No. 2009-2148IN THE SUPREME COIJR"I' OF OHIO

FRANCIS BATTAGLIA,

Plaintiff-Appellee,

v.

CONSOLIDATED RAIL CORPORATION,:

Defendant-Appellant.

On Appeal from theOhio Court of AppealsSixth Appellate District

Court of AppealsCase No. L-08-1332

APPELLANT CONSOLIDATED RAIL CORPORATION'SMOTION FOR RECONSIDERATION

David A. Damico, Esq. (0056053)(COUNSEL OF RECORD)Bums, White & Hickton, LLCFour Northshore Center106 Isabella StreetPittsburgh, PA 15212(412) 995-3000/Fax: (412) 995-3000dadamico@bwlillc.com

Colleen A. Mounteastle, Esq. (0069588)Gallaglrer SharpSixth Floor-Bulkley Building1501 Euclid. AvenueCleveland, Ohio 44115(216)241-5310JFax:(216)241-1608cmountcastle@gallaghersharp.com

COUNSEL FOR APPELLANTCONSOLIDATED RAII, CORPORATION

E.J. Leizerman, Esq. (0011300)Michael J. Leizerman, Esq. (0063945)E.J. Leizerman & Associates, LLC717 Madison AvenueToledo, OH 43624

Charles R. Saxbe, Esq. (0021952)Donald C. Brey, Esq. (0021965)Chester, Willcox & Saxbe LLP65 East State Street, Suite 1000Colmnbus, OH 43215(614) 221-4000/Fax (614) 221-4012rsaxbe@ewslaw.com;dbrey@cwslaw.com

COUNSEI. FOR APPELLEEFRANCIS BATTAGLIA

INTRODUCTION

Pursuant to Ohio Supreme Court Practice Rule XI, §2(A)(1), Appellant Consolidated Rail

Corporation ("Conrail") moves this Court for reconsideration of its order, journaLized on

February 10, 2010, in which this Court declined jurisdiction to hear this case, and consequently

dismissed Conrail's appeal. By a narrow majority, this Court voted to decline jurisdiction,

although three Justices would have accepted jurisdiction over the appeal,'

Mindful that a motion for reconsideration "shall be confined strictly to the grounds urged

for reconsideration" and "shall not constihtte reargunient of the case," S.Ct.Prac.R. XI(2)(A),

Conrail seeks only to emphasize the significant legal concerns in this case and highlight the

collateral consequences arising from the Sixth District's decision. It is Conrail's belief that once

these concerns are taken into account, in conjunetion with a reevaluation of the arguments

already advanced before this Court in support of jurisdiction, the four Justices who originally

voted not to lrear this appeal will, upon further reflection, find that this appeal raises issues of

public or great general niterest, and accept Propositions of Law Nos. I and 112 for full review on

the merits.

MEMORANDUM IN SUPPORT OF RECONSIDERATION

The errors committed by the lower court have the potential to affect many Federal

Employers' Liability Act, 45 U.S.C. §51, et seq. ("FELA") cases, with staggering implications

' Chief Justice Moyer and Justice Stratton disseuted from the order declining jurisdiction. Justice O'Connor also

dissented and voted to accept the appeal on Propositions of Law Nos. I and 1I. See, 2/10/2010 Case Announcements,

2010-Ohio 354, at 12.

2 Proposition of Law No. I: A railroad does not violate the LIA when an employee merely assetts the presence ofdiesel fumes in locomotive cabs throughout his career, but presents no evidence that the locomotive equipment wasdefective, or that the railroad violated OSHA standards relative to the level of diesel exhaust.

Proposition of Law No.11: The degree of proximate cause required in a FELA claim, wltether based in a negligenceor stiict liability, must conform to the traditional common law principles of causation; thus, it is improper for a trialcourt to find liability on the basis that the railroad's negligence played any part "even in the slightest" in producingthe plaintiffs injuries.

