The Pennsylvania Rule - Shifting the Burden of Proof in Jones Act Cases

December 2004

The August 2004 ruling by the Second Circuit Court of Appeals in Wills v. Amerada Hess Corp. has recently attracted some headlines by addressing this issue - is the Pennsylvania Rule applicable to Jones Act personal injury suits?

Where a vessel is in violation of a statutory regulation, the Pennsylvania Rule shifts the burden of proof of causation; In such cases it is for the defendant to establish that violation was not the cause of the harm in respect of which the suit is being prosecuted by the plaintiff*. It is most widely applied in collision cases. Recently, however, personal injury plaintiffs have sought to apply the Pennsylvania Rule within to Jones Act cases. In addition to shifting the burden of proof on causation to the defendant, where the vessel owner is held to be in violation of statute and where that violation is held to be the cause of the Jones Act employee's injury/illness, the Pennsylvania Rule dictates that the vessel owner defendant is thereafter strictly liable and cannot plead contributory negligence as an assertive defence.

In Wills, Patricia Wills (individually and as personal representative of her husband's estate) brought suit against Amerada Hess Corp. et al alleging that her husband's illness and death from cancer complications at age 39 was attributable to the vessel owner's breach of OSHA** regulations. Wills claimed that the owners had caused toxic emissions and had failed to protect her husband from harmful benzene and polycyclic aromatic hydrocarbons during his work aboard.

Wills asserted that the breach of OSHA regulations required the defendants, by virtue of the Pennsylvania Rule, to prove that the toxic emissions could not have been the source of her husband's illness and eventual death. The district court disagreed and granted summary judgement in favour of the defendants. Upon review, the Second Circuit Court of Appeals affirmed the district court's ruling on the basis of plaintiff having failed to establish the causal nexus necessary to relate the onset of her husband's cancer to exposure to toxins aboard the vessel. In doing so they offered some interesting insights into the application of the Pennsylvania Rule to the Jones Act, as well as evidentiary standards required under Daubert v. Merrell Dow Pharm. Inc.

The Second Circuit Court acknowledged their previous ruling in Wilkins v. American Export Isbrandtsen Lines (1971) in which they stated that the Pennsylvania Rule "should not be extended beyond the chosen area of ship collisions to embrace Jones Act cases". Within their review of Wills they then admitted that "in the years since we decided Wilkins, some courts have applied the Pennsylvania Rule in Jones Act cases". They specifically refer to their own decision in In Re Seaboard Shipping Corp. (also 1971) in which they applied the Pennsylvania Rule to a case involving maritime death resulting from an improperly performed tow***. The Court then clarified that it's rejection of the Pennsylvania Rule in Wills was premised on plaintiff failing to meet her evidentiary standards; Before the burden of proof could shift and require owners to prove that Wills' husband's cancer could not have been related to his service aboard the vessel, the Court first required that Wills establish that exposure to toxins is causative of cancer. Examining the district's court's interpretation of Daubert, they affirmed the district court's ruling on defendant's summary judgment motion, and found that the district court had acted properly in disqualifying plaintiff's expert medical testimony on the subject of causal nexus. The Court held that Wills had failed to accomplish this nexus via her expert testimony and on this basis rejected plaintiff's request that the vessel owner be subject to Pennsylvania Rule standards.

Some commentators have stated that the Second Circuit has thus rejected the Pennsylvania Rule from application in Jones Act suits, however, to adopt such a broad brush approach is misguided. The Court acknowledged that since 1971 there have been occasions where the Jones Act and the Pennsylvania Rule have come together. It did not imply that such occasions will not recur. Therefore, Wills should not be construed as a precedent that separates the Jones Act and the Pennsylvania Rule in all cases. Rather, the Court will focus on the plaintiff's evidentiary standards where he wishes to invoke the Pennsylvania Rule, particularly in claims resulting from toxic tort.

 

* defendants need to show "not merely that [their] fault might not have been one of the causes [of the injury], or that it probably was not, but that it could not have been." The Pennsylvania.

** OSHA - Occupational Safety and Health Administration

***NB the plaintiff in that case was a fellow vessel owner seeking exoneration from sums he had jointly paid to two drowned bargemen.