TORTS / Injured worker’s claim against his railroad employer for “failing to provide a reasonably safe place to work pursuant to FELA” – claimed jury instructions not consistent with federal FELA standard. Holding #1: Federal FELA law – not Kentucky law – sets “substantive” standard of what has to be proven; Holding #2: Kentucky law – not federal FELA law – sets “procedural” standard of how jury instructions communicate substantive standard to the 12 non-lawyers who will decide the facts.

Cooke v. CSX Transportation, Inc., 2012 WL 6061717 (Court of Appeals of Kentucky, December 7, 2012. Free copy available here.

Who is affected? Railroads and their employees subject to the Federal Employer Liability Act (FELA).

Two major points:

1. “Substantive” standard of proof is set by federal FELA law. Most recently as enunciated by the U.S. Supreme Court in CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630 (2011).

Free copy of U.S. Supreme Court opinion in CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630 (2011) here.

“[FELA] does not incorporate “proximate cause” standards developed in nonstatutory common-law tort actions. The charge proper in FELA cases, we hold, simply tracks the language Congress employed, informing juries that a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury.”

2. Exactly how that substantive standard of proof is expressed in the context of jury instructions in the Kentucky state court system is a matter of “procedural” law:

“The purpose of instructing a jury is to guide jurors in applying the law correctly to the facts in evidence. Pattern jury instructions used in FELA cases tried in federal court tend to be lengthy and detailed. Kentucky state courts take a “bare bones” approach to jury instructions, however, leaving it to counsel to assure in closing arguments that the jury understands what the instructions do and do not mean. A proper instruction correctly advises the jury ‘what it must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof’ on that issue. Regardless of what form jury instructions take, they must state the applicable law correctly and neither confuse nor mislead jurors. A trial court has a duty to give a correct instruction when a party offers an erroneous or misleading instruction on a proper issue. [Footnotes omitted.]

“The FELA preempts all state law concerning an interstate railroad’s liability for an employee’s death or personal injury due to the railroad’s negligence. Thus, the substantive law that governs a FELA action is federal, regardless of whether it is brought in state or federal court. Federal decisional law governs what constitutes negligence in a FELA claim and requires a plaintiff to prove the traditional common-law elements of negligence, including duty, breach, foreseeability, causation, and injury in order to prevail. Federal law also governs the parties’ burden of proof on the merits; the sufficiency of the evidence; the substantive law required in instructions, and the proper measure of damages, including the prohibition against prejudgment interest and the requirement that future damages be reduced to present value and measured in after-tax dollars.

“The law of the forum governs procedural matters when a FELA claim is tried in state court. Thus, state and local rules concerning pleading, verdicts, the form of jury instructions, admissibility of evidence, reviewability of damages for excessiveness, and other procedures generally govern FELA claims unless their application is found to diminish, destroy, or interfere with a right or obligation created by the FELA. The cases indicate and the Supreme Court acknowledges that formulating a clear rule to distinguish what is procedural from what is substantive is impossible.”