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for railroads. To hold, as the lower court did, that a federal regulation demands that absolutely

no diesel exhaust ever enter a locomotive cab, creates an unintended result that could effectively

render large segments of the rail industry's locomotive fleets, which by all indieatious provide a

safe working environment, in violation of federal law. Moreover, the lower court's

inisapplication of the FELA's causation standard has the potential to expand FELA liability

beyond what was intended by Congress when it incorporated common law negligenoe concepts

into the FELA.

The Sixth District's hoid'ulgs on these topics are manifestly incorrect and illustrate that

there are fundamental issues arisinig under the F'ELA that are the source of confusion and lack of

uniformity in Ohio's courts. The issues decided by the Sixth Distriet can arise in virtually every

FELA case, and thus, have recurring importance. Given the railroad industry's significant

presence in Ohio, there is a high volume of FELA-related litigation. The Sixth District's

erroneous precedent therefore will be far reaching, which is why Conrail respectfully requests

that this Court reconsider its decision and accept jurisdiction over this matter.

A. The Sixth District's Misinterpretation of 49 C.F.R. §229.43(a) Should Not StandBecause It Imposes An Impossible Duty On The Railroads.

The lower court's erroneous interpretation of §229.43(a) will have profound implications

on the entire railroad industry. The Sixth District, agreeing with the trial court, determined that

§229.43(a) unambiguously states that the presence of diesel exhaust in a locomotive cab, at wny

level, constitutes a violation of the regulation, resulting in a finding of per se negligence. Under

the Sixth District's erroncous interpretation, there is no way that a railroad could ever be in

compliance with §229.43, because a level of diesel exhaust in the cab would constitute a

violation of the rcgulation, and the Federal Railroad Administration, the federal agency charged

with enforcing § 229.43, has made clear that "it is impossible to prevent the entry of some fumes

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in the cab." March 1980 Preamble, Final Rule, Locomotive Safety Standards and Locomotive

Inspection, 49 C.F.R. § 229.43 ( emphasis added).

Furtlier, the language of the regulation does not support the Court of Appeals' deeision.3

The regulation states that exhaust must be released outside of the cab and prescribes a means,

naanely suffieient stack height, to ensure the railroad's employees are adequately protected.4

Nowhere does § 229.43 state that exhaust properly released froin the locomotive can never enter

into the cab. Similarly, there is no language indicating that the mere presence of any exhaust in

the cab constitutes a violation of the regulation. To the contrary, as noted, the FRA has

interpreted § 229.43, and its predecessors, to recognize that some products of diesel combustion

will enter locomotive cabs without violating the Loconiolive Inspection Act, 49 U.S.C. §20701,

et seq. ("LIA"). However, the lower court ignored evidence reflecting the intent of the FRA.

Further, the purpose of §229.43(a) is to protect employees front harmful levels of diesel

exhaust, not to assure they work in an immaculate environment, a point that is acknowledged by

the FRA. See, FRA, Locomotive Crashworthiness and Cab Working Conditions, Report to

Congress, ch. 7, p.16 (1996) (explaining that FRA applies OSIIA thresholds for the purpose of

determining compliance with 229.43). The fact the FRA chose to use OSHA exposure standards

for determining cotnpliance with the regulation is a tacit acknowledgement that a zero tolerance

standard is not intended. The court below erred in failing to defer to this authoritative

construction of the LIA.

3 Section 229.43(a) states that "[p]roducts of combustion shall be released entirely ontside the cab and othercompartnrents. Exhaust stacks shall be of sufficient height or other means provided to prevent entry of products ofcombustion into the cab or other compartments under usual operating conditions."

° There was no evidettce presented that the stacks on the locomotives Battaglia operated were of insafficient height.

1'he lower court's approach is also at odds with the fundamental tenet of statutory

interpretation, which calls for construing statutes in a way that is consistent with their overall

purpose and structure. See, Heydenfeldt v. Daney Gold and Silver Mining Co. (1876), 93 U.S.

