        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                    FILED
                                                                   June 7, 2012

                                  No. 09-40736                     Lyle W. Cayce
                                                                        Clerk

HAROLD E. HUFFMAN,

                                            Plaintiff - Appellee
v.

UNION PACIFIC RAILROAD,

                                            Defendant - Appellant



             Appeal from the United States District Court for the
                      Eastern District of Texas, Lufkin


                 ON PETITION FOR REHEARING EN BANC


Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:


      The court having been polled at the request of one of the members of the
court, and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the
petition for rehearing en banc is DENIED.
                                      No. 09-40736

       In the en banc poll, 3 judges voted in favor of rehearing(Dennis, Elrod, and
Graves), and 12 judges voted against rehearing (Jones, King, Jolly, Davis, Garza,
Stewart, Clement, Prado, Owen, Southwick, Haynes, and Higginson).


ENTERED FOR THE COURT:




___/s/ Leslie H. Southwick
LESLIE H. SOUTHWICK
United State Circuit Judge


       Judge Smith did not participate in consideration of the rehearing en banc.




DENNIS, Circuit Judge, dissenting:
       I dissent from the court’s failure to rehear this case en banc. The panel
majority opinion improperly reverses a jury verdict of $606,000 and
impermissibly adds extra burdens to the standard of causation applicable in
cases arising under the Federal Employers Liability Act (“FELA”) and the Jones
Act1 in our circuit. The panel opinion holds that a FELA jury may not infer
directly from the evidence that the railroad’s negligence contributed to the
plaintiff’s injury unless a witness has first expressly testified that such a causal
relationship exists. This holding directly conflicts with the Supreme Court’s
decisions in CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630 (2011), and
Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957), and our decision


       1
        This holding applies to Jones Act cases because that Act adopts the FELA standard
of causation by reference. See Johnson v. Cenac Towing, Inc., 544 F.3d 296, 301 n.2 (5th Cir.
2008).

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                                        No. 09-40736

and circuit precedent in Rivera v. Union Pacific Railroad Co., 378 F.3d 502 (5th
Cir. 2004).
           In McBride and Rogers the Court held that under FELA the test of
causation of injury in a jury case is simply “whether the proofs justify with
reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought.”
McBride, 131 S. Ct. at 2636 (quoting Rogers, 352 U.S. at 506). The panel
majority opinion, by reversing the jury verdict and holding that the jury could
not draw a reasonable inference that employer negligence played a part, even
the slightest, from the expert, lay, and circumstantial evidence of record, unless
supported by a witness’s explicit testimony on causation, directly conflicts with
McBride and Rogers by imposing a standard of causation in FELA cases that is
more burdensome than the relaxed standard of causation prescribed by the
Supreme Court. Under FELA, “[t]he burden of the employee is met, and the
obligation of the employer to pay damages arises, when there is proof, even
though entirely circumstantial, from which the jury may with reason make that
inference.” Rogers, 352 U.S. at 508 (footnote omitted).2
       Furthermore, in Rivera, we followed the Supreme Court’s decision in
Lavender v. Kurn, 327 U.S. 645 (1946), in holding that “[i]n the FELA context,
when a defendant challenges the sufficiency of the evidence to support a
plaintiff’s verdict, we must affirm the denial of the defendant’s motion for
judgment as a matter of law unless there is a complete absence of probative facts
to support the conclusion reached by the jury.” Rivera, 378 F.3d at 505 (citing



       2
           “Circumstantial evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.” Rogers, 352 U.S. at 508 n.17 (citing The Robert
Edwards, 19 U.S. (6 Wheat.) 187, 190 (1821)); see also Michalic v. Cleveland Tankers, Inc., 364
U.S. 325, 330 (1960) (“[D]irect evidence of a fact is not required. Circumstantial evidence is not
only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”
(citing Rogers, 352 U.S. at 508 n.17)).

