Page 19: of Marine News Magazine (April 2011)

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www.marinelink.com MN 19 causation standard is easier for the plaintiff to meet than the “proximate cause” standard, which applies to state common law negligence claims, such as for car accidents. Under the more difficult proximate cause stan- dard, the plaintiff must prove the negligence of the defendant was a “substantial factor” in causing their injury or the defendant’s negligence was the “sole,” “direct,” “complete,” “responsible,” “efficient,” or “produc- ing” cause of the injury.

On November 29, 2010, in the case of CSX Transportation, Inc. v.

McBride, the U.S. Supreme Court agreed to decide whether the FELA requires proof of proximate causa- tion. It is a distinct possibility that, given the current conservative com- position of the court, the Supreme

Court will hold in McBride that a rail worker must prove the railroad’s neg- ligence was a “proximate cause” of his injuries, jettisoning the more lenient “featherweight” causation standard.

Since the Jones Act expressly incorpo- rates the FELA, if the Supreme Court rules in this manner, then seamen will have to prove when pursuing a Jones

Act negligence claim that their employer’s negligence was the “proxi- mate cause” of their injury.

If the law applicable to rail worker and seaman federal negligence claims changes as noted, this does not mean these cases will be unwinnable.

Certainly not. It just means these cases will become a tad harder to prove. Rail workers and seamen will likely continue to win favorable set- tlements and verdicts, if they have strong cases. But if the liability facts of their cases are more marginal, these workers may have a more difficult time prevailing.

Fred Goldsmith, formerly general counsel of one of the country’s largest tug operators, is licensed in PA, WV,

OH, and TX, and practices admiral- ty & maritime, railroad, oilfield, per- sonal injury, motorcycle, and insur- ance coverage litigation with

Pittsburgh-based Goldsmith &

Ogrodowski, LLC (www.golawllc.com). You can reach him at [email protected] or (877) 404-6529.