634, 638-39. "All laws should receive a sensible construction. General terms should be so

limited in their application as not to lead to injustice, oppression, or an absurd consequence. It

will always, therefore, be presumed that the legislature intended exceptions to its language,

which would avoid results of this character." Sorrells v. United S'tates (1932), 287 U.S. 435, 447

(quoting United States v. Kirby (1868), 7 Wall. 482, 486-87); United States v. Katz (1926), 271

U.S. 354, 357; United States v. Ryan (1931), 284 U.S. 167, 175; see also Hawaii v. Mankiehi

(1903), 190 U.S. 197, 214 ("'Nothing is better settled than that statutes should receive a sensible

construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an

unjust or an absurd conclusion."' (quoting Lau Ow Bew v. United States (1892),144 IJ.S. 47,

59)).

Where compliance with a statute or regulation is impossible, a violation of the same will

not result in liability:

It is well settled that the law is not so unreasonable as to require the performanceof impossibilities as a condition to the assertion of acknowledged rights . . . and,when the Legislatures use language so broad as to lead to such results, courts mayproperly say that the Legislatnre did not intend to include those cases in which aliteral obedience has become impossible.

Gigliotti v. New York, Chicago & St. Louis R. Co. (1958), 107 Ohio App. 174, 181; Uncapher v.

West (1919), 100 Ohio St. 202, 206 ("if the provisions of this statute are impossible of

fulfillment, the court would not attempt to enforce them, for the court would presume that the

Legislature did not intend to do an absurd or impossible thing").5

If the Sixth District's decision is permitted to stand, there is no way that a railroad could

ever be in compliance with §229.43. It is impossible for locomotive cabs to be sealed perfectly

airtight, yet this is what the lower court held that the regulation demands. The court's failure to

reach a more logical and practical interpretation of t1ie regulation's language has the effect of

potentially rendering every locomotive to be in violation of federal law. Notably, however, the

FRA, the agency responsible for monitoring railroad compliance with safety regulations, has

never embraced so radical an inteipretation of § 229.43(a). This Court's intervention to rectify

the Sixth District's improper result is necessary to avoid the extraordinary consequences of the

lower court's errors of law.

B. The Proper Standard For Assessing Liability Under The LIA Presents AnImportant And Recurring Issue That Warrants Jurisdiction of this Court.

To sustain a claim under the LIA, a plaintiff must establish that the locomotive was not in

"proper condition" and "safe to operate." See, 49 U.S.C. §20701. Evidence must be "adduced to

establish some Rarticular defect." Didinger v. Pennsylvania R. Co. (C.A. 6, 1930), 39 F.3d 798,

799 (emphasis added). 1'hus, the Sixth District's decision upholding summary judgment for

Battaglia on his LIA claim, even though he failed to present mny objective evidence of a defect in

any locomotive,6 contradicts the requirement that a violation of the LIA requires a showing that

the equipment is dePective. See, Shesler v. Consol. Rail. Corp., 151 Ohio App.3d 462, 478, 2003-

s Resortto common law priuciples in interpreting and applying the F.F.LA is appropriate. Norfolk Southern R.V. Co. v.

Sorrell, 549 O.S. 158, 165-66 (2007)("Absent express language to the contrary, the elements of a FELA clann aredeternrined by reference to the common law").

6 Battaglia claims in his Memorandum in Opposition that he presented sworn evidence proving no fewer than fourspecific defects and oue regulatory violation. Again, this sworn evidence was only the self-serving affidavits of aPlaintiff and a co-worker. No objeetive evidence was provided by Battaglia, because there was none.

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Oliio-320, at ¶62, citing Bolan v. Lehigh Valley RR Co. (C.A. 2, 1948), 167 F.2d 934; Garcia at

715; Gowins v. Pennsylvania RR. Co. (C.A. 6 1962), 229 F.2d 431, 433.7

What makes reconsideration essential in this case is that the Sixth District's decision

highlights the inconsistency in Ohio's appellate courts on the issue of whether a specific defect

must be established to sustain a LIA claim.8 See, e.g., Hager v. tUorfolk & Western Railway Co.,

