Earlier this month, the Fifth Circuit affirmed a Texas district court’s finding of Jones Act liability in a benzene-exposure case. The plaintiff, a former helper, rigger, and leadman for Brown & Root Marine Operators, alleged exposure to benzene over several years while working aboard Brown & Root’s barges. The district court entered a judgment for the plaintiff and defendant appealed. One of the issues on appeal was whether the district court erred in applying the “featherweight” causation standard to the Jones Act claim rather than a “proximate” causation standard. The court explained that Fifth Circuit precedent employed a standard of “producing” rather than “proximate” cause and the burden of proof is “featherweight”, i.e. a showing of even the slightest cause.
The defendant argued that Justice Souter’s concurrence in Norfolk Southern Railway v. Sorrell, 549 U.S. 158 (2007), rejected the “producing cause” standard in favor of “proximate cause.” After oral argument, the defendant filed a letter with the court advising of the Supreme Court’s recent grant of certiorari on this issue in McBride v. CSX Transp., Inc. (7th Cir. 2010). Noting that Souter’s concurrence may suggest where the law will go in the future, the Fifth Circuit was bound to follow its clear precedent even where the Supreme Court has granted certiorari on an issue.
Note: The Supreme Court granted certiorari in McBride v. CSX Transp., Inc., on November 29, 2010. Oral arguments are scheduled for March 28, 2011. The question presented is “[w]hether the Federal Employers’ Liability act, 45 U.S.C. §§ 51-60, requires proof of proximate causation.”