IN TI

FRANCIS BAT'I'AGLIA,

Appellee,

E SUPREME COURT OF OHIO

v,

CONSOLIDATED RAIL CORPORATION,

Appellant.

Supreme Court Case No. 09-2148

On Appeal from the Lucas CountyCourt of Appeals, Sixth AppellateDistrict Case No. L-08-1332

MEMORANDUM OF APPELLEE FRANCIS BATTAGLIA IN OPPOSITION TOAPPELLANT CONSOLIDATED RAIL CORPORATION'S MOT'ION FOR

RECONSIDERATION

F.J. Leizerman (0011300)

Michael Jay Leizerman (0063945)E.J. LGIZERMAN & ASSOCIATES, LLC

717 Madison Avenue

Toledo. Ohio 43624(419) 243-1010/Fax: (419) 243-8200tonipleizerlnan.com

Charles R. Saxbe (0021952)Donald C. Brey (0021965)CHESTER, WILLCOX & SAXBE LLP65 East State Street, Suite 1000Columbus, Ohio 432q 5(614) 221-4000/Fax: (614) 221-4012rsaxbe@cwslaw.com; dbl-ey@cwslaw.com

Larry H. 7arnes (0021773)Audrew G. Douglas (0000006)CRABBF,, BROWN & JAMES LLP500 South Front Street, Suite 1200Columbus, Ohio 43215(614) 228-5511 /Fax: (614) 229-4559ljames@cbjlawyers.com; adouglas a,cbjlawyers.eotn

David A. Damico (0056053)BURNES, WHITE & HICK"1'ON, LLCFour Northshore Center106 Isabella StrectPittsburgh, PA 15212(412) 995-3000/Fax: (412) 995-3000dadamico@bwhllc.com

Colleen A. Mountcastle (0069588)GALLAGHER SHARPSixth Flooi-- Bulkley BuildingClevelancl, Ohio 44115(216)241-5310/Fax:(216)241-1608emountcastle@gallaghersharp.com

COIJNSEL FOR APPELLANT,CONSOLIDATED RAIL CORPORATION

COUNSEL FOR APPELLEE,FRANCIS BATTAGLIA

INTRODUCTION

Appellant Consolidated Rail Corporation's ("Conrail's") Motion ior Reconsideration

conslihttes little tnore than a reargument of the case. Thus, Appellee Francis Battaglia's

Memorandcun Opposing Jurisdiction also could setve as a response to Appellant Conrail's Motion

for Reconsideration. As Appellee Battaglia explained, in greater detail, in his Memorandum

Opposing Jurisdietion: "This case involves merely the application of settled 1aw lo the particular

facts of the discrete claims set forth in the ease below. There is nothing about this matter that is of

public or great general interest, and Appellant makes no claim that this case involves any substantial

constitutional question."

It is well settled that this court will not render advisory opinions or address propositions not

raised in the court of appeals. Stale ex rel. Scavyer v. Cendroski (2008),118 Ohio St.3d 50;13ancohio

Nat. Bankv_ Rubicon Cadillac, Inc. (1984), 11 Ohio St.3d 32; Egan. v. Nalioncd Distillers & Chetn.

Corp. (1986), 25 Ohio St.3d 176. It is equally well settled that the reconsideration procedure set

fortlr in S. Ct. Prac. Rule Xl is clesigned for those veiy limited instances where the court believes, in

retrospect, that a mistake has been made. Accord, State ex rel. Huebner v. W. Jefferson Village

Counsel (1995), 75 Ohio St.3d 381, 383. This is not one of those rare instances. Notwithstanding

the Appellant Conrail's acknowledgment that S. Ct. Prac. Rule XI(2)(A) proseribes reargument of

the issues raiscd iti the Meniorandum in Support of Jurisdiction and the Opposition thereto, that is

precisely what Conrail has done. The use of verbal intensifiers such as "staggering implications" and

"profound impiications'"(sce pages 2 and 3 of the Motion (c,r Reconsideration) and characterizing the

reargument as "only [an emphasis off the significant legal concerns" (p. 1 of Motion for

Reconsideration) does not tratrsform a reargument into a tnotion that is in compliance with S. Ct.

