brake while releasing the independent
brake, a maneuver known as “actuating” or “bail-
ing off” the independent brake. Standard practice
No. 08-3557 3
is to actuate the independent brake for four sec-
onds per locomotive.
Appellant’s Br. 7 (citations omitted). On some heavier,
“wide-body” locomotives, the independent brake is
actuated by pressing a button on the side of the brake
handle, located in front of the engineer’s seat. On smaller
locomotives, the independent brake is actuated by pushing
the handle down with one hand.
Mr. McBride began working for CSX in 1996 as a con-
ductor. In 1999, he became a locomotive engineer, and,
from 1999 until 2004, his work consisted primarily of
operating a train “from Evansville, Indiana, to Nashville,
Tennessee, and back again.” Tr. II at 87. However,
Mr. McBride was interested in transferring to a different
division “where they worked locals,” id. at 88, because
engineers on local runs worked regular, predictable
hours and did not often spend nights away from home.
Mr. McBride explained that the process of qualifying
to operate on a new territory involved being paired with
a supervising engineer, who “explains to you as you’re
running the train where everything is, how the land
lays, just the sightings. Explains the whole territory to
you.” Id. at 89.
On April 12, 2004, Mr. McBride went on a qualifying
run with supervising engineer, D.J. Baker. The run was
going to entail switching in at least four locations. When
Mr. McBride saw the train that he would be operating,
he was concerned because the two front engines were
wide bodies, which were followed by three conven-
tional cabs. Mr. McBride’s concern stemmed from the
4 No. 08-3557
fact that he never had switched with a wide body cab
before. See id. at 91. Mr. McBride explained that “[t]hey’re
not used for switching. From Evansville to Nashville,
they are used for coal trains and grain trains. So I was
never trained to use one for switching. They are not
used for that.” Id. Mr. McBride expressed this concern
to Baker. Baker then went to speak with the yardmaster, 1
but the yardmaster instructed Mr. McBride and Baker
to “take them as is.” Id. at 92. Mr. McBride and Baker
complied with this instruction.
Mr. McBride’s run began at 10:00 a.m. Mr. McBride
testified that, at the first stop, he switched cars for ap-
proximately two and one-half to three hours.
During this time, Mr. McBride testified, he was using
the independent brake and the actuation button “the
whole time.” Id. at 95. At the following two stops, Mr.
McBride performed switching operations for two hours
and one and one-half hours, respectively. Mr. McBride
stated that “[j]ust all day long I had been doing that,
grabbing it, pushing the button, grabbing it, pushing
the button. That’s constant what I was doing.” Id. at 98.
Mr. McBride was performing switching operations at
the final stop, at approximately 8:00 p.m., when the fol-
lowing events took place:
[T]he conductor told me to release the brakes . . . .
[W]hen the independent brakes is [sic] applied, its
1
The yardmaster is the manager at the railyard who puts the
engines on the trains. See Tr. at 90.
No. 08-3557 5
forward. So I was reaching to release them. By then
my hands and everything is [sic] numb because
I’ve been doing it for approximately seven or
eight hours constantly.
Now I ran my hand into the independent brake,
and it felt like—like somebody threw gas on my
hand and set it afire.
Id. at 99. Mr. McBride screamed and immediately put his
hand in his cooler. Baker operated the train during
their return to Evansville.
Mr. McBride underwent two surgeries on his hand and
extensive physical therapy as a result of his injury. He
returned to work in February 2005; however, he con-
tinued to experience pain, numbness and some limita-
tions in the use of his hand.
B. District Court Proceedings
Mr. McBride eventually sued CSX under the FELA for
damages resulting from his injury. His theory of
negligence was that, because of the configuration of the
trains to which he was assigned, the switching operation
required constant use of the actuator button. This use
caused his hand to fatigue, and, at some point, due to
the fatigue, his hand fell and hit the independent brake.
At trial, Mr. McBride proffered the following instruc-
tion on causation, which followed in substance the
6 No. 08-3557
Seventh Circuit Pattern Instruction.2 The proffered in-
struction stated:
Defendant “caused or contributed to” Plaintiff’s injury
if Defendant’s negligence played a part—no matter
how small—in bringing about the injury. The mere
fact that an injury occurred does not necessarily
mean that the injury was caused by negligence.
R.43 at 13. The pattern instruction cites as its authority
Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957),
which, according to the drafters of the instruction, stands
for the proposition that a “relaxed standard of causation”
applies in FELA cases and that the “common law
standard of proximate cause does not apply.” Fed. Civ.
Jury Instructions of the Seventh Cir. 9.02, cmt. a.
CSX countered with its own causation instruction:
In order to establish that an injury was caused by
the defendant’s negligence, the plaintiff must
show that (i) the injury resulted “in whole or in
part” from the defendant’s negligence, and (ii) the
defendant’s negligence was a proximate cause
of the injury.
2
The pattern instruction states:
Defendant “caused or contributed to” Plaintiff’s injury
if Defendant’s negligence played a part—no matter how
small—in bringing about the injury. [There can be more
than one cause contributing to an injury.] The mere fact
that an injury occurred does not necessarily mean that
the injury was caused by negligence.
Fed. Civ. Jury Instructions of the Seventh Circuit 9.02.
No. 08-3557 7
R.44 at 17. CSX also proffered the following instruction
defining “proximate cause”:
When I use the expression “proximate cause,”
I mean any cause which, in natural or probable
sequence, produced the injury complained of. It
need not be the only cause, nor the last or nearest
cause. It is sufficient if it concurs with some
other cause acting at the same time, which in
combination with it causes the injury.
Id. at 14. In support of its proffered instructions, CSX
maintained that, in Norfolk Southern Railway Co. v. Sorrell,
549 U.S. 158 (2007), the Supreme Court had clarified
that Rogers had not abandoned common-law proximate
cause, and, in fact, proximate cause was the proper stan-
dard for causation in cases under the FELA.
The court rejected CSX’s proffered instruction. Instead,
the court used Mr. McBride’s causation instruction, and
the jury returned a verdict in Mr. McBride’s favor. After
unsuccessfully challenging the jury’s verdict before
the district court, CSX appealed.
II
ANALYSIS
The central issue in this case is the proper standard
for causation under the FELA. Stated another way, the
question we must resolve is whether Section 1 of the FELA,
45 U.S.C. § 51, abrogates the common-law rule of proxi-
mate cause. We begin with the applicable statutory com-
mand. Section 51 of Title 45 provides in relevant part:
8 No. 08-3557
Every common carrier by railroad while engaging
in commerce between any of the several States or
Territories, or between any of the States and Terri-
tories, or between the District of Columbia and any
of the States or Territories, or between the District
of Columbia or any of the States or Territories and
any foreign nation or nations, shall be liable in
damages to any person suffering injury while he is
employed by such carrier in such commerce, or, in
case of the death of such employee, to his or her
personal representative, for the benefit of the
surviving widow or husband and children of such
employee; and, if none, then of such employee’s
parents; and, if none, then of the next of kin de-
pendent upon such employee, for such injury or
death resulting in whole or in part from the negligence
of any of the officers, agents, or employees of such
carrier, or by reason of any defect or insufficiency,
due to its negligence, in its cars, engines, appli-
ances, machinery, track, roadbed, works, boats,
wharves, or other equipment.