8th Dist. No. 87553, 2006-Ohio-6580 (finding a violation of the LIA due to general diesel

exposure in locomotive cabs throughout the employee's entn•e career, without evidence of a

specific defect); Shesler, supra, (holding that to establish a violation of the LIA, a plaiutiff must

show that the catrier's equipment is defective). Declining jurisdiction over this appeal will leave

contradictory decisions in Ohio's courts of appeals. Only this Court can bring needed clarity to

the law in Ohio,

The Sixth District's decision, if left uncorTected, will have a sweeping impact on railroad

litigation. If the decision is permitted to stand, it would create a situation under which a railroad

employee need only file his or her own self-serving affidavit generally alleging exposure to

futnes in locomotive cabs to successfully establish a violation of the LIA. Com•ail asks this

Court to grant review and hold that a violation of the LIA requires more than self-serving

testimony from an employee that there were diesel fumes in locomotive cabs at some time during

his decades-long career. Rather, pursuant to the FRA, a violation under the LIA requires

' The cases cited by Battaglia in his Memorandum Opposing Jurisdiction do not contravene these requirements.Instead, they all contain distinguishable fact patterns because the employee in each case alleged an injmy from aparticular incident, and not alleged exposure over a period of tinie, as asserted in this case. See, Southern Ry. Co. v.

Bryan (5°i Cir. 1967) (dm•ing attempt to return overturned locomotive to tracks, a loosened cable backlashed andpiece of its attaching apparatus struck employee), 375 F.2d 15, 158; Richards v. Consolidated Rail Corp. (6°i Cir.2003) (conductor fell while inspecting train to determine cause for automatic braking), 330 F.3d 428, 432; Lilly v.

Grand Trunk W. R.R. (1943), 317 U.S. 481 (brakeman slipped on ice). Accordingly, Battaglia's specious argumentthat he is not rcquired to provide evidence of a specific defect to prevail on his LIA elaim is completely erroneous.

$ This same issue is also mirrently pend'utg before the Eighth District in Shepard v_ Grand 7runk, Eighth Appellate

District Case No. CV-558055.

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objective evidence that a locomotive was defective (e.g., evidence that the railroad violated

OSHA standards regulating the pennissible level of diesel exhaust, or that the FRA issued the

railroad a citation or penalty for operating a defective locomotive). 'I'he alarming impact of the

appellate court's decision p]ainly warrants review by this Court. Accordingly, this Court should

grant jurisdiction to ensure that a violation of the LIA and §229.43 requires competent evidence

that a locomotive was defective.

C. This Court Should Accept Jurisdiction To Clarify The Proper Standard OfCausation Under The FELA Because It Continues To Be The Subject Of ConfusionAnd Lack Of Uniformity In Ohio Courts.

1'he Sixth District granted summary judgment in favor of Battaglia on the erroneous basis

that an "injury sustained by a railroad worker that is caused in any degree, even the smallest, by

the negligence of the employer, results in the obligation of the employer to pay damages."

Battaglia v. Conrail at ¶40. The Sixth District's decision should not stand because it is at odds

with the plain language of the FELA, Congressional intent, and prior decisions of this Court and

other courts.

Confusion and disagreement over the proper standard of causation in FELA cases have

existed for decades and show no sign of abating. The Sixth District's decision has unnecessarily

added new confusion to the issue by unjustifiably expanding the alleged "relaxed" standard of

causation applied to dispositive motions in FELA cases. The issue of causation is relevant in

virti,ially every FELA lawsuit. Only clarification of the proper standard of causation by this

Court will end the intolerable lack of unifonnity on this fundamental issue in Ohio.

Congress envisioned that the remedy available under the FELA would be consistent with

the common law concepts of causation, a point consistently recogiiized by the U.S. Supreme

Court. See e.g., Urie v. Thompson (1949), 337 U.S. 163, 174, Southern Ry. v. Gray (1916), 241

U.S. 333, 339. That Court has issued a number of decisions conbrming that proximate cause is

the applicable causation standard under FELA.9 Neither subsequent amendments to FELA, nor

the U.S. Supreme Court's decision in Rogers v. Missouri Pac. R.R., 352 US. 500 (1957),

supports lower court decisions that have purported to "relax" the standard of causation.