                                                3
                                  No. 09-40736

Lavender, 327 U.S. at 654). This standard clearly does not require explicit
causation witness testimony or bar the jury from drawing its own reasonable
inferences from the evidence as to whether employer negligence played any part,
however slight, in bringing about the injury. The panel majority opinion directly
conflicts with Rivera because it reverses the district court and grants a
Judgment as a Matter of Law (“JMOL”) for the railroad despite the presence of
a great quantum of probative facts and evidence that support the jury’s verdict.
 1. Fault or Breach of the Standard of Care (Conceded on Appeal by
                   the Railroad and the Panel Majority)
      “[R]easonable foreseeability of harm . . . is indeed an essential ingredient
of [FELA] negligence. The jury, therefore, must be asked, initially: Did the
carrier fai[l] to observe that degree of care which people of ordinary prudence
and sagacity would use under the same or similar circumstances[?]” McBride,
131 S. Ct. at 2643 (second alteration added) (citations omitted) (internal
quotation marks omitted). “If [employer] negligence is proved, however, and is
shown to have played any part, even the slightest, in producing the injury, then
the carrier is answerable in damages even if the extent of the [injury] or the
manner in which it occurred was not ‘[p]robable’ or ‘foreseeable.’” Id. (first
alteration added) (citation and footnote omitted) (internal quotation marks
omitted).
      In this case, the jury found and inferred directly from the evidence that the
railroad was negligent in failing to train Huffman and the railroad’s other
trainmen in ergonomically safe work methods and in failing to provide them
with safe equipment and work environments; that the railroad knew or should
have known that this negligence would result in musculoskeletal injuries to
Huffman and other trainmen; that Huffman worked under these conditions
caused by the railroad’s negligence as a trainman for 39 years; that Huffman
suffers from osteoarthritis of his knees that developed during his employment;

                                        4
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and that Huffman’s injuries were not caused by his own fault. The jury awarded
Huffman $606,000 in damages.
      On appeal, the railroad does not contest the jury’s findings and inferences
from the evidence that the railroad was negligent in failing to take precautions
against trainmen’s musculoskeletal injuries, through ergonomic training, safe
equipment and safe workplaces. Thus, these facts are now undisputed and
cannot be questioned on appeal. The majority agrees.
2. Causation: The Correct FELA Analysis Under the Supreme Court’s
                                   Decisions.
      Under FELA, the test of a jury case is simply “whether the proofs justify
with reason the conclusion that employer negligence played any part, even the
slightest, in producing the injury or death for which damages are sought.”
McBride, 131 S. Ct. at 2636 (quoting Rogers, 352 U.S. at 506). In Rogers, the
Court emphasized that “[i]t does not matter that, from the evidence, the jury
may also with reason, on grounds of probability, attribute the result to other
causes, including the employee’s contributory negligence.” 352 U.S. at 506.
“Judicial appraisal of the proofs to determine whether a jury question is
presented is narrowly limited to the single inquiry whether, with reason, the
conclusion may be drawn that negligence of the employer played any part at all
in the injury or death. Judges are to fix their sights primarily to make that
appraisal and, if that test is met, are bound to find that a case for the jury is
made out whether or not the evidence allows the jury a choice of other
probabilities. The statute expressly imposes liability upon the employer to pay
damages for injury or death due ‘in whole or in part’ to its negligence.” Id. at
506-07 (footnotes omitted).
      Furthermore, the Court in Rogers made clear that FELA “supplants [the
carriers’ common-law] duty with the far more drastic duty of paying damages for
injury or death at work due in whole or in part to the employer’s negligence.” Id.

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at 507. “[T]he inquiry in these cases today rarely presents more than the single
question whether negligence of the employer played any part, however small, in
the injury or death which is the subject of the suit. The burden of the employee
is met, and the obligation of the employer to pay damages arises, when there is
proof, even though entirely circumstantial, from which the jury may with reason
make that inference.” Id. at 508. “Circumstantial evidence is not only sufficient,
but may also be more certain, satisfying and persuasive than direct evidence.”
Id. at 508 n.17 (citing The Robert Edward, 19 U.S. (6 Wheat.) 187, 190 (1821));
see also Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960) (“[D]irect
evidence of a fact is not required. Circumstantial evidence is not only sufficient,
but may also be more certain, satisfying and persuasive than direct evidence.”
(citing Rogers, 352 U.S. at 508 n.17)).
      Finally, the Court in Rogers concluded that “[t]he Congress when adopting
the law was particularly concerned that the issues [of] whether there was
employer fault and whether that fault played any part in the injury or death of
the employee should be decided by the jury whenever fair-minded men could
reach these conclusions on the evidence [and that] by the 1939 amendments
[Congress] removed the fetters which hobbled the full play of the basic
congressional intention to leave to the fact-finding function of the jury the
decision of the primary question raised in these cases—whether employer fault
played any part in the employee’s mishap.” Id. at 508-09 (footnotes omitted).
“The decisions of this Court after the 1939 amendments teach that the Congress
vested the power of decision in these actions exclusively in the jury in all but the
infrequent cases where fair-minded jurors cannot honestly differ whether fault
of the employer played any part in the employee’s injury.” Id. at 510 (footnotes
omitted).
      Applying the foregoing principles, it is undisputed that the district court
in the present case correctly instructed the jury in accordance with the Court’s