45 U.S.C. § 51 (emphasis added). The question of causa-
tion centers on the meaning of “resulting in whole or in
part from the negligence . . . of such carrier.” Id.
CSX submits that this language does not establish a
causation standard. Instead, according to CSX, common-
law proximate causation is—and always has been—the
proper causation standard under the FELA. Relying
heavily on Justice Souter’s concurring opinion in
Norfolk Southern Railway v. Sorrell, 549 U.S. 158 (2007), CSX
No. 08-3557 9
maintains that the Supreme Court never has abandoned
the holdings of its early FELA cases in which it explicitly
held that a plaintiff must establish proximate causation
in order to recover under the Act. CSX further claims,
also in reliance on Justice Souter’s concurrence, that the
Supreme Court’s decision in Rogers v. Missouri Pacific
Railroad Co., 352 U.S. 500 (1957), does not hold to the
contrary; according to CSX, Rogers did not purport to
speak to the question of proximate causation, but only to
the question of when a case with multiple causes must
be submitted to the jury. CSX acknowledges that other
Supreme Court cases, as well as cases in the courts of
appeals, have suggested, if not held, that Rogers estab-
lished a relaxed causation standard for FELA cases. It
argues, however, that many of these statements are
only dicta, but, even if not, they are at odds with
both the FELA itself and the methodology the Court
has adopted for interpreting that legislation.
Mr. McBride counters that Rogers in fact did interpret
the FELA as incorporating a relaxed causation standard.
He further points out that subsequent Supreme Court and
circuit cases, although perhaps not with an optimal
degree of discussion or explanation, have applied a
relaxed causation standard in FELA cases on the authority
of Rogers. He maintains that Justice Souter’s concurring
opinion in Sorrell should not be employed to undermine
Rogers and the wealth of authority that relies upon it.
In answering the question posed to us, we must acknowl-
edge, at the very outset, that we hardly write on a clean
slate. The question of the proper causation standard
10 No. 08-3557
under the FELA is one with which the courts have grap-
pled since passage of the Act. We look to these decisions to
guide our own inquiry. See Pearson v. Callahan, 129 S. Ct.
808, 816-17 (2009) (“We recognize that ‘considerations of
stare decisis weigh heavily in the area of statutory construc-
tion, where Congress is free to change this Court’s inter-
pretation of its legislation.’ ” (quoting Illinois Brick Co.
v. Illinois, 431 U.S. 720, 736 (1977))).
A. Cases Interpreting Causation in § 1
1. Early FELA cases
Early FELA cases did not interpret the language “re-
sulting in whole or in part” as altering the common-law
requirement of proximate cause.3 For instance, in St. Louis
3
The term “proximate cause” does not easily lend itself to
definition. There is not currently, and was not at the time of the
FELA’s passage, a uniform or generally accepted definition of
proximate cause. See William H. DeParcq, A Decade of Progress
Under the Federal Employers’ Liability Act, 18 Law & Contemp.
Probs. 257, 266-67 (1953) (discussing formulations of proximate
cause at common law). Indeed, with respect to the concept of
proximate cause, one noted commentator has stated:
There is perhaps nothing in the entire field of law
which has called forth more disagreement, or upon
which the opinions are in such a welter of confusion.
Nor, despite the manifold attempts which have been
made to clarify the subject, is there yet any general
agreement to the best approach.
(continued...)
No. 08-3557 11
& San Francisco Railroad Co. v. Conarty, 238 U.S. 243 (1915),
a widow sought damages for the death of her husband,
who was caught in a collision of an engine with another
car, from which the coupler and drawbar were missing.
According to the plaintiff, “[h]ad these appliances been
in place they, in one view of the evidence, would have
kept the engine and the body of the car sufficiently apart
to have prevented the injury.” Id. at 248. There was no
question that the absence of the coupler and the
drawbar constituted a violation of a safety rule and,
therefore, negligence. Nevertheless, the Court held that
there was not a sufficient nexus between the negligence
and the injury to send the case to the jury. In reaching this
determination, the Court observed:
3
(...continued)
W. Page Keeton, et al., Prosser & Keeton on the Law of Torts
§ 41 at 263 (5th ed. 1984).
In this case, however, CSX maintains that the correct defini-
tion of proximate causation is a “direct relation between
the injury asserted and the injurious conduct alleged.” Holmes v.
Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992); see also Eglsaer
v. Scandrett, 151 F.2d 562, 565-66 (7th Cir. 1945) (observing
that the common-law concept of proximate cause meant the
“direct, the complete, the responsible, the efficient cause of the
injury”); DeParcq, supra, at 266-67; cf. Hemi Group, LLC v. City
of New York, ___ S.Ct. ___, 2010 WL 246151, *5 (Jan. 25, 2010)
(stating that “[p]roximate cause for RICO purposes . . . should be
evaluated in light of its common-law foundations” and “requires
some direct relation between the injury asserted and the
injurious conduct alleged” (internal quotation marks and
citations omitted)). Thus, we shall employ CSX’s definition
for purposes of this opinion.
12 No. 08-3557
The principal question in the case is whether, at
the time he was injured, the deceased was within
the class of persons for whose benefit the safety ap-
pliance acts required that the car be equipped
with automatic couplers and drawbars of standard
height; or, putting it in another way, whether his
injury was within the evil against which the provi-
sion for such appliances are directed. It is not
claimed, nor could it be, under the evidence, that
the collision was proximately attributable to a
violation of those provisions, but only that, had
they been complied with, it would not have re-
sulted in injury to the deceased. It therefore is
necessary to consider with what purpose couplers
and drawbars of the kind indicated are required,
for where a duty is imposed for the protection
of persons in particular situations or relations a
breach of it which happens to result in injury to
one in an altogether different situation or relation
is not, as to him, actionable.
Id. at 249; see also Lang v. New York Cent. R.R. Co., 255 U.S.
455, 461 (1921) (referencing Conarty and noting the differ-
ence between proximate cause and “but for” causation). In
sum, the Court required that the injury be a direct or
proximate result of the violation of the safety regulation
(i.e., the negligent act) in order for liability under the
FELA to be imposed.
2. Rogers and related cases
These early cases never have been overruled explicitly;
however, thirty years later, one commentator observed
No. 08-3557 13
that “such cases are definitely inconsistent with later
decisions and it is safe to say would not be followed
today.” William H. DeParcq, A Decade of Progress Under the
Federal Employers’ Liability Act, 18 Law & Contemp. Probs.
257, 268 (1953). Specifically, the author referenced, inter
alia, the Supreme Court’s decision in Coray v. Southern
Pacific Co., 335 U.S. 520 (1949).