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Prac. R. XI (2)(A). Indeed, the very first sentence of the Memorandum in Support of Jurisdiction

expresses the ulijustified fear that the issue in this case °will have a signi ticant impact on the future

of railroad litigation." Conrail has filed motions for reconsideration at the trial level, at the court of

appeals level and now witll this court. In each case, as the Court of Appeals stated in its November

6, 2009, Decision denying Conrail's motion for reconsideration before that court, "Appellant

[Conraill has reiterated most, if not all, o f the arguments it raised on appeal, yet it has not called our

attention to any obvious errors or raised issues we lhiled to consider". Appellant Conrail's most.

recent motion for reconsideration should be rejected for the same reasons.

Further, much of this Motion for Reconsideration is devoted to attacking Appellee's

arguments made in the Memorandum Opposing Jurisdiction. In that regard, this motiou is inuch

more the equivalcnt of a rebuttal brief and, as such, should be summarily rejected by this Court.

In addition, it would appear that the railroad is attempting to inject an entirely new issue into

the case - the issue of statutory interpretation. This issue was never raised or addrossed in either the

court of appeals or in the Memorandum in Support of Jurisdiction. Indeed, there was good reason for

Conrail not to make an issue of statutory interpretation since the statute at issue is clear on its 1ace. It

is respectfully submitted that the Court sllould declnze to reverse its decision not to accept the case.

ARGUMENT

A. THE S1X't'H DISTRICT DID No'I' MISINTERPRET 49 C.F.R. §229.43; APPELLANT MERELY

REITERATES I1'S PREVIOUS ERRI)NEOUS ARGUIFIENT REGARDING SAID REG ULATtON

"Misinterpretation" of the federal regulation has been a constant theme of the appellant

throughout this litigation. It was made in its post trial motions. It was made in the court of appeals.

And it was made in its Memorandum in Suppor-t of Jurisdiction. Notably, this argunlent lras been

rejected in each and every instance because it ignores the facts that were adduced below.

Reading Appellant's present argument regarding the Sixth District's application of 49 C.F.R.

§229.43(a), it slrould becoine apparentthat it is little-more than a reiteration of the same crroneous

argument it nlade in Propositiou of Law No. I of its Memorandum in Support of Jurisdiction. As the

Court reviews the Railroad's argument it should readily be able to conipare the corresponding

portions from the Memorandum in Support of Jurisdiction with its Motion for Reconsideration,

beginning as early as page three.

With the exception of the first word and final sentence, the first paragraph of page thtroe of

the Motion for Reconsideration is otherwise identical to the last paragraph on page seven of the

Metnorandum in Support of Jui-isdiction, reading:

"The language of the regulation does tiot support the Court ofAppeals' decision. Rather, it states that exhaust must be releasedoutside of the cab and prescribes a means, namely sufficient stackheiglit, to ensure the railroad's employees are protected adequately.Nowhere does §229.43 state that exhaust properly released from thelocomotive can never enter into the cab. Similarly, thcre is nolanguage indicating that the mere presence of exhaust in the cabconstitutes a violation of the regulation. 1'o the contraiy, the FRA hasinterpreted § 229.43, and its predecessors, to recognize that someproducts of diesel combustion will enter locomotive cabs withoutviolating the LIA." (Memorandum in Support of Jurisdiction at 7)

Conrail continaes to restate its argument made in Support of Jurisdiction in the second

paragraph on page three of the Motion for Reconsideration. This paragi-aph is little more than a

condensed i°enditioti ofthe argurnents proffered by Appellant Conrail on pages eight ar:d nine of its

Memorandum in Support of Jurisdiction. It concludes both the first argLmlcnt in the Motion (or

Reconsideration and the first Proposition of law in the Memorandum in Support ofJurisdiction with

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the same flawed atgument that ". ..[I]f tlie Sixth District's decision is permitted to stand, there is no

way that a railroad could ever be in compliance with §229.43 ..." (Appellant's Memoraudum in

Support of Jurisdiction at 10; Appellant's Motion for Reconsideration at 5)

Notwithstanding the inipropriety of using a motion for reconsideration as an opportunity to

rehash old argutnents and introduce new ones, Appeliant's arguments suggesting that the Sixtl-i

District misinterpreted or misapplied § 229.43(a) are fundamentally flawed insofar as thcy

misrepresent the factual nature of the issue. What the appellant is attempting to do is deflect this

court's attention away from the facts adduced at trial. The railroad wants this court to consider the

issue as being "how much" diesel exhaust was entering the cabs, as opposed to the i-ea1 issuc of

"where did it come from" or "how did it get there?" This court should not (all into this trap. No

other court, state or federal, has been willing to accept the railroad's proposition. This court should

not become the first.

