How Will the Roberts Court Deal with Cases Affecting Corporate America?
A Recent Decision Regarding the Federal Employer Liability Statute Provides Insight

On January 10, in its decision in Norfolk Southern Railway Co. v. Sorrell, the U.S. Supreme Court provided observers with some insight into the Roberts' Court's attitude toward cases affecting corporate America. Though Norfolk is not the season's tort blockbuster - that honor goes to the case involving Big Tobacco and punitive damages, which I discussed in an earlier series of columns -- it is still significant.

Indeed, both what Chief Justice Roberts said, and what he did not say, in the opinion he authored, deserve to be carefully noted.

The Statute at Issue: The Federal Employer's Liability Act

The Norfolk case involves the interpretation of the Federal Employer's Liability Act (FELA), a Progressive-era statute that has been the source of significant controversy and litigation since it was first enacted by Congress in 1908.

The law was designed to cure many problems that railway workers faced in the early part of the Twentieth Century, if they wanted to sue for injuries sustained on the job. The chief problems had to do with two features of state courts: their extremely conservative judges and archaic pro-employer common law tort rules. Even workers seriously maimed on the job, and the families of those killed on the job, could not successfully seek compensation.

In FELA, Congress' explicit intent was to solve both of these obstacles. It allowed employees or their families to sue in federal court under certain conditions. It also ensured that their cases - whether brought in federal or state court -- would be governed by what were, at the time, state-of the-art tort principles such as comparative fault.

FELA's Political Significance

Politically, FELA represented a strong rebuke to national corporate interests and local judges, who were viewed as anti-worker. Needless to say, FELA was viewed by "big labor" (when there really was such a thing) as an achievement for railroad workers as important as the right to organize.

For the first fifty years of FELA's history, the struggle over its application was more about federalism than about the content of the statute. Indeed, at the end of his 1957 opinion for a U.S. Supreme Court majority in Rogers v. Missouri Pacific R. Co., Justice Brennan noted, with clear annoyance, that the Supreme Court had felt compelled to grant review of an inordinate number of cases in the 1940's and 1950's simply to reverse summary judgments - for, Brennan explained, "special and important reasons for the grant of certiorari in these cases are certainly present when lower federal and state courts persistently deprive litigants of their right to a jury determination."

Eventually the lower courts stopped throwing FELA cases out and started trying them, but the political battle still appeared to affect the rules they applied. Many courts inferred from the Supreme Court's spirited enforcement of FELA that Congress had intended it to be more than a mere federal negligence law. Thus, courts lowered the burdens of proof plaintiffs had to satisfy, especially when it came to causation.

By 1993, in the case of Gottshall v. CONRAIL, a panel of the U.S. Court of Appeals for the Third Circuit took stock of the situation as follows: "[W]hile the long-standing fundamental elements of bringing a FELA action are traditional common law elements, in many ways FELA is the antithesis of the common law. . . . [D]octrinal common law distinctions are to be discarded when they bar recovery on meritorious FELA claims."

In other words, the Third Circuit (and many other observers) believed the FELA bottom-line to be simply that when workers were injured on the job, they ought to win their cases -- period, full stop.

This Term's FELA Case, and the Relevant Missouri Jury Instructions

That brings us to this Supreme Court term's FELA case, Sorrell. Plaintiff Timothy Sorrell, an employee of Norfolk Southern Railway Company, sued in state court under FELA to recover for injuries he suffered while driving a truck to repair railroad crossings. Sorrell alleges that another truck, operated by a fellow employee, forced him off a road into a ditch; Norfolk, however, says he negligently drove the truck into the ditch.

FELA, as was noted above, allows the jury to evaluate comparative fault. However, Missouri - where Sorrell's case was litigated -- is unique among the states in that it has interpreted FELA to require the jury to assess the plaintiff's fault and the defendant's fault differently. In both cases, the jury asks whether the actors were careless. But as the Supreme Court noted - quoting Missouri's Approved Jury Instructions - the standard differs when it comes to determining whether an actor's carelessness was the proximate cause of the accident. (Roughly, "proximate" cause means the kind of cause closely connected enough to the injury to allow for recovery under the law.) In the proximate cause determination, the plaintiff is held to be a contributing factor only if the jury holds that his fault "directly contributed to cause" the injury. In contrast, the defendant is held to be a contributing factor even if his fault was an indirect cause of the accident.

Before the lower courts, Norfolk simply argued the same standard should apply to plaintiff and defendant. But before the U.S. Supreme Court, Norfolk made a very different argument - as I will explain.

What Justice Roberts Could Have Said, But Did Not - and What He Did Say

The Missouri court, like many others, had assumed that Justice Brennan in 1957, in the Court's Rogers v. Missouri Pacific R. Co. decision, had changed the meaning of proximate cause in FELA cases. By 2006, many courts had taken the view that the plaintiff's burden in a FELA case in proving that the defendant railroad was a proximate cause of his injury was much less than that under the common law. Indeed, some courts had gone as far as to say that FELA eliminated the plaintiff's burden of proving proximate cause altogether. (A good example is the U.S. Court of Appeals for the Tenth Circuit's 1997 decision in Summers v. Missouri Pacific R. Co.)

Norfolk, however, argued that this view was wrong - as, it suggested, was the entire pro-plaintiff transformation of FELA into a special form of quasi-strict liability for railroads. Thus, this offered a prime opportunity for Chief Justice Roberts, a former corporate lawyer, to remove a part of the case law that had been a thorn in the side of an important American industry.

Yet Roberts declined the invitation. Since Norfolk had only raised the "symmetry" question in the lower courts, he opted to decide only that question. He concluded easily that the proximate cause rules for both parties should be symmetrical - not tilted in the plaintiff's favor, and against the defendant. Thus, he rendered a pro-defendant ruling, but did not make any broader pro-defendant statement.

Other members of his court were plainly dissatisfied with Roberts' minimalism. Although all eight of the other justices concurred with Roberts, four found it necessary to comment on the larger question that Roberts had avoided.

A trio of these -- Justice Souter, joined by Justices Scalia and Alito -- was ready to take up Norfolk's invitation and explicitly take on those lower federal courts who have "smuggled proximate cause out of the concept of defendant liability under FELA."

The fourth, Justice Ginsburg, took the opposite position: While insisting that FELA had not eliminated the proximate cause requirement, she held that lower federal courts had, over the years, determined that Congress had intended to "relax" the plaintiff's burden of proof, by holding that a defendant is liable if its negligence was the "slightest" cause of the injury.

The Lessons of the Sorrell Case

What lessons can we take away from the Sorrell case? First, Roberts's minimalism seems, for the moment, to outweigh his pro-business conservatism. As he promised in his confirmation hearings, he seems suspicious of bold interpretive moves of any sort. Many parties have worked for years to set up the very question that the court faced in Sorrell. Yet Roberts deflated the case, deciding it on the narrowest grounds possible.

Second, though cases that affect the liability of American businesses will continue to present themselves to the Roberts Court -- whether they be in the field of punitive damages, tobacco litigation, or preemption - any hopes of conservative judicial activism may turn out to be overstated. Many hope that this Court will undo a generation of so-called liberal judicial activism, in areas that have made it easier for plaintiffs to recover damages from corporations, with an activism of its own that rolls back modern rules to favor corporations. But if this movement occurs, it's far from certain, now, that Chief Justice Roberts will be a part of it.

Sorrell is but the first of many such cases to come, and we already see the factions beginning to form. Chief Justice Roberts, who seems to have his own very personal agenda about what he wants the Supreme Court to do, will play a key role in determining how much law reform the Court will provide American business, and how much it will stay the course.