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Thursday, October 17, 2019

O'Fallon lawyer's FELA verdict to be tested at USSC

By Ann Knef | Jan 6, 2011


O'Fallon attorney Bob Marcus said he considers it an honor that a Federal Employers' Liability Act (FELA) case he won in federal court will serve as a proximate cause test case in oral arguments before the U.S. Supreme Court on March 28.

Marcus tried the case McBride v. CSX Transportation in 2008 in the U.S. District Court for the Southern District of Illinois which resulted in a $275,000 plaintiff verdict.

The U.S. Supreme Court recently granted review of the McBride case to determine the proper test for establishing liability in FELA cases. The act, established by Congress in 1908, holds railroads responsible for workers' injuries if the defendant is "in whole or part" negligent. The law was upheld at the Supreme Court in 1957 in an "in whole or part" causation test in Rogers v. Missouri Pacific.

According to Marcus, the McBride case is drawing national attention, because CSX is "attempting to overturn 50 years of existing law."

He said that CSX proposes that injured employees should meet a higher standard of proof before liability could be imposed on a railroad under FELA.

Marcus also said that railroads have been looking for the right case to take to the Supreme Court ever since a concurring opinion written by Justice David Souter in Norfolk Southern Railway Co. v. Sorrell in 2007 opened the door on the proximate cause issue. In Sorrell, although the majority opinion did not address the issue because it had not been properly raised, Souter wrote a concurring opinion, by way of dicta, and suggested the issue be reviewed.

The McBride case may have been selected because the suit was brought in federal court and was taken up to the 7th Circuit Court of Appeals, Marcus said.

He said his firm, Kujawski & Associates, would hire an appellate professional to argue the case before the Justices.

In the underlying case, locomotive engineer Robert McBride was injured while performing railroad switching duties. He alleged he was without proper training and was required to use a locomotive and train that was not safe for that type of work.

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