O'Fallon attorney involved in FELA case at U.S. Supreme Court pleased with 5-4 outcome

By Amelia Flood | Jun 29, 2011

Marcus O'Fallon attorney Bob Marcus respectfully disagrees with a dissent written by United States Supreme Court Justice John Roberts that implies "the sky's the limit" for plaintiffs in Federal Employer's Liability Act (FELA) cases.


O'Fallon attorney Bob Marcus respectfully disagrees with a dissent written by U.S. Supreme Court Justice John Roberts that implies "the sky's the limit" for plaintiffs in Federal Employer's Liability Act (FELA) cases.

Marcus, the attorney who originally won $275,000 for former CSX Transportation engineer Robert McBride in a FELA case tried at federal court in Benton three years ago, spoke with the Madison County Record Wednesday about a June 23 ruling by the Supreme Court upholding the award.

While Supreme Court Justice Ruth Bader Ginsberg and the majority of the court upheld the traditional standard for causation in FELA cases, Roberts wrote in his dissent that the McBride ruling signaled an unfair shift in favor of FELA plaintiffs.

"Law has its limits," Roberts wrote in the dissent. "But no longer when it comes to the causal connection between negligence and a resulting injury covered by FELA. A new maxim has replaced the old: Caelum terminus est – the sky's the limit."

Marcus, who originally tried the McBride case and was part of his legal teams for arguments at the Seventh Circuit Court of Appeals and the high court, disagrees.

"Despite what he says, the sky is not falling in FELA," Marcus said. "There's a balance in FELA and has been for 50 years."

The McBride case began as a FELA suit filed in the Southern District of Illinois in 2004.

McBride was working on a run between Evansville, Ind. and Mount Vernon, Ill.

Despite protesting his working conditions, the plaintiff was allegedly ordered to make the train run and he suffered a debilitating injury to his hand.

The suit was tried before U.S. District Court Judge J. Phil Gilbert in 2008.

CSX appealed to the Seventh Circuit on the issue of what was the proper standard of causation in FELA cases.

Traditionally, according to Marcus and the majority opinion written by Bader-Ginsburg, the standard in FELA cases for causation has been "in whole or in part."

"The railroad is trying to make that language – 'in whole or in part,' – a higher hurdle," Marcus said.

The Ginsburg opinion emphasizes CSX's emphasis on the "proximate cause" standard.

The high court heard oral arguments in the suit in March.

Marcus, along with his firm-mate John Kujawski attended.

"It was a very exciting experience," Marcus recalled. "It was very intimidating walking up those stairs."

And spectators for the argument preceding the McBride case included former Supreme Court Justice Sandra Day O'Connor, who sat next to Kujawski at one point.

The high court entered its ruling on the McBride case June 23.

The justices decided the case 5-4 in McBride's favor.

Ginsburg was joined by Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer in favor of the full opinion. Justice Clarence Thomas agreed with the majority on all but one section of the opinion.

Roberts led the dissent and was joined by Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito.

In the majority opinion, Ginsburg noted that CSX did not cite any cases where applying the traditional FELA causation standard had proved to be a floodgate for plaintiffs' awards. The justice noted the dismissal rate and other checks on plaintiffs imposed by FELA as written.

"Unless and until Congress orders otherwise, we see no good reason to tamper with an instruction tied to FELA's text, long employed by lower courts, and hardly shown to be unfair or unworkable," Ginsburg wrote. "Notably, CSX itself did not settle on a uniform definition of the term 'proximate cause' in this litigation, nor does the dissent...FELA's language is straightforward: railroads are made answerable in whole or in part from [carrier] negligence."

Marcus noted his team and client's pleasure with the Supreme Court's ruling.

"We were very pleased with the opinion because it upholds FELA and 50 years of case and statutory law," he said. He noted he had already called McBride with the news.

"This is effectively the end," Marcus said. "It was a good end for him."

The oral arguments for McBride were made by attorney David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel P.L.L.C. while attorneys from Mayer Brown LLP of Washington D.C. argued for CSX.

CSX's legal team that prepared its arguments for the Supreme Court also included James Bax, Charles Rothfeld, and Dan Himmelfarb of Mayer Brown.

Bax represented CSX at the 2008 trial of the case.

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