49 C.F.R. §229.43 provides in relevant part that "[p]roducts ofcombustion shall be releasecl

entirely outside the cab and other compartments." (emphasis supplied). The uncontradicted

record below establishes that the conditions of the locomotivcs used by Battaglia were in clear and

objective violation of 49 C.F.R. § 229.43. Diesel exhaust never even made it up the stacks where it

could be released into the air. 'the issue of "how much" was never the issue in the court below. Nor

should this be the issue, according to evety federal circuit court of appeals, including the Sixth

Circuit, that has considered the issue. In Hardyrnan v. NorfoZlc & W. Ry. Co. (6"' Cir. 2001), 243 F3d

255, 265, the Sixth Circuit heid, inter alia:

We further recognize that it makes little sense to require a plainti ff toestablish a dose/response relationship or tln•eshold level in a situationwhere there has been no scientific study conducted specifically on

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railroad brakemen and where the dose/respon.se relationship orthreshold level will always vary ftom individuatto individual. Such arequirement essentially would foreclose plaintiffs from t-ecovering forI an inj ury] against negligent employers unless their pai-Cicular job hasbeen the subject of a national, epidemiologicat study on [that nijury].

The evidence adduced at tlie summaryjudgment stage via the deposition of Mr. Battaglia and

the affidavit of a long tinie locomotive engineer and union official was that Mr. Battaglia had been

exposed to diesel exhaust from the cornmencement of his enployment with the raih-oad. In his

dcposition, he described it as "blue smoke" and "black diesel oil" entering the locomotive cabs

through holes in the floors, cracks in the doors, in the seals, through the windows, and through the

electrical compartment before it could even reach the "stacks." IIe could smeli it. Hc eoulct taste

it. Jim Kertnans, testifying by means ofAffidavit avered that "the locomotives which we were

reqrdred to operate wererarely maintained properly caasing toxic diesel exhaust fumes to come into

the cab through the firewalls; electrical cabinets; and even cracks in the floor." IIe and other

engineets had to carry duct tape with them to create a seal. Appellant Conrail produced no evidence

to the contrary. Rather, it presents this coru-t with a bizarre hypothetical situation, hoping lirr what

amounts to an advisory opinion.

The uurebutted facts of this were recognized by the Sixth District Court of Appeals in

finding a clear vioiation of § 229.43(a). Com-ail's Motion for Reconsideration appears to

aclcnowledge that it violated the regulation. Conrail merely claims that cotnpliance was

"inlpossible'. IIowever, the facts of this case show that the Sixth District's decision does not result

in an interpreiation of the regulation which is iuzpossible to conipiy with. The pa:pose of §

229.43(a) is to codify the duty of railroads to maintain their locomotives in suCticiently operable

condition so as to preclucle diesel exhaust froni being released directly into the cab. As has been

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previously said, the lower courts properly found that the only evidence offered in this case

established that Conrail failed in its duty to so maintain its locomotives.

Contraiy tci the stricture ofreargument set forth inS. Ct. Prac. Rule XI, Conrail has sought to

uitroduce an entirely new issue into this case, namely the issue of statutory eonstruction. At no point

in either the trial court or court of appeals, nor in its Memorandum in Support oP.[urisdiction, has

Com-ail ever prescnted this argument.

A Motion ['or Reconsideration is not the time to assert and argue new issues. Suffice it to

say, this Court has repeatedly held that if the meaning of a statute (or regulation) is unambiguous, it

is to be applied as written without further interpretation. See, e.g., State ex reL ,Savarese v. Buckeye

LocalSchoolDist.Bd.of'Ed. (1996),74OhioSt.3d543,545. Thefirstportionof49C.F.R.§229.43

states that "[p]roducts ol' combustion shall be released entirely outside the cab and other

compartments." (Etnphasis supplied) Both the trial court and the court of appeals found this

lang .iage to be clear, objective and unambiguous, requiring no further interpretation. Yet, Conrail

wants this Court to ignore the fact that the diesel exhaust never even reached the stacks, as required

by federal regulation, and as established by the deposition testimony of Mr. Battagfia. and allidavit of

Jim Kermans. (See, Memorandum Opposing Jurisdiction, pp. 5-7)

This court caarnot deal in hypotheticals. Conrail claims dire consequences to the railroad

industry if the regulation is interpi-eted to prohibit any diesel exhaust from entering the cab. Yet,

quantitative standards is not the test. See, e.g., Best v. Lowe's Home Center• (6'" Cir. 2009), 563 I'.3d

171; Goebel v. Denver & Rio Grande 'vh. R. Co. ( i fit" Cir. 2063), 348 F.3d 987; Ha+°dy:riarr v. Noifolk

& W. Ry. Co. (6"' Cir. 2001), 243 F.3d 255; fT'e.stberry v. Gislavid Gummi dB (4°i Cir. 1999), 178

F.3d 257.

