(Posted January 31, 2019) The Supreme Court hands down one published opinion today. But before we get to that, let’s pause to mark the passing of a torch.

Last October, I noted briefly that Trish Harrington, the Supreme Court Clerk since 2003, had announced plans to retire, and the court wisely chose her chief deputy, Doug Robelen, to serve as the next Clerk. The time for that transition has arrived; today is Trish’s last day in office, and Doug will assume her duties tomorrow.

I won’t wax eloquent over the events of Trish’s tenure, which includes 13 years as chief deputy to her predecessor, David Beach. Instead, I’ll lay out here a story that illustrates her wonderful wit. (At a ceremony this month to mark her retirement, the chief justice tried to tell this tale, but he didn’t quite get it right.)

In Trish’s days as chief deputy, one of her roles was to handle correspondence with pro se litigants, including a fair number of persons who were receiving free room and board with the compliments of the Director of Corrections. She was conscientious about that, doing what she could to help these litigants as long as she didn’t have to give them legal advice.

One such individual sent her a letter that concluded with two questions: What do you look like? And can you fly a helicopter? Trish couldn’t resist replying, “If I can fly a helicopter, why do you care what I look like?”

Supreme Court Clerks tend to stick around for a long time; there have only been five since 1933. Trish is just the 14th in the long history of the Commonwealth. I’m definitely going to miss her, but she’s leaving the shop in very capable hands.



Today’s opinions – majority and dissent – in Norfolk Southern Railway v. Sumner provide a vital lesson in causation analysis. It’s a FELA claim by an injured conductor on a freight train. He was performing a role that required him to get off the train and separate several cars so they could be left on a side track near Danville for another locomotive to pick them up.

The conductor arranged to stop the train in the right place. The next thing he knew, he was lying in a ravine with broken bones and other injuries. A coworker found him there and arranged for help. The conductor was out of work for eight months; he had no recollection of how he fell.

The spot where he fell included only a narrow walkway between the elevated portion of the track and that ravine, which plunged downward at an angle of 70 degrees for 36 feet. The footpath was only 15” wide, well short of the industry-standard of 24”, and it contained larger, rougher gravel than would be safe to walk on. (For those of you who care about these things, the larger stuff is called track ballast, and is two inches or more in diameter. Smaller gravel, the kind that’s suitable for footpaths, is called yard ballast.)

The conductor sued under FELA, a highly remedial statute that provides for relaxed standards of proof for proximate causation. Contributory negligence doesn’t apply, and if the railroad’s negligence contributes to an injury “in the slightest degree,” the railroad can be liable.

The railroad objected at trial that there was no evidence that its negligence in providing a too-narrow footpath actually caused the conductor’s fall. There are, it argued, a host of possibilities, and since the conductor had no memory of the fall, the jury would have to speculate to conclude that a wider path would have made a difference. The judge decided to let the jury sort that out. The verdict came in for the conductor, fixing damages north of $300,000.

On appeal, the justices narrowly affirm the judgment. Senior Justice Russell writes on behalf of the chief justice plus Justices Mims and Powell, citing some comparable cases in which SCOTUS has approved plaintiffs’ judgments despite wafer-thin causation evidence. The majority rules that “There was evidence to support the inference that the defendant’s negligence played a part, however small, in causing the fall which was the source of the plaintiff’s injury.” That makes it a jury issue.

Justice McCullough crafts an interesting dissent on behalf of Justices McClanahan and Kelsey. He points out that there are two components of causation: proximate causation and the analytically earlier but-for causation. While it’s true that FELA greatly relaxes the requirements for proximate causation, you still have to prove that but for the defendant’s negligence, the injury would not have occurred. Here, judge his words for yourself:

From this evidence, a number of possible conclusions emerge:

  • The plaintiff slipped, tripped, or stumbled in such a way that he pitched forward and fell with no opportunity to recover;
  • The plaintiff fell because he lost consciousness due to some medical episode;
  • The plaintiff was walking on the edge of the path such that the hypothetical extra width would not have helped him recover;
  • The plaintiff was not walking on the level portion of the path at all;


  • The plaintiff was positioned in the path and slipped, tripped, or stumbled in such a way that the extra inches would, in fact, have helped him recover his step and he would not have fallen.

The dissent can’t agree that the conductor’s proof met this but-for test, so it would reverse and enter final judgment for the railroad.

I’ll engage in a little barely educated guesswork here. This is the second recent case in which the presence of a senior justice may have been case-dispositive. As in last October’s decision in Quisenberry v. Huntington Ingalls Inc., Justice Goodwyn sat this one out. Back then, Senior Justice Millette furnished one of the four majority votes in what I will subjectively describe as a plaintiff-friendly ruling. Today, Senior Justice Russell does the same thing, with a similar result.

I can’t know how Justice Goodwyn would have voted if he had participated in this case, but my leaning is that he would have joined today’s dissenters. That means that in his absence, the court reaches a different result. And that, in turn, means that appellate advocates should be careful about citing this doctrine in future FELA cases. If my suspicion is correct, a future decision on this issue might well come down the other way.