Coray involved an employee who had died as a result of
a collision between a freight train and a one-man flat
top motorcar. The motorcar was following the train
when the train, as a result of a defect in its braking
system, stopped suddenly. Although the motorcar was
equipped with brakes, both employees on the car were
looking backward and did not see that the train in front
of them had stopped. The state supreme court affirmed
the directed verdict in favor of the defendant on the
ground that the violation of the safety rule could not
constitute the basis for the company’s negligence because
its “protection against defective brakes did not extend to
employees following and crashing into a train which
stopped suddenly because of defective brake appli-
ances.” Id. at 522. Additionally, the state supreme court
held that “the evidence failed to show that the defective
appliance was the ‘legal’ cause of the crash and death
of decedent.” Id. Specifically, the state court “discussed
distinctions between ‘proximate cause’ in the legal sense,
deemed a sufficient cause to impose liability, and ‘cause’ in
the ‘philosophical sense,’ deemed insufficient to impose
liability.” Id. at 523.
The Supreme Court of the United States, however,
rejected this distinction; it stated:
14 No. 08-3557
The language selected by Congress to fix liability
in cases of this kind is simple and direct. Consider-
ation of its meaning by the introduction of dialecti-
cal subtleties can serve no useful interpretive
purposes. The statute declares that railroads
shall be responsible for their employees’ deaths
“resulting in whole or in part” from defective
appliances such as were here maintained. 45 U.S.C.
§ 51. And to make its purpose crystal clear, Con-
gress has also provided that “no such employee . . .
shall be held to have been guilty of contributory
negligence in any case” where a violation of the
Safety Appliance Act, such as the one here, “con-
tributed to the . . . death of such employee.” 45
U.S.C. § 53. . . . These air-brakes were defective;
for this reason alone the train suddenly and unex-
pectedly stopped; a motor track car following at
about the same rate of speed and operated by an
employee looking in another direction crashed
into the train; all of these circumstances were
inseparably related to one another in time and
space. The jury could have found that decedent’s
death resulted from any or all of the foregoing
circumstances.
Id. at 524 (parallel citations omitted); see also Tiller v. Atl.
Coast Line R.R. Co., 323 U.S. 574, 578 (1945) (reversing
decision of court of appeals, reinstating jury verdict and
holding that question whether violation of a safety rule
caused the employee’s death was one for the jury); Tennant
v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 33-34 (1944)
(same); cf. Kelley v. S. Pac. Co., 419 U.S. 318, 334 (1974)
No. 08-3557 15
(Douglas, J., dissenting) (observing that, since the 1939
Amendments to FELA, the “Court has interpreted the Act
in the spirit of those amendments” and a “[g]radual
liberalization has occurred, and the narrow, technical
approach of earlier years has been eschewed”).
In reviewing some of these same decisions, our own
court has concluded that, over the course of the FELA’s
history, the concept of “proximate cause” had broadened:
Perhaps the reconciliation of the earlier accepted,
sometimes called the old-fashioned idea, of “prox-
imate cause” as the direct or efficient cause of the
accident (as would be the district court’s illustra-
tion of a shock from a defective electric bell ringer
causing injuries and death) in cases where this
statute applies, and the conception of proximate
cause which now obtains, is to be found in the
enlarging phrase of the statute. It provides that if
the railroad’s negligence “in part” results in the
injuries or death, liability arises. Under the old
concept of proximate cause, that cause must have
been direct, the complete, the responsible, the
efficient cause of the injury. Contributing and
remotely related causes were not sufficient. Now,
if the negligence of the railroad has “causal rela-
tion,”—if the injury or death resulted “in part”
from defendants’ negligence, there is liability.
The words “in part” have enlarged the field or
scope of proximate causes—in these railroad injury
cases. These words suggest that there may be a
plurality of causes, each of which is sufficient to
16 No. 08-3557
permit a jury to assess a liability. If a cause may
create liability, even though it be but a partial
cause, it would seem that such partial cause may
be a producer of a later cause. For instance, the
cause may be the first acting cause which sets in
motion the second cause which was the immedi-
ate, the direct cause of the accident.
Eglsaer v. Scandrett, 151 F.2d 562, 565-66 (7th Cir. 1945).
Therefore, although more recent decisions still might
have employed language of “proximate cause,” that
term did not have the same teeth.
According to commentators, this new conception of
proximate cause “crystallized” in Rogers v. Missouri Pacific
Railroad Co., 352 U.S. 500 (1957). See Charles H. Traeger, III,
Legal Cause, Proximate Cause, and Comparative Negligence
in the FELA, 18 Stan. L. Rev. 929, 932 (1966). In Rogers,
a railroad laborer was given the job of burning
dead vegetation bordering tracks which ran over “a dirt
‘dump’ with sloping sides” and a “ballast topping.” Rogers,
352 U.S. at 501. The foreman had instructed the plaintiff
and his co-workers “to stop what they were doing
when a train passed and to take positions off the tracks
and ties to observe the journals of the passing train for
hotboxes.” Id. at 502. The plaintiff was standing a few
feet from an adjacent culvert, watching for hotboxes,
“when he became enveloped in smoke and flames” fanned
by a passing train. Id. The plaintiff covered his face,
“retreated quickly back on the culvert and slipped and
fell from the top of the culvert, suffering [] serious inju-
ries.” Id. A jury returned a verdict in favor of the plaintiff,
No. 08-3557 17
but the Missouri Supreme Court reversed. On writ of
certiorari, the Supreme Court held that “the evidence was
sufficient to support the jury finding for the petitioner.”
Id. at 503. It noted that the state supreme court had
based its reversal upon its finding of an alleged
admission by the petitioner that he knew it was
his primary duty to watch the fire. From that
premise the Missouri court reasoned that
petitioner was inattentive to the fire and that
the emergency which confronted him “was an
emergency brought about by himself.”
Id. at 503-04 (footnote omitted). The Court then evaluated
the state court’s rationale:
We interpret the foregoing to mean that the Mis-
souri court found as a matter of law that the peti-
tioner’s conduct was the sole cause of his mishap.
But when the petitioner agreed that his primary
duty was to watch the fire he did not also say that
he was relieved of the duty to stop to watch a
passing train for hotboxes. Indeed, no witness
testified that the instruction was countermanded.
At best, uncertainty as to the fact arises from the
petitioner’s testimony, and in that circumstance
not the court, but the jury, was the tribunal to
determine the fact.
We may assume that the jury could properly
have reached the court’s conclusion. But, as the
probative facts also supported with reason the
verdict favorable to the petitioner, the decision
was exclusively for the jury to make. The jury
18 No. 08-3557
was instructed to return a verdict for the respon-
dent if it was found that negligence of the peti-
tioner was the sole cause of his mishap. We must
take it that the verdict was obedient to the
trial judge’s charge and that the jury found that
such was not the case but that petitioner’s injury
resulted at least in part from the respondent’s
negligence.
