This week, the Fifth Circuit reversed a jury verdict in a Federal Employers Liability Act case with an opinion that may signal a stricter approach to evidentiary review. Click here to download the court's opinion in Huffman v. Union Pacific Railroad, No. 09-40736. The panel found that there was no "probative evidence" to permit the jury to draw an inference that the plaintiff's injury was caused by the defendant's negligence.
Huffman claimed that he had developed knee osteoarthritis as a result of his work for Union Pacific. He claimed that Union Pacific was negligent in not training him how to perform his tasks in an ergonomically optimal way. The jury found that Union Pacific's negligence was a cause of Huffman's osteoarthritis and awarded $606,000 in damages.
In a 2-1 opinion authored by Judge Southwick and joined by Judge Owen, the Fifth Circuit reversed. Judge Dennis dissented. The court noted that the standard for causation in a FELA case is not demanding. A plaintiff must show only that the employer's negligence "played a part - however small - in the development of his condition." The court also held that expert testimony is not required. All that is required is evidence that would allow the jury to infer based on their "common sense and common understanding" that the defendant's negligence "contributed in any way" to the plaintiff's injury.
The court noted that there was no issue on appeal about the jury's finding that Union Pacific was negligent. Moreover, there was ample evidence that Huffman was suffering from osteoarthritis. But the court found that there was "a complete absence of probative facts" to support a conclusion that the negligence contributed to the osteoarthritis. The key passage in the opinion is:
At best, there was evidence that the kind of work trainmen did, if not performed properly, could increase the chances of musculoskeletal disorders. The term musculoskeletal disorders, however, encompasses “a whole array of problems that involve muscle, tendon, bone, ligaments, joints, even nerves and blood vessels.” There was not any testimony listing osteoarthritis in the knees as a musculoskeletal disorder that could result from performing trainmen activities. . . . Musculoskeletal disorder is too broad a category, and the evidence introduced too general, for jurors to have a basis on which to infer even the minimal degree of causation required.
The court emphasized that "evidence" alone is not enough; the evidence must be "probative." Although "[j]urors have wide latitude in FELA cases, and the quantum of evidence that is required is low," the court held that "[j]urors still may not simply guess." Because the court found no probative evidence of causation, it reversed the judgment and remanded the case for entry of judgment in Union Pacific's favor.
Although this case arises in a specific and somewhat narrow context (FELA liability), the court's approach to evidentiary review may have broader application. If the causation evidence was insufficient even for the low standards of the FELA, then it would certainly not be sufficient in more traditional contexts. Moreover, the court's focus on the quality of the evidence sounds very similar to the Texas Supreme Court's approach to evidentiary review in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). It will be interesting to see whether Huffman signals closer scrutiny of jury verdicts in the Fifth Circuit.
-- Rich Phillips, Thompson & Knight