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Rewriting the current regulations as requestecl by Conrail would effectively disregard the

plain language of the regulation to protect the railroad's financial self interest at the expense of its

employees' liealth and safety. If there are any "staggering implications" in this case, it would be the

acceptance of the railroad's argument. To do so would run contra to Har•ctyrnan F'. Nor folk & W. Ry.

Co., supr•a, establishing the rule of differential diagnosis as opposed to dose/response, ancl would

realistically preclude any railroad employee from ever proving his case. (See, Memorandum

Opposing Jurisdiction at 8)

B. TllL PROPER STANDARD FOR ASSESSING LIABIIdTY UNDER TRE LIA IS WELL SETTLED

AND DOI'sS NOT PRESEN'r ANY IMPORTANT ORRECURRING ISSUE.

Conrail's argument relative to Part B of its Motion for Reconsideration is also little more

than a reiteration of the argument found in its Memorandum in Support ofJurisdiction. Indeed, even

the caption of Part B in the Motion for Reconsideration (page 5 thereof) is taken verbatim lroin the

first sentence of Proposition of Law No. I of the Mcmorandum in Support of Jurisdiction: "The

proper standard for assessing liability under the LIA presents an important and recurring issue that

warrants this Court's review." (Page 6 thereof) Conrail has, in effect, condensed its argument found

on page six of the memorandum in Support of Jurisdiction, and resubmitted it to the Court as the last

paragraph on page tive of the Motion for Reconsideration.

Fui-thermore, the last paragraph on page six of the Motion does nothing more than reiterate

the factually niisleading argument made in the first paragraph on page ten of the Memorandum in

Support of.hvisdiction, erroneously asserting that Battaglia's otily evidence on summaryjudgment

in support of a violation of the Locoinotive Inspection Act was a "self-serving affidavit." While

theoretically Plaintiff's sworn testimony could have properly been an affidavit, in reality what the

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trial Court relied upon was Mr. Battaglia's lengthy deposition. Further, the trial court also had hefore

it the afficlavit of James Kermans. Last, aud most glaringly, Conrail refuses to acknowledge in this

Court that it allowed the swoni deposition ancl sworn affidavit regarding diesel exhaust not going up

the staclc, but emanating directly into the locomotive cab to go unrebutted,

The contentions advanced by the Appellant are thus the satne complaints it has made

throughout this case. The "wrinhle" now is tlrat Conrail claims there is a c.onflict among a nutnber of

courts of appeal which should be resolvect by this Court. (See Motion for Reconsideration at 5-6)

Conrail has already made this argument in its Memorandum in Support of Jurisdiction at page I,

wherein it cites to both Hager v. Norfolk & W. Ry. Co. (8"' llist. 2006), 2006 WI33634373, atid to

Shesler v. Consolidated Rail Corp. (2003), 151 Ohio App.3d 462. Mr. Battaglia can only repeat

what he said in his Memorandum Opposing Jurisdiction. Thcre is no conflict. I£anything, Shesler

(like ILager) supports Appellee Battaglia's position. If Conrail truly believed there was a conflict, it

should have moved in the coLItt of appeals to have the case certified for conflict. It did not do so.

Coiirail turther reiterates its meritless contention (commencing on Page 6 of' the

Memorandum in Support ol'Jurisdietion) that Battaglia was required to prove a "specific defect" in

order to prevail on his LIA claim. Again at the risk of repeating what was said at pages 7-8 of the

Memorandum Opposing Jurisdiction, in the years since the railroad's principal authority, Didinger v.

Penn.sylvania R. Co. (6"' Cir. 1930), 39 F.2d 798, the United States Supreme Court has held it is not

necessary to prove a specific defect in order to prevail under the Safety Applianec Act. Myers v.

Reading Co. (1947), 33 i U.S. 477. Under Vance v. Consolidated Rad Corp. (1995), 73Ohio St.3d

222, this U.S. Supreme Court precectent must be followed by this Court.

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Finally, (lie Court will recall that Conrail's argunient revolves around the granting of a

motion for partial summary judgment filed by Mr. Battaglia. Its contention, on page 6 oflhe Mofion

for Reconsideration, to the effect that