Id. at 504-05 (footnotes omitted).
The Supreme Court also believed that the state court
opinion could be read as basing its reversal on the
ground that “it appeared to the court that the petitioner’s
conduct was at least as probable a cause for his mishap
as any negligence of the respondent, and that in such case
there was no case for the jury.” Id. at 505. The Supreme
Court rejected this idea:
But that would mean that there is no jury question
in actions under this statute, although the em-
ployee’s proofs support with reason a verdict in
his favor, unless the judge can say that the jury
may exclude the idea that his injury was due to
causes with which the defendant was not con-
nected, or, stated another way, unless his proofs
are so strong that the jury, on grounds of probabil-
ity, may exclude a conclusion favorable to the
defendant. That is not the governing principle
defining the proof which requires a submission to
the jury in these cases. The Missouri court’s opin-
ion implies its view that this is the governing
standard by saying that the proofs must show that
No. 08-3557 19
“the injury would not have occurred but for the
negligence” of his employer, and that “[t]he test of
whether there is causal connection is that, absent
the negligent act the injury would not have oc-
curred.” That is language of proximate causation
which makes a jury question dependent upon whether
the jury may find that the defendant’s negligence
was the sole, efficient, producing cause of injury.
Under this statute the test of a jury case is simply
whether the proofs justify with reason the conclusion
that employer negligence played any part, even the
slightest, in producing the injury or death for which
damages are sought. It does not matter that, from the
evidence, the jury may also with reason, on
grounds of probability, attribute the result to other
causes, including the employee’s contributory
negligence. . . . The statute expressly imposes
liability upon the employer to pay damages for
injury or death due “in whole or in part” to its
negligence. (Emphasis added.)
Id. at 505-07 (emphasis added; footnotes omitted).
3. Recent FELA cases
Rogers stopped short of explicitly overruling earlier
FELA cases that had spoken in terms of common-law
proximate cause. Since Rogers, the Supreme Court has not
explained in detail how broadly or narrowly Rogers
should be read by the lower federal courts. Indeed, the
Court has discussed Rogers infrequently and, in most cases,
20 No. 08-3557
without elaboration. In Sinkler v. Missouri Pacific Railroad
Co., 356 U.S. 326 (1958), for instance, the Court cited Rogers
for the proposition that the FELA is “an avowed departure
from the rules of the common law.” Id. at 329. However,
other cases have attributed to Rogers the idea that the
FELA incorporates a causation standard less stringent
than proximate cause. In Crane v. Cedar Rapids & Iowa City
Railway Co., 395 U.S. 164 (1969), in the course of deter-
mining whether the defense of contributory negligence
was available to a railroad sued by a nonemployee, the
Court observed that a FELA plaintiff “is not required to
prove common-law proximate causation but only that
his injury resulted ‘in whole or in part’ from the railroad’s
violation of the Act.” Id. at 166 (quoting 45 U.S.C. § 51
and citing Rogers).
More recently, in Consolidated Rail Corp. v. Gottshall, 512
U.S. 532 (1994), the Court referenced Rogers in addressing
the question whether recovery for negligent infliction of
emotional distress is available under the FELA. In con-
ducting its analysis of the statutory language and pur-
pose, the Court observed that:
In order to further FELA’s humanitarian purposes,
Congress did away with several common-law tort
defenses that had effectively barred recovery by
injured workers. Specifically, the statute abolished
the fellow servant rule, rejected the doctrine of contribu-
tory negligence in favor of that of comparative negli-
gence, and prohibited employers from exempting them-
selves from FELA through contract; a 1939 amendment
abolished the assumption of risk defense. See 45 U.S.C.
§§ 51, 53-55.
No. 08-3557 21
We have liberally construed FELA to further
Congress’ remedial goal. For example, we held in
Rogers v. Missouri Pacific R. Co., 352 U.S. 500 (1957),
that a relaxed standard of causation applies under
FELA. We stated that “[u]nder this statute the test
of a jury case is simply whether the proofs justify
with reason the conclusion that employer negli-
gence played any part, even the slightest, in pro-
ducing the injury or death for which damages
are sought.” Id., at 506. In Kernan [v. American
Dredging Co., 355 U.S. 426 (1958)], we extended the
reach of the principle of negligence per se to cover
injuries suffered by employees as a result of their
employers’ statutory violations, even if the
injuries sustained were not of a type that the
relevant statute sought to prevent. See id., 355
U.S., at 432-436. And in Urie [v. Thompson, 337 U.S.
163 (1949)], we held that occupational diseases
such as silicosis constitute compensable physical
injuries under FELA, thereby rejecting the argu-
ment that the statute covered only injuries and
deaths caused by accidents. See id., 337 U.S., at 181.
Gottshall, 512 U.S. at 542-43. Although Gottshall character-
izes Rogers as holding that a relaxed causation standard
applies, Gottshall also reiterates the importance of common-
law principles in interpreting the FELA. The Court ex-
plained that:
“[T]he Federal Employers’ Liability Act is founded
on common-law concepts of negligence and injury,
subject to such qualifications as Congress has
22 No. 08-3557
imported into those terms,” [Urie v. Thompson, 337
U.S. 163, 182 (1949)]. Those qualifications, dis-
cussed above, are the modification or abrogation of
several common-law defenses to liability, including
contributory negligence and assumption of risk. See
45 U.S.C. §§ 51, 53-55. Only to the extent of these
explicit statutory alterations is FELA “an avowed
departure from the rules of the common law.”
Sinkler v. Missouri Pacific R. Co., 356 U.S. 326 (1958).
Thus, although common-law principles are not necessar-
ily dispositive of questions arising under FELA, unless
they are expressly rejected in the text of the statute, they
are entitled to great weight in our analysis. Cf.
[Atchison, Topeka & Santa Fe Ry. Co. v.] Buell,
480 U.S. [557, 568 (1987)]. Because FELA is silent
on the issue of negligent infliction of emotional
distress, common-law principles must play a
significant role in our decision.
Gottshall, 512 U.S. at 543-44 (emphasis added). Thus, in
addition to reaffirming explicitly the common law as an
important source in interpreting the Act, the Court stopped
short of listing proximate causation among those common-
law principles that the FELA had abrogated.
Similarly, our own court never has held, in the wake of
Rogers, that the concept of proximate cause has been
abandoned in its entirety. Nevertheless, we have employed
language that strongly suggests that traditional formula-
No. 08-3557 23
tions of proximate cause have no role in FELA cases.4 For
instance, in Lisek v. Norfolk & Western Railway Co., 30 F.3d
823 (7th Cir. 1994), we reviewed whether the district
court had erred in entering summary judgment for the
employer in a FELA case. We stated:
The FELA is meant to provide a broad remedial
framework for railroad workers and, in light of
that purpose, is to be liberally construed in their
favor. Atchison, Topeka & Santa Fe Ry. v. Buell, 480
U.S. 557, 562 (1987); Kulavic v. Chicago & Illinois
Midland Ry. Co., 1 F.3d 507, 512 (7th Cir. 1993).
