–Five justices address only the question of standard for causation, although in doing so they have to distinguish between that issue and the issue of comparative negligence and push the traditional employee-favorable FELA concerns onto the negligence side, untouched.

–One justice sees the word “proximate” as merely confusing the issue of causation, but a strong view of employee-favorability.

–It is not clear why the three other justices concur, perhaps they don’t like the cites to lower courts and pattern jury instructions. But despite the assertion of the one that nothing to the contrary appears in their opinion, it seems to see little place for employee-favorability to act.

Did the Court really take cert in the first place just to correct a unique-to-Missouri jury instruction issue? Probably not. More likely, the case appeared to depend on the employee-favorability aspect of FELA. Was the Roberts opinion only a trick solution to prevent a decision that would place his Court on the pro-/anti-business axis? Would a little less restraint have produced a more useful opinion?

Roger Friedman