683 F.3d 619 (5th Cir. 2012), 09-40736, Huffman v. Union Pacific R.R.

Docket Nº:09-40736.
Citation:683 F.3d 619
Opinion Judge:PER CURIAM:
Party Name:Harold E. HUFFMAN, Plaintiff-Appellee, v. UNION PACIFIC RAILROAD, Defendant-Appellant.
Attorney:J. Kirkland Sammons (argued), Sammons & Berry, P.C., John Gus Zgourides, Sr. Trial Atty., Sammons & Associates, P.C., Houston, TX, for Plaintiff-Appellee. Harry Alston Johnson, III (argued), Phelps Dunbar, L.L.P., Baton Rouge, LA, William David George, Mainess Gibson, Connelly, Baker, Wotring, L....
Judge Panel:Before DENNIS, OWEN and SOUTHWICK, Circuit Judges. JERRY E. SMITH, Circuit Judge, did not participate in consideration of the rehearing en banc. DENNIS, Circuit Judge, dissenting:
Case Date:June 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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683 F.3d 619 (5th Cir. 2012)

Harold E. HUFFMAN, Plaintiff-Appellee,

v.

UNION PACIFIC RAILROAD, Defendant-Appellant.

No. 09-40736.

United States Court of Appeals, Fifth Circuit.

June 7, 2012

J. Kirkland Sammons (argued), Sammons & Berry, P.C., John Gus Zgourides, Sr. Trial Atty., Sammons & Associates, P.C., Houston, TX, for Plaintiff-Appellee.

Harry Alston Johnson, III (argued), Phelps Dunbar, L.L.P., Baton Rouge, LA, William David George, Mainess Gibson, Connelly, Baker, Wotring, L.L.P., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas; Thad Heartfield, Judge.

ON PETITION FOR REHEARING EN BANC

Before DENNIS, OWEN and SOUTHWICK, Circuit Judges.

Prior report: 675 F.3d 412.

Page 620

PER CURIAM:

The court having been polled at the request of one of the members of the court, and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R.App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is DENIED.

In the en banc poll, 3 judges voted in favor of rehearing (Dennis, Elrod, and Graves), and 12 judges voted against rehearing (Jones, King, Jolly, Davis, Garza, Stewart, Clement, Prado, Owen, Southwick, Haynes, and Higginson).

JERRY E. SMITH, Circuit Judge, did not participate in consideration of the rehearing en banc.

DENNIS, Circuit Judge, dissenting:

I dissent from the court's failure to rehear this case en banc. The panel majority opinion improperly reverses a jury verdict of $606,000 and impermissibly adds extra burdens to the standard of causation applicable in cases arising under the Federal Employers Liability Act (" FELA" ) and the Jones Act1 in our circuit. The panel opinion holds that a FELA jury may not infer directly from the evidence that the railroad's negligence contributed to the plaintiff's injury unless a witness has first expressly testified that such a causal relationship exists. This holding directly conflicts with the Supreme Court's decisions in CSX Transportation, Inc. v. McBride, __ U.S. __, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011), and Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), and our decision and circuit precedent in Rivera v. Union Pacific Railroad Co., 378 F.3d 502 (5th Cir.2004).

In McBride and Rogers the Court held that under FELA the test of causation of injury in 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." McBride, 131 S.Ct. at 2636 (quoting Rogers, 352 U.S. at 506, 77 S.Ct. 443). The panel majority opinion, by reversing the jury verdict and holding that the jury could not draw a reasonable inference that employer negligence played a part, even the slightest, from the expert, lay, and circumstantial evidence of record, unless supported by a witness's explicit testimony on causation, directly conflicts with McBride and Rogers by imposing a standard of causation in FELA cases that is more burdensome than the relaxed standard of causation prescribed by the Supreme Court. Under FELA, " [t]he burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference." Rogers, 352 U.S. at 508, 77 S.Ct. 443 (footnote omitted).2

Furthermore, in Rivera, we followed the Supreme Court's decision in

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Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946), in holding that " [i]n the FELA context, when a defendant challenges the sufficiency of the evidence to support a plaintiff's verdict, we must affirm the denial of the defendant's motion for judgment as a matter of law unless there is a complete absence of probative facts to support the conclusion reached by the jury." Rivera, 378 F.3d at 505 (citing Lavender, 327 U.S. at 654, 66 S.Ct. 740). This standard clearly does not require explicit causation witness testimony or bar the jury from drawing its own reasonable inferences from the evidence as to whether employer negligence played any part, however slight, in bringing about the injury. The panel majority opinion directly conflicts with Rivera because it reverses the district court and grants a Judgment as a Matter of Law (" JMOL" ) for the railroad despite the presence of a great quantum of probative facts and evidence that support the jury's verdict.

1. Fault or Breach of the Standard of Care (Conceded on Appeal by the Railroad and the Panel Majority)

" [R]easonable foreseeability of harm ... is indeed an essential ingredient of [FELA] negligence. The jury, therefore, must be asked, initially: Did the carrier fai[l] to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances[?]" McBride, 131 S.Ct. at 2643 (second alteration added) (citations omitted) (internal quotation marks omitted). " If [employer] negligence is proved, however, and is shown to have played any part, even the slightest, in producing the injury, then the carrier is answerable in damages even if the extent of the [injury] or the manner in which it occurred was not ‘ [p]robable’ or ‘ foreseeable.’ " Id. (first alteration added) (citation and footnote omitted) (internal quotation marks omitted).

In this case, the jury found and inferred directly from the evidence that the railroad was negligent in failing to train Huffman and the railroad's other trainmen in ergonomically safe work methods and in failing to provide them with safe equipment and work environments; that the railroad knew or should have known that this negligence would result in musculoskeletal injuries to Huffman and other trainmen; that Huffman worked under these conditions caused by the railroad's negligence as a trainman for 39 years; that Huffman suffers from osteoarthritis of his knees that developed during his employment; and that Huffman's injuries were not caused by his own fault. The jury awarded Huffman $606,000 in damages.

On appeal, the railroad does not contest the jury's findings and inferences from the evidence that the railroad was negligent in failing to take precautions against trainmen's musculoskeletal injuries, through ergonomic training, safe equipment and safe workplaces. Thus, these facts are now undisputed and cannot be questioned on appeal. The majority agrees.

2. Causation: The Correct FELA Analysis Under the Supreme Court's Decisions.

Under FELA, the test of a jury case is simply " whether the proofs justify with reason the conclusion that employer...

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