Plaintiffs’ burden in a FELA action is therefore signifi-
cantly lighter than it would be in an ordinary negli-
gence case. In a FELA action, the railroad is liable if
“the proofs justify with reason the conclusion that
employer negligence played any part, even the slightest,
in producing the injury. . . .” Harbin v. Burlington N.
R.R. Co., 921 F.2d 129, 131 (7th Cir. 1990) (quoting
Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506
(1957)) . . . .
Id. at 831-32 (parallel citations omitted; emphasis added).
We repeated this language under similar circumstances
in Holbrook v. Norfolk Southern Railway Co., 414 F.3d 739
(7th Cir. 2005):
Because it is meant to offer broad remedial relief
to railroad workers, a plaintiff’s burden when
4
Indeed, as discussed supra at 15-16, our conception of proxi-
mate cause in FELA cases began to change even prior to
Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957).
24 No. 08-3557
suing under the FELA is significantly lighter than
in an ordinary negligence case. Lisek v. Norfolk &
Western Ry. Co., 30 F.3d 823, 832 (7th Cir. 1994);
Harbin v. Burlington Northern R.R., 921 F.2d 129, 131
(7th Cir. 1990). Indeed, a railroad will be held liable
where “employer negligence played any part, even
the slightest, in producing the injury.” Rogers v.
Missouri Pac. R.R. Co., 352 U.S. 500, 506 (1957).
Holbrook, 414 F.3d at 741-42 (parallel citations omitted).
The idea that Rogers relaxed the proximate cause require-
ment has been echoed by every other court of appeals.
Richards v. Consol. Rail Corp., 330 F.3d 428, 433 (6th Cir.
2003) (observing that “the Supreme Court announced a
relaxed test for establishing causation in FELA cases in its
landmark decision, Rogers v. Missouri Pacific Railroad
Co.”); Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d
432, 436 (4th Cir. 1999) (quoting Rogers and noting the
“relaxed” standard of causation under FELA); Nordgren
v. Burlington N. R.R. Co., 101 F.3d 1246, 1249 (8th Cir. 1996)
(citing Rogers for the proposition that “the Court has
held that relaxed standards apply under FELA . . . for
causation”); Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1363-
64 (9th Cir. 1995) (quoting Rogers and describing a “re-
laxed” standard of negligence and causation in FELA
cases); Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir.
1991) (distinguishing the case before it from a common-law
tort case on the ground that “FELA . . . has a more lenient
standard for determining negligence and causation”);
Moody v. Main Cent. R.R. Co., 823 F.2d 693, 695 (1st Cir.
1987) (“We recognize the considerably relaxed standard
No. 08-3557 25
of proof in FELA cases.”);5 Brooks v. Washington
5
In its reply, CSX acknowledges that five circuits “have either
held or stated that a FELA plaintiff need not prove proximate
cause,” but also states that, “[a]t the same time, at least one
circuit . . . ha[s] reached the opposite conclusion.” Reply Br. 14-
15. For this latter proposition, CSX cites Boston & Maine Railroad
v. Talbert, 360 F.2d 286, 288 (1st Cir. 1966), and specifically
quotes the following language from that case: “[T]he plaintiff
has the burden of proving negligence and proximate cause.”
Placed in context, however, the First Circuit’s statement is
completely consistent with its later pronouncement that there
is a relaxed standard of proof in FELA cases. In Talbert, the
First Circuit stated:
Under the statute upon which liability is predicated
here plaintiff must show that the injury and death of
this employee resulted in whole or in part from the
negligence of the defendant railroad. In New York, New
Haven and Hartford Railroad Co. v. Dox, 249 F.2d 572 (1st
Cir. 1957), we held that the plaintiff has the burden of
proving negligence and proximate cause. However, in
reviewing the jury’s verdict on the question of liability we
must be guided by the principles laid down in Rogers v.
Missouri Pacific R. Co., 352 U.S. 500, 506 (1957), a Federal
Employer’s Liability Act case, in which the Supreme
Court said:
“Under this statute the test of a jury case is simply
whether the proofs justify with reason the conclu-
sion that employer negligence played any part,
even the slightest, in producing the injury or death
for which damages are sought. It does not matter
that, from the evidence, the jury may also with
(continued...)
26 No. 08-3557
Terminal Co., 593 F.2d 1285, 1288 (D.C. Cir. 1979) (noting
the “liberality” of the FELA causation standard).6
Some courts of appeals have been more explicit
and have stated that the FELA modified or abandoned
common-law proximate cause. See Nicholson v. Erie R.R. Co.,
253 F.2d 939, 940 (2d Cir. 1958) (quoting Rogers and
stating that “[i]t is true that, to impose liability on the
defendant, the negligence need not be the proximate
cause of the injury” because the FELA “has its own rule
of causation”); Nivens v. St. Louis Sw. Ry. Co., 425 F.2d 114,
118 (5th Cir. 1970) (quoting Rogers and holding that “the
5
(...continued)
reason, on grounds of probability, attribute the
result to other causes, including the employee’s
contributory negligence. Judicial appraisal of the
proofs to determine whether a jury question is
presented is narrowly limited to the single inquiry
whether, with reason, the conclusion may be drawn
that negligence of the employer played any part at
all in the injury or death.”
Talbert, 360 F.2d at 288 (footnote and parallel citations omitted;
emphasis added).
6
Also in its reply, CSX argues that many of these cases simply
recite “the general proposition that FELA employs a ‘relaxed
standard’ of causation, without discussing (or even mentioning)
proximate cause.” Reply Br. 19. We do not believe that the fact
that some of these cases fail directly to juxtapose common-law
proximate causation with FELA causation reduces their
worth. The use of the term “relaxed standard” necessarily
suggests the existence of a more stringent standard from
which the courts departed.
No. 08-3557 27
common-law proximate cause standard is modified, and
the employee has a less demanding burden of proving
causal relationship”); Summers v. Missouri Pac. R.R. Sys.,
132 F.2d 599, 606 (10th Cir. 1997) (“During the first half
of this century, it was customary for courts to analyze
liability under the FELA in terms of proximate causation.
However, the Supreme Court definitively abandoned
this approach in [Rogers].” (internal citations omitted)).
4. Sorrell
As we noted earlier, CSX maintains that, regardless
of courts’ interpretation of Rogers up to this point, the
Supreme Court’s decision in Norfolk Southern Railway Co.
v. Sorrell, 549 U.S. 158 (2007), and specifically Justice
Souter’s concurrence in that decision, makes it clear that
the holding of Rogers is much narrower than courts
have perceived. We turn, therefore, to an examination of
that case in our search for guidance.