Although the United States Supreme Court has not directly addressed this issue since

Rogers, the Supreme Court's decision in Norfolk Southern v_ Sorrell (2007), 549 U.S. 158, is

grounded in the recognition that Congress did not deviate from common law causation doctrines

when it enacted the FELA. Id. at 171. ("We conclude that FELA does not abrogate the common-

law approach...). Although Sorrell did not identify the proper standard of causation under

FELA, as that question was not properly presented to the Court, in a concurring opinion, three

Justices opined that proximate cause is the proper legal standard. Id. 172 (Souter, J., concurring).

Further, given the adherence to common law principles, it is highly unlikely that the Court would

find that a lesser standard than proximate cause applies to FELA cases.

Despite this overwhelming precedent, the Sixth District improperly relied on Rogers in

affirming summary judgment for Battaglia. In doing so, the court wrongfully removed the issue

of causation from the purview of the jury. However, the "relaxed" standard in Rogers applies

only to evaluating whether there is sufficient evidence to allow a matter to be presented to the

jury Por review. Id at 506. Rogers made clear that the test above applies in instances where the

9 See e.R., Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 32 (1944)("to recover mider [FELA], it [i]sincumbent upon Ithe plaintifP] to prove that [the defendant] was negligent and that such negligence was theproximate cause in whole or in part" of the employees injury); Lang v. N. Y Cent. R.R., 255 U.S. 455, 461(1921)(reversing for lack of evidence of proximate cause); St. Louis-S.F. Ry. v. Mills, 271 U.S. 344, 347 (1926)

(same); Northrvestern Pac. RR. v. Bobo, 290 U.S. 499, 503 (1934) (same); see also, ag., St. Louis, Iron Mountain &

S. Ry. v. McWhirter, 229 U.S. 265,280 (1913); Davis v. Kennedy, 266 U.S. 147, 148 (1924); Minneapolis St. Paut &

SaultSte. Marie Ry. v. Goneau, 269 U.S. 406, 409-10 (1926); New York Cent_ R.R. v. Ambrose, 280 U.S. 496, 489

(1930); Swinson v. Chicago, St. Paul, Minneapolis & Ornaha Ry., 294 U.S. 529, 531 (1935); Bradv v. Terminal R.R.

Ass'n, 303 U.S. 10, 15 (1938); Tiller v. Atlantic Coast Line R.R, 318 U.S. 54, 67 (1943); Coray, 335 U.S. 520, 523

(1949); Urie, 337 U.S. 163, 195; O'Donnell v. Etgin, Joliet & E. Ry., 338 U.S. 384, 390 (1949); Carter v. Atlantic &

St. Andrews Bay Ry., 338 U.S. 430,434-35 (1949); Brown v. Western Ry. ofAla., 338 U.S. 294, 297-98 (1949).

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jury could find either the employee's or the railroad.'s negligence to be the proximate cause of

the injury for which damages are sought. However, Rogers did not address the degree of

causation necessary for ajury finding under FELA. As the concurrence in Sorrell explained:

Despite some courts' views to the contrary, Rogers did not address, much lessalter, existing law governing the degree of causation necessary for redressingnegligence as the cause of negligently inflicted harm; the case merely instructedcourts how to proceed when there are multiple cognizable causes of an injury.

Norfolk S. Ry. Co. v. Sorrell (2007), 127 S. Ct. 799, 809-810 (Souter, J., concurring) (footnote

omitted).

Battaglia incorrectly asserted in his Memorandum Opposing Jurisdiction that Conrail first

raised the issue of proximate cause before this Court, and therefore the issue should be deemed

waived. That is wrong. Conrail argued to the court of appeals that the correct standard was not

the "contributed to any degree, even the slightest" standard. Appellate Br. 15-16. Conrail

explained that this standard was limited to determining whether there was sufficient evidence for

a plaintiff to defeat summary judgment. Id at 15-16. Conrail furkher explained that Rogers did

not undo other Supreme Court cases holding that "the requirenient of proximate causation must

still be met." Conrail Reply at 4-5.

Conrail's position in the court of appeals on the issue of causation is the same one

adopted long ago by this Court. Specifically, in Reed v. Pennsylvania Rd. Co., this Court

explained that the standard set forth in Rogers addresses whether the "record presents a question

of fact for the jury," but does not govern the separate determination whether the evidence

estabiishes "a prcrxitnate cause of injury" i71 Ohio St. 433, 434-435 & nn. 2-3 (ruling that

"proximate cause" remains the standard to support recovery for cases governed by the FELA).

In his Memorandum Opposing Jurisdiction, Battaglia failed to address Reed, or make any

attempt to distinguish it from this matter.

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That omission is telling because "courts of appeals are required to follow the law as it is

nrterpreted by this court." Mannion v. Sandel, 91 Ohio St.3d 318, 322, 2001-Ohio-47. Well-

established as that sound principle rnay be, the Sixth District failed to follow this Court's

decision in Reed. As such, the Sixth District's reliance on Rogers as the basis for granting

suminary judgment in t'avor of Battaglia is fundamentally and legally incorrect, and does

violence to a controlling decision of this Court.10 By removing the determination of liability in

this FELA action from the jury, the Sixth District erroneously expanded the scope of liability

under the Rogers standard. This is not, and should not be the law in Ohio.

LJnequivocally, proximate cause is required under the FELA. The "relaxed" standard

utilized by the Sixth District to uphold summary judgment in favor of a railroad employee

contravenes well-established principles of tort law, and will continue to lead to unjust and

unintended results in future cases. This Court should grant jurisdiction to ensure that the

FELA, an important federal statute that generates substantial litigation in Ohio courts, is

applied properly in this State.

CONCLUSION

WHEREFORE, Appellant, Consolidated Rail Corporation, respectfully requests that this

Court reconsider its order of February 10, 2010, declining jurisdiction, and accept Propositions

of Law Nos. I and 11 for full review on the merits.

10 Like the Sixth District, the 1'enth District recently concluded, based on Rogers, "that the proximate cause staazdardhas been supplanted by a less stringent standard." Martiia v. CSX Transp., (na, 2009 WL 3823364, ¶ 41 at *11(Ohio App. 10 Dist. Nov. 17, 2009). Like Battaglia, the Martin court made no effnrt to address this Couit's prior

rn6ng in Reed.

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Respectfully submitted,

By:

David A. Dainico, Esq. (0056053)BURNS, WHITE & IIICKTON, LLCFour Nortlishore Center106 Isabella Street

Pittsburgh, PA 15212(412) 995-3000/Fax: (412) 995-3000dadamico@bwhllc.com

Colleen A. Mounteastle, Esq. (0069588)GALLAGHER SHARPSixth Floor-Bulkley Building1501 Euclid AvenueCleveland, Ohio 44115(216) 241-5310/Fax: (216) 247 -1608cmountcastle@gallaghersharp.com

COUNSEL FOR APPELLANT,CONSOLIDATED RAIL CORPORA'I'ION

CERTiF1CATE OF SERVICE

I hereby certify that on February L?, 2010, a true and correct copy of the foregoing

Motion.for Reconsideration was served upon the following counsel of record via first-class

17nited States Mail, postage prepaid:

E.J. Leizerman, Esq.Michael J. Leizerman, Esq.

E.J. Leizerman & Associates, LLC717 Madison AvenueToledo, Oll 43624

Charles R. Saxbe, Esq.Donald C. Brey, Esq.

Chester, Willcox & Saxbe LLP65 East State Street, Suite 1000

Columbus, OI3 43215

GA_LLAGHERSHARP

By:Colleen A. Mountcastle, Esq. (0069588)Sixth Floor-Bulkley Building1501 Euclid AvenueCleveland, Ohio 44115(216) 241-5310/Fax: (216) 241-1608