Injured Railroad Worker Urges Fifth Circuit to Review Controversial Opinion

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In what the dissenting judge classified as "flatly contradicting" the U.S. Supreme Court's decision last year in CSX Transp., Inc. v. McBride, two Fifth Circuit judges reversed a jury verdict that was entered in favor of an injured railroad worker. The injured worker is now asking the Fifth Circuit to review the matter.

In what the dissenting judge termed a "myopic reading of the record that is clearly wrong in itself" Circuit Judges Leslie H. Southwick and Priscilla R. Owen, both judges appointed to the Fifth Circuit by former President George W. Bush, issued a majority opinion on March 13, 2012, in Harold Huffman v. Union Pacific Railroad Co., Cause No. 09-40736, reversing a jury verdict in favor of an injured railroad worker. Circuit Judge James L. Dennis, the third judge on the panel, refused to join in the opinion and instead issued a 12 page dissent in which he stated that the majority’s opinion “directly contradicts the FELA standard of causation prescribed by the Supreme Court and the FELA standard of appellate review prescribed by our circuit precedents.” Based largely on Judge Dennis’ dissenting opinion, Mr. Huffman who is represented by the law firm of Sammons & Berry, P.C., in Houston, Texas, filed a Petition for Rehearing on March 26, 2012, requesting that all 22 judges on the Fifth Circuit review the controversial opinion.

Harold Huffman, a railroad trainman for nearly 40 years, filed suit on February 21, 2007, under the Federal Employers’ Liability Act (“FELA”) asserting that he suffered injuries to his knees as a result of the negligence of his employer, the Union Pacific Railroad Company. Unlike workers in most other industries who are covered by “no-fault” workers’ compensation statutes, in order for a railroad worker to receive compensation for an on the job injury he must make a claim under the FELA and prove that his injury resulted “either in whole or in part” from the negligence of his employer. The case was tried to a jury in federal court in Lufkin, Texas. At trial, Huffman offered evidence, including the testimony of a certified ergonomist as well as his treating physician, that established: (i) Mr. Huffman’s job exposed him to risk factors for musculoskeletal disorders of the lower extremities, including the knees, (ii) osteoarthritis, such as that suffered by Mr. Huffman, was caused by wear and tear to knee joints; and (iii) Union Pacific failed to train Mr. Huffman on how to safely perform his job in an ergonomically optimal way and failed to provide a safe workplace. On June 3, 2009, the jury returned a verdict in favor of Mr. Huffman in the amount of $606,000, concluding that the injuries to his knees were caused, at least in part, by the negligence of the Union Pacific. Union Pacific appealed. During the pendency of the appeal, Mr. Huffman underwent a knee replacement surgery. Despite the fact that Union Pacific did not dispute on appeal the jury’s determination that it was negligent, on March 13, 2012, Judge Southwick, joined by Judge Owen, issued an opinion that reversed the jury verdict and ordered that judgment be entered in favor of Union Pacific, holding that “the path from worker injury to employer liability was too broken in this record to allow juror common sense to travel it.”

This is not the first time Judges Southwick and Judge Owen have been the subject of controversy. Judge Owen, a former justice on the Supreme Court of Texas, was originally nominated to the Fifth Circuit on May 9, 2001, by then President George W. Bush who touted her as a judicial conservative who would “interpret the law, not legislate from the bench.” At her confirmation hearing in 2003, Senator Edward Kennedy stated that Judge Owen's decisions "consist of support for the businesses and employers over the rights of the plaintiffs and I believe often stretch the law to do so." Only after the Republicans gained a majority in the Senate was Judge Owen’s appointment finally confirmed in May of 2005. Judge Southwick, a former Mississippi state court of appeals judge, was nominated to the Fifth Circuit on January 9, 2007, also by President Bush. At Judge Southwick's confirmation hearing in 2007, Senator Kennedy expressed concern that some of Judge Southwick's decisions "seem to bend over backward in favor of the larger corporation at the expense of individual Americans." Despite the fact that Southwick’s appointment was opposed by several organizations including the People for the American Way, the Human Rights Campaign, as well as by then Senator Barack Obama he was ultimately confirmed.

According to Judge Dennis’ dissent in the Huffman case, the opinion by Judges Southwick and Owen “flatly contradicts” last year’s decision by the U.S. Supreme Court in CSX Transportation, Inc. v. McBride, No. 10–235, which reaffirmed the relaxed standard of causation that has been applied to FELA cases for over 50 years. As the Supreme Court stated in McBride, under the FELA “The test of a jury case is simply whether the proofs justify with reason the conclusion that the employer’s negligence played any part, even the slightest, in producing the injury.”

A decision from the Fifth Circuit as to whether it will grant a rehearing on the matter is expectedly shortly.

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Kirk Sammons
ksammons@sammons-berry.com
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