Sorrell, an employee of Norfolk Southern, was driving
a dump truck loaded with asphalt when, somehow,
Sorrell’s truck veered off the road and tipped over. Sorrell,
who sustained injuries as a result of the accident, main-
tained that another Norfolk truck had approached and
forced him off the road; the other Norfolk driver, how-
ever, maintained that Sorrell simply had driven his truck
off the road. Sorrell filed an action in Missouri state
court under the FELA. In that action, Sorrell alleged that
Norfolk had failed to provide him with a reasonably safe
place to work; Norfolk countered that Sorrell’s own
negligence caused the accident.
28 No. 08-3557
At trial, Sorrell proposed an instruction that required
Norfolk Southern to establish that his negligence “ ‘di-
rectly contributed to cause’ the injury, while allowing
a finding of railroad negligence if the railroad was negli-
gent and its negligence contributed ‘in whole or in part’
to the injury.” Sorrell, 549 U.S. at 161 (quoting Mo. Ap-
proved Jury Instr., Civ., No. 32.07(B) & No. 24.01, respec-
tively). Norfolk Southern objected to the instruction “on
the ground that it provided a ‘different’ and ‘much
more exacting’ standard for causation than that ap-
plicable with respect to the railroad’s negligence under
the Missouri instructions.’ ” Id. The trial court overruled
the objection, a jury returned a verdict in Sorrell’s
favor, and Norfolk Southern was unsuccessful in ob-
taining post-trial relief from the state courts.
Norfolk Southern then filed a petition for certiorari
that raised the following question: “[W]hether the
Missouri courts erred in determining that the causation
standard for employee contributory negligence under
[FELA] differs from the causation standard for railroad
negligence.” Id. at 162 (internal citations and quotation
marks omitted; emphasis and alteration in original).
However, in its briefing before the Court, Norfolk
attempted to expand the question presented to
encompass what the standard of causation under
FELA should be, not simply whether the standard
should be the same for railroad negligence and
employee contributory negligence. In particular,
Norfolk contends that the proximate cause stan-
dard reflected in the Missouri instruction for
No. 08-3557 29
employee contributory negligence should apply
to the railroad’s negligence as well.
Id. at 163. Sorrell raised both substantive and procedural
objections to Norfolk Southern’s efforts. Sorrell first
argued that the Court had settled the issue of the proper
standard of causation in Rogers. Procedurally, Sorrell
maintained, the Court had granted certiorari only to
determine whether the FELA incorporated different
standards of negligence for employee and railroad li-
ability. As well, continued Sorrell, Norfolk’s position
was contrary to that which it had taken in the Missouri
courts, where it had argued that the more lenient
standard articulated in Rogers should be applied both to
railroads and to employees.
The Court declined the invitation to enlarge the ques-
tion before it; it explained:
We agree with Sorrell that we should stick to the
question on which certiorari was sought and
granted. We are typically reluctant to permit
parties to smuggle additional questions into a case
before us after the grant of certiorari. Although
Norfolk is doubtless correct that we could consider
the question of what standard applies as anterior
to the question whether the standards may differ,
the issue of the substantive content of the causa-
tion standard is significant enough that we prefer
not to address it when it has not been fully pre-
sented. We also agree with Sorrell that it would
be unfair at this point to allow Norfolk to switch
gears and seek a ruling from us that the standard
should be proximate cause across the board.
30 No. 08-3557
What Norfolk did argue throughout is that the
instructions, when given together, impermissibly
created different standards of causation. It chose
to present in its petition for certiorari the more
limited question whether the courts below erred
in applying standards that differ. That is the
question on which we granted certiorari and the
one we decide today.
Id. at 164-65 (citations omitted). The Court then turned
to the substantive question properly before it.
In resolving the question whether different standards of
negligence apply to the employee and the railroad under
the FELA, the Court observed that, “[a]bsent express
language to the contrary, the elements of a FELA claim
are determined by reference to the common law.” Id. at
165-66. Thus, it was “strong evidence” against Missouri’s
disparate standards that the common law employed the
same standard for negligence and contributory negligence.
Id. at 168. Sorrell argued, however, that the FELA did
contain an explicit statutory alteration from the common-
law standard for negligence; specifically, the Act provides
that the railroad is liable if its negligence contributed in
whole or in part to the employee’s injuries. The Court
disagreed that this language suggested that it should
depart from the common-law rule of applying the same
standard of negligence for both the employee and the
railroad:
The inclusion of this language in one section and
not the other does not alone justify a departure
from the common-law practice of applying a single
No. 08-3557 31
standard of causation. It would have made little
sense to include the “in whole or in part”
language in Section 3, because if the employee’s
contributory negligence contributed “in whole” to
his injury, there would be no recovery against the
railroad in the first place. The language made
sense in Section 1, however, to make clear that
there could be recovery against the railroad even
if it were only partially negligent.
Even if the language in Section 1 is understood to
address the standard of causation, and not simply
to reflect the fact that contributory negligence is
no longer a complete bar to recovery, there is no
reason to read the statute as a whole to encom-
pass different causation standards. Section 3
simply does not address causation. On the question
whether a different standard of causation applies
as between the two parties, the statutory text is
silent.
Id. at 170-71. The Court thus concluded that the “FELA
does not abrogate the common-law approach, and that the
same standard of causation applies to railroad negligence
under Section 1 as to plaintiff contributory negligence
under Section 3.” Id. at 171.
Justice Souter, joined by Justices Scalia and Alito, filed
a separate concurring opinion. Justice Souter believed that
the briefs adequately had addressed the issue of the
proper standard of causation under the FELA and, there-
fore, thought it “fair to say a word about the holding in
Rogers.” Id. at 173 (Souter, J., concurring). The Justice con-
32 No. 08-3557
tinued that, “[d]espite some courts’ views to the contrary,
Rogers did not address, much less alter, existing law gov-
erning the degree of causation necessary for redressing
negligence as the cause of negligently inflicted harm; the
case merely instructed courts how to proceed when there
are multiple cognizable causes of an injury.” Id. (footnote
omitted). Justice Souter explained that, although Congress
abrogated several common-law rules in the FELA, the
“FELA said nothing, however, about the familiar proxi-
mate cause standard for claims either of a defendant-
employer’s negligence or a plaintiff-employee’s contribu-
tory negligence.” Id. at 174. Turning then, specifically, to
Rogers, Justice Souter wrote:
Rogers left this law where it was. We granted
certiorari in Rogers to establish the test for sub-
mitting a case to a jury when the evidence would
permit a finding that an injury had multiple
causes. 352 U.S., at 501, 506. We rejected Missouri’s
“language of proximate causation which ma[de] a
jury question [about a defendant’s liability] de-
pendent upon whether the jury may find that the
defendant’s negligence was the sole, efficient,
producing cause of injury.” Id., at 506. The notion
that proximate cause must be exclusive proximate
cause undermined Congress’s chosen scheme of
comparative negligence by effectively reviving the
old rule of contributory negligence as barring any
relief, and we held that a FELA plaintiff may
recover even when the defendant’s action was a
partial cause of injury but not the sole one. Recov-
ery under the statute is possible, we said, even
when an employer’s contribution to injury was
No. 08-3557 33
slight in relation to all other legally cognizable
causes.