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                                       No. 09-40736

teachings in McBride, Rogers, and its other decisions, and that the jury’s verdict
in favor of Huffman to the effect that the railroad’s negligence had played a part
in producing the osteoarthritis of his knee injuries is a verdict which fair-minded
jurors could reach based on the evidence in this case. The jury’s findings that the
railroad negligently failed to train Huffman and its other trainmen in
ergonomically safe work methods to prevent musculoskeletal injuries or to
properly equip and provide them a safe work environment are not disputed on
appeal.3 In addition, the record contains a great deal of other expert, lay and
circumstantial evidence supporting the jury’s reasonable findings that
osteoarthritis is a musculoskeletal injury or disorder; and that the railroad’s
negligence played a part, at least slightly, in bringing about and aggravating the
osteoarthritis in Huffman’s knees.
       Dr. Alan Dwaine Smith, Huffman’s treating physician testified that he
diagnosed Huffman as having osteoarthritis, also called degenerative arthritis,
in both of his knees. Dr. Smith testified that osteoarthritis is “inflammation of
the articular cartilage at a joint,” caused by external “wear and tear” on the knee
over time. He explained that knee osteoarthritis is located “in the joint space




       3
           Huffman presented evidence of Union Pacific’s negligence as follows: Huffman
presented a Union Pacific memorandum that discussed the need to implement a policy to
prevent cumulative trauma disorders—now referred to as musculoskeletal disorders—in
response to proposed OSHA ergonomic guidelines and recognized that these disorders would
be potentially compensable under FELA. Yet, as Dr. David Ramcharan, manager of Human
Factors Engineering for Union Pacific, testified, Union Pacific did not have a company-wide
ergonomics policy and had not provided wide-scale ergonomics training to its employees.
Although Union Pacific did develop two ergonomic training programs—the Pro-Back program
and the Body-in-Motion program, which focused on preventing musculoskeletal injuries in the
whole body—Huffman and his department were only shown the Pro-Back program. Huffman
also presented evidence that another railroad company provided full-body ergonomic training
to its trainmen. In addition, Dr. Richard William Bunch testified, “ergonomics would be the
science of actually redesigning the job to fit the worker . . . either by changing the equipment
or by changing the work environment.” Union Pacific took no steps to improve its equipment
or work environment in order to avoid musculoskeletal injuries in its trainmen.

                                               7
                                       No. 09-40736

between the femur and the top of the tibia.”4 Dr. Richard William Bunch, a
licensed, board-certified physical therapist and medical Ph.D., testified that
musculoskeletal disorders “mean[] . . . a whole array of problems that involve
muscle, tendon, bone, ligaments, joints, even nerves and blood vessels.” He
further testified that musculoskeletal disorders “are all mechanical-based type
injuries, it means they’re caused by mechanisms that result from either an
interruption of blood flow to tissues causing secondary changes, overuse, high[]
repetition of use, too much force, poor life style. . . . It’s when you are in one
position too long or in one posture too long or doing repetitive work too long
without allowing tissues time to recover is when we run into the problems. And
that reaction to those stress factors varies among individuals.” This expert
testimony is clearly sufficient evidence from which a fair minded jury could
reasonably infer that the knee is a joint; that osteoarthritis of the knee is a joint
injury caused by “wear and tear” such as that involved in trainmen work; that
osteoarthritis is therefore a musculoskeletal injury or disorder; that Union
Pacific’s negligent failure to train its trainmen in how to avoid musculoskeletal
injuries by performing their duties ergonomically safely and the railroad’s
failure to provide safe equipment and work environments for that purpose
unduly increased trainmen’s risks of incurring musculoskeletal disorders; and
that, accordingly, Union Pacific’s negligent failure to train its trainmen in
ergonomics or provide safe equipment and work environments, played a part in
causing or contributing to Huffman’s osteoarthritis of the knees.
       Dr. Smith also testified that osteoarthritis is distinguishable from other
forms of arthritis. He testified that rheumatoid arthritis is caused by an


       4
         It is well known that a “knee” is “a joint in the middle part of the human leg that is
the articulation between the femur, tibia, and patella.” Merriam-Webster’s Collegiate
Dictionary 690 (11th ed. 2007) (emphasis added); see also 7 Oxford English Dictionary 485 (2d
ed. 1989) (“The [knee is the] joint, or region about the joint, between the thigh and the lower
leg.”).