Id. at 174-75. Justice Souter did acknowledge that “clarity
was not well served by the statement in Rogers that a case
must go to a jury where ‘the proofs justify with reason
the conclusion that employer negligence played any part,
even the slightest, in producing the injury of death
for which damages are sought.’ ” Id. at 175 (quoting
Rogers, 352 U.S. at 506). Nevertheless, he believed that
the passage “spoke to apportioning liability among the
parties, each of whom was understood to have had some
hand in causing damage directly enough to be what the
law traditionally called a proximate cause.” Id.
Justice Ginsburg, concurring in the judgment, also wrote
separately. Relying on many of the authorities that
Mr. McBride has relied upon in the present case, Justice
Ginsburg stated that the question of the proper standard
of causation under the FELA “is long settled, we have no
cause to reexamine it.” Id. at 177 (Ginsburg, J., concurring
in the judgment). She explained her rationale accordingly:
In Consolidated Rail Corporation v. Gottshall, 512 U.S.
532, 543 (1994), we acknowledged that “a relaxed
standard of causation applies under FELA.” De-
cades earlier, in Crane v. Cedar Rapids & Iowa City R.
Co., 395 U.S. 164 (1969), we said that a FELA plain-
tiff need prove “only that his injury resulted in
whole or in part from the railroad’s violation.” Id.,
at 166 (internal quotation marks omitted). Both
decisions referred to the Court’s oft-cited opinion
in Rogers v. Missouri Pacific R. Co., 352 U.S. 500
(1957), which declared: “Under [FELA] the test of
34 No. 08-3557
a jury case is simply whether the proofs justify
with reason the conclusion that employer negli-
gence played any part, even the slightest, in pro-
ducing the injury or death for which damages are
sought.” Id., at 506 (emphasis added). Rogers, in
turn, drew upon Coray v. Southern Pacific Co., 335
U.S. 520, 524 (1949), in which the Court observed:
“Congress . . . imposed extraordinary safety obliga-
tions upon railroads and has commanded that if a
breach of these obligations contributes in part to an
employee’s death, the railroad must pay damages.”
These decisions answer the question Norfolk
sought to “smuggle . . . into” this case,. . . i.e., what
is the proper standard of causation for railroad
negligence under FELA. Today’s opinion leaves
in place precedent solidly establishing that the
causation standard in FELA actions is more “re-
laxed” than in tort litigation generally.
A few further points bear emphasis. First, it is
sometimes said that Rogers eliminated proximate
cause in FELA actions. . . . It would be more ac-
curate, as I see it, to recognize that Rogers describes
the test for proximate causation applicable in FELA
suits. That test is whether “employer negligence
played any part, even the slightest, in producing
the injury or death for which damages are sought.”
352 U.S., at 506.
....
FELA was prompted by concerns about the
welfare of railroad workers. . . . “We have liberally
No. 08-3557 35
construed FELA to further Congress’ remedial
goal.” Gottshall, 512 U.S., at 543. With the motiva-
tion for FELA center stage in Rogers, we held that
a FELA plaintiff can get to a jury if he can
show that his employer’s negligence was even
the slightest cause of his injury.
Id. at 177-78 (citations omitted). Thus, at least in Justice
Ginsburg’s view, the Court left intact a relaxed standard
for causation under the FELA on the authority of Rogers
as well as the Court’s subsequent FELA case law.
B. Application of FELA cases
As noted above, CSX urges us to follow the rationale
set forth in Justice Souter’s concurring opinion. Justice
Souter, CSX argues, persuasively demonstrates how the
courts of appeals have gone awry in interpreting Rogers.
CSX urges us to accept Justice Souter’s critique and to
realign our own case law with that of the Supreme Court.
In righting our course, CSX notes, we would not be
alone. Most recently, the Supreme Court of Utah,
prompted by the Court’s decision in Sorrell, has read
Rogers in a more guarded way and held that common-law
proximate cause is the correct standard of causation
under the FELA. See Raab v. Utah Ry. Co., 221 P.3d 219
(Utah 2009).7
7
Although CSX lists six state courts of last resort which, it
claims, adhere to the requirement of proximate cause in FELA
cases, upon closer examination, it is clear that several states to
(continued...)
36 No. 08-3557
Justice Souter’s critique of the existing case law is not
without considerable force. Section 1 of the FELA could
be read only as abrogating the common-law rule of con-
tributory negligence and not as articulating a general
standard for negligence. Even after Rogers, the Supreme
Court has instructed that, for purposes of the FELA, unless
common-law principles “are expressly rejected in the text
7
(...continued)
which CSX refers do not require FELA plaintiffs to establish
“proximate cause,” that is a “direct relation between the injury
asserted and the injurious conduct alleged.” Holmes v. Sec.
Investor Prot. Corp., 503 U.S. 258, 268 (1992); see supra note 3.
For instance, in Snipes v. Chicago, Central & Pacific Railroad Co.,
484 N.W.2d 162, 164-65 (Iowa 1992), the court states that
“[r]ecovery under the FELA requires an injured employee to
prove that the defendant employer was negligent and that the
negligence proximately caused, in whole or in part, the acci-
dent”; however, it then goes on to quote the standard from
Rogers and observes that this is a “low threshold for recovery.”
Additionally, in three states named by CSX, Minnesota, Ohio
and Nebraska, later appellate court cases, relying on Rogers, hold
that FELA claims are subject to a less stringent causation
requirement than common-law claims. See, e.g., Hager v. Norfolk
& W. Ry. Co., No. 87553, 2006 WL 3634373, at *5 (Ohio App. Dec.
14, 2006); Crafton v. Union Pac. R. Co., 585 N.W.2d 115, 123 (Neb.
App. 1998) (“The quantum of evidence required to establish
liability in a FELA action is lower than that required in an
ordinary negligence action. The common-law standard of
proximate cause is not applicable to FELA.” (citations omitted));
Narusiewicz v. Burlington N. R. Co., 391 N.W.2d 895, 898-99
(Minn. App. 1986). At most, therefore, Utah, Montana and West
Virginia still apply traditional formulations of proximate
cause in FELA cases.
No. 08-3557 37
of the statute, they are entitled to great weight.” Gottshall,
512 U.S. at 544; see also Sorrell, 549 U.S. at 165-66 (“Absent
express language to the contrary, the elements of a FELA
claim are determined by reference to the common law.”).
Proximate causation is not explicitly mentioned in the
statute, and the Court never has identified proximate
causation as among those principles of common law that
have been abrogated by the FELA. Gottshall, 512 U.S. at
543-44. Furthermore, Justice Souter’s reading of Rogers is a
plausible one. As Justice Souter correctly explains in
his concurrence, Rogers itself was a case that involved
multiple causes, and much of Rogers speaks directly to
the issue of when a case with multiple causes must be
submitted to a jury. See Rogers, 352 U.S. at 504-05; Sorrell,
549 U.S. at 174-75 (Souter, J., concurring) (“We granted
certiorari in Rogers to establish the test for submitting a
case to a jury when the evidence would permit a finding
that an injury had multiple causes.”).
Nevertheless, there are several important counter-
vailing considerations that preclude us from embracing
Justice Souter’s view at this juncture. First, we must
recognize that, in Sorrell, the Supreme Court did not
address, much less decide, the issue that CSX would have
us decide today in this case. Justice Souter’s concur-
rence garnered the votes of only two other members of
the Court. The majority of the Court believed that causa-
tion in general was not properly raised. Although there
is some indication that, had it reached the substantive
issue, at least some members of the majority may have
been sympathetic to Justice Souter’s view, see Sorrell, 549
U.S. 170-71 (suggesting that Section 1 could be under-
38 No. 08-3557
stood as “simply . . . reflect[ing] the fact that contributory
negligence is no longer a complete bar to recovery”), we
have been admonished not to anticipate future actions of
the Supreme Court. State Oil Co. v. Khan, 522 U.S. 3, 20
(1997) (“The Court of Appeals was correct in applying
that principle [of stare decisis] despite disagreement with
Albrecht, for it is this Court’s prerogative alone to
overrule one of its precedents.”); Nanda v. Bd. of Trs. of the
Univ. of Ill., 312 F.3d 852, 854 (7th Cir. 2002) (Ripple, J., in
chambers) (“In deciding a case, a circuit judge must not
anticipate future changes in jurisprudential course by
the Supreme Court of the United States; it is the task of
a circuit judge to apply established doctrine.”).
A related consideration is that we must treat with great
respect the prior pronouncements of the Supreme Court,
even if those pronouncements are technically dicta. See
Nichol v. Pullman Standard, Inc., 889 F.2d 115, 120 n.8 (7th
Cir. 1989). As noted above, Justice Souter “stipulate[d]
that clarity was not well served by the statement in
Rogers that a case must go to a jury where ‘the proofs
justify with reason the conclusion that employer
negligence played any part, even the slightest, in pro-
ducing the injury or death for which damages are
sought.’ ” Sorrell, 549 U.S. at 175. Justice Souter believed
that this language “spoke to apportioning liability
among parties,” each of whom had proximately caused
the damage. Id. With great respect to Justice Souter’s
explanation, we are not free to ignore the subsequent
statements by the Supreme Court that suggest a much
broader reading of this language. Indeed, in Gottshall, the
No. 08-3557 39
Court stated: “We have liberally construed FELA to
further Congress’ remedial goal. For example, we held in
Rogers v. Missouri Pacific R. Co., 352 U.S. 500 (1957), that
a relaxed standard of causation applies under FELA.” 512
U.S. at 543. We also cannot discount pre-Rogers case law
that is consistent with a broader reading of the quoted
language in Rogers. See Coray, 335 U.S. at 524 (“The lan-
guage selected by Congress to fix liability in cases of
this kind is simple and direct. Consideration of its
meaning by the introduction of dialectical subtleties can
serve no useful interpretative purpose. The statute
declares that railroads shall be responsible for their em-
ployees’ deaths ‘resulting in whole or in part’ from defec-
tive appliances such as were here maintained.”); see also
Crane, 395 U.S. at 166 (stating that a FELA plaintiff “is not
required to prove common-law proximate causation but
only that his injury resulted ‘in whole or in part’ from
the railroad’s violation of the Act”).
Additionally, before creating a division of authority
among the circuits, we take respectful note that our
current interpretation of Rogers is in accord with the
interpretation adopted by all of our sister circuits. All have
taken the view, based on Rogers, that there is a “relaxed”
standard of probable cause under the FELA. 8 Adopting
Justice Souter’s interpretation of Rogers, therefore, would
not only run contrary to our own case law, but would
cause a conflict with every other court of appeals, a step
8
As we have discussed previously, we disagree with CSX that
the First Circuit has taken the contrary view. See supra note 5.
40 No. 08-3557
that we do not take lightly. See Russ v. Watts, 414 F.3d 783,
788 (7th Cir. 2005) (invoking “the interest in avoiding
unnecessary intercircuit conflicts” as a “compelling”
reason for reevaluating our own precedent (internal
quotation marks and citations omitted)); United States v.
Gwaltney, 790 F.2d 1378, 1388 n.4 (9th Cir. 1986) (“Unneces-
sary conflicts among the circuits are to be avoided.”);
United States v. Scaife, 749 F.2d 338, 344 (6th Cir. 1984)
(agreeing that “intercircuit conflicts are to be avoided if
possible”).
Finally, because we deal, at bottom, with a statute
enacted by Congress, we must give respectful attention to
the Legislative Branch’s reaction to the Supreme Court’s
treatment of the FELA. Congressional inaction, in the
wake of Rogers and circuit law broadly interpreting Rogers,
counsels against adopting a common-law formulation
of probable cause in FELA cases. As we noted in a prior
FELA case:
We will not assume that Congress is unaware of
the judicial gloss that the Act has received. If the
Act as it has been interpreted and applied does not
correctly reflect what was intended by the legisla-
tive branch then the change must be made there.
The duty of this court is to follow what is now
well-established authority.
Heater v. Chesapeake & Ohio Ry. Co., 497 F.2d 1243, 1246 (7th
Cir. 1974). Congress, faced with the Supreme Court’s
articulation of the governing standards in FELA cases
and the consistent interpretation of that articulation by
No. 08-3557 41
courts of appeals, has not seen fit to amend the FELA to
clarify or correct the standard of causation that has
been applied almost universally.
In light of these considerations, we decline to hold that,
in light of the Supreme Court’s opinion in Sorrell, common-
law proximate causation is required to establish liability
under the FELA. Having reached this conclusion, we
cannot say that the district court committed instructional
error in refusing CSX’s proffered instruction. Similarly,
we find no error in the causation instruction given to the
jury. The instruction stated: “Defendant ‘caused or con-
tributed to’ plaintiff’s injury if defendant’s negligence
played a part—no matter how small—in bringing about
the injury.” R.43 at 13. This language simply paraphrases
the Supreme Court’s own words in Rogers and, therefore,
correctly states the law as the Supreme Court has articu-
lated it up to now. See Rogers, 352 U.S. at 506 (requiring that
a case be submitted to the jury when “the proofs justify
with reason the conclusion that employer negligence
played any part, even the slightest, in producing the injury
or death for which damages are sought”).9
Conclusion
Because the jury instructions “correctly and completely
informed the jury of the applicable law,” Huff v. Sheahan,
9
Because we conclude there was no instructional error, we
do not reach the difficult question whether any error was
prejudicial.
42 No. 08-3557
493 F.3d 893, 899 (7th Cir. 2007), the judgment of the
district court is affirmed.
A FFIRMED
3-16-10