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                                   No. 09-40736

autoimmune disorder, and that gouty arthritis is caused by a build up of uric
acid in the synovial fluid of the joint. In contrast, he explained, osteoarthritis is
a wear and tear injury. Dr. Smith testified that osteoarthritis is a “progressive
problem” that is incurable and worsens over time.
      Dr. Robert Owen Andres, an ergonomic expert and consultant, testified
that Huffman’s trainman activities in throwing switches and coupling air hoses
exposed his lower limbs to ergonomic risk factors, including squatting, kneeling,
lifting, carrying, climbing, and walking on uneven surfaces. Dr. Andres testified
that trainmen are often taught to lift with their legs rather than their back,
which shifts stress to the lower extremities.
      Huffman testified to the rigorous work that he performed as a trainman:
walking on ballast entire lengths trains and back, covering up to 16,000–18,000
feet, over 3 miles; jumping off moving trains onto large, sloped ballast and
running ahead to line switches; throwing poorly maintained switches into
position that placed great stress on his lower extremities; climbing individual
cars of trains to set or release hand brakes; connecting and disconnecting train
cars; and locating and replacing broken car couplings, which weighed 50 to 83
pounds, without assistance.
      Applying the principles laid down by the Supreme Court’s decisions in
McBride, Rogers, and other cases, it is clear that the expert testimony, lay
testimony, including that of Huffman, and the circumstantial evidence described
above provided a sufficient basis from which the jury could reasonably infer or
find that the railroad’s negligence played a part in bringing about Huffman’s
knee osteoarthritis. Contrary to the panel majority opinion’s mistaken view, in
FELA cases, there is no requirement that the plaintiff must present explicit
witness testimony as to causation of injury before the jury may reasonably infer
or find that employer negligence played any part, no matter how small, in
bringing about the injury or death for which damages are sought. In fact the


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Supreme Court has specifically held that “direct evidence of a fact is not
required” and that “[c]ircumstantial evidence is not only sufficient, but may also
be more certain, satisfying and persuasive that direct evidence.” Michalic, 364
U.S. at 330 (quoting Rogers, 352 U.S. at 508 n.17).


     3. The Correct Causation Analysis Under the Fifth Circuit’s
                                  Precedents
      In Rivera, 378 F.3d 502, we held that, “[i]n the FELA context, when a
defendant challenges the sufficiency of the evidence to support a plaintiff’s
verdict, we must affirm the denial of the defendant’s motion for judgment as a
matter of law unless there is a complete absence of probative facts to support the
conclusion reached by the jury.” Id. at 505 (citing Lavender, 327 U.S at 654;
Wooden v. Missouri Pac. R.R. Co., 862 F.2d 560, 561 (5th Cir. 1989); Davis v.
Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir. 1994); and Lane v. R.A. Sims, 241 F.3d
439, 445 (5th Cir. 2001)). From the foregoing analysis, it is clear that there was
not a complete absence of probative factual evidence on the issue of
causation—as there must be to set aside a plaintiff’s jury verdict in a FELA case.
Accordingly, it is clear that the panel majority opinion is wrong in reversing the
district court’s judgment based upon the jury verdict and in granting a JMOL for
the railroad.
 4. The Panel Majority Opinion Directly Conflicts with the Supreme
      Court and Fifth Circuit FELA Causation Decisions
      The panel majority opinion recites parts of the test of a jury case set forth
by the Supreme Court in McBride and Rogers, but at no point does it undertake
a sustained effort to apply that test to the evidence and determine whether the
proofs justify with reason the jury’s conclusion that the railroad’s negligence
played a part in producing the injury for which damages are sought. Nowhere
does the majority opinion simply ask and answer whether the jury reasonably

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could have inferred from the totality of the evidence that the railroad’s conceded
negligent failure to provide ergonomic training, safe equipment, and safe work
places, played any part, even the slightest, in producing Huffman’s knee
osteoarthritis. Nor does the panel opinion seem mindful that it does not matter
that, from the evidence, the jury might also with reason have attributed the
result to other causes, including the wear and stress of the natural aging
process. Indeed, the majority’s judicial appraisal of whether a jury question was
presented does not appear to be narrowly limited to the single question whether,
with reason, the conclusion may be drawn that negligence of the employer
played any part at all in Huffman’s injury or disorder.
      Similar to the lower court opinion in Rogers, the majority panel opinion
here may be read as basing its reversal of the jury verdict on the ground that it
appeared to the majority that the natural process of aging and disease was at
least as probable a cause for Huffman’s knee osteoarthritis as any negligence of
the railroad, and that in such case there was no case for the jury. Cf. Rogers, 352
U.S. at 505. But that reasoning clearly conflicts with FELA, which renders
railroads liable for employees’ injuries or deaths “resulting in whole or in part
from [carrier] negligence,” 45 U.S.C. § 52, and with the Supreme Court’s
holdings that “[u]nder [FELA] the test of a jury case is simply whether the proofs
justify with reason the conclusion that employer negligence played any part,
even the slightest, in producing the injury or death for which damages are
sought.” Rogers, 352 U.S. at 506; see also Consolidated Rail Corp. v. Gottshall,
512 U.S. 532, 543 (1994).
      The majority opinion concludes that without the support of explicit
testimony by a witness to a causal relationship between the railroad’s negligence
and Huffman’s injuries, the jury’s verdict is no more than a guess and cannot
qualify as a reasonable inference by fair-minded persons applying the district
court’s instructions to the evidence. If the Supreme Court has taught anything

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in its FELA cases, however, it is that jury verdicts should not be dismissed as
guesses or speculation if there is any reasonable basis for them in the record. As
early as Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29 (1944), the Court found
that the “focal point of judicial review is the reasonableness of the particular
inference or conclusion drawn by the jury. It is the jury, not the court, which is
the fact-finding body.” Id. at 35. As noted above, in Rogers the Court emphasized
that “the burden . . . is met, and the obligation . . . to pay damages arises, when
there is proof, even though entirely circumstantial, from which the jury may
with reason make that inference.” Rogers, 352 U.S. at 508. Likewise, in
Lavender, the Court re-instated a verdict based on evidence that had been
characterized in the state court as “mere speculation and conjecture” and based
on a theory of negligence that was “physically and mathematically impossible,”
stating “[i]t is no answer to say that the jury’s verdict involved speculation and
conjecture. Whenever facts are in dispute or the evidence is such that
fair-minded men may draw different inferences, a measure of speculation and
conjecture is required on the part of those whose duty it is to settle the dispute
by choosing what seems to them to be the most reasonable inference. Only when
there is a complete absence of probative facts to support the conclusion reached
does a reversible error appear.” Lavender, 327 U.S. at 653; see also Gallick v.
Baltimore & Ohio R.R. Co., 372 U.S. 108 (1963) (setting aside the lower court’s
reversal of a jury verdict as “a series of guesses and speculations” as an invasion
of the jury’s province where a bug bite near a fetid pool led to amputation of
employee’s legs). In Lavender and Gallick, the evidence was much thinner than
that here.
      Instead of adhering to the Supreme Court’s precedent and precedent from
this circuit, the majority panel opinion is preoccupied with finding ways in
which, in its opinion, the evidence presented by the plaintiff could have been
clearer or more persuasive. Thus, the majority complains that no witness

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presented testimony explicitly “listing osteoarthritis in the knees as a
musculoskeletal disorder that could result from performing trainmen activities,”
Op. at 22, and stated that “[a]t 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.’” Id. As the Court has
admonished, however, “[i]t is not the function of a court to search the record for
conflicting circumstantial evidence in order to take the case away from the jury
on a theory that the proof gives equal support to inconsistent and uncertain
inferences. The focal point of judicial review is the reasonableness of the
particular inference or conclusion drawn by the jury. It is the jury, not the court,
which is the fact-finding body. It weighs the contradictory evidence and
inferences, judges the credibility of witnesses, receives expert instructions, and
draws the ultimate conclusion as to the facts. The very essence of its function is
to select from among conflicting inferences and conclusions that which it
considers most reasonable.” Gallick, 372 U.S. at 114-115.
      Consequently, the panel majority opinion purports to create a precedent,
rule of decision, and causation of injury standard that directly conflicts with
Supreme Court and Fifth Circuit precedents, and which requires en banc review
and correction. Under the Federal Rules of Appellate Procedure, an en banc
hearing should be ordered when “en banc consideration is necessary to secure or
maintain uniformity of the court’s decisions” or where “the proceeding involves
a question of exceptional importance.” Fed. R. App. P. 35. Our court’s Internal
Operating Procedures state that rehearing en banc is for cases that involve “an
error of exceptional public importance or an opinion that directly conflicts with
prior Supreme Court, Fifth Circuit or state law precedent.” This case clearly
meets all those qualifications. The majority opinion directly contradicts Supreme

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Court and Fifth Circuit precedent, and will disrupt the uniformity of the
standard of causation applied in jury instructions, jury trials, and post-verdict
motions in FELA and Jones Act cases. This case also clearly presents an issue
of exceptional public importance.
      For these reasons, I dissent from the decision to deny en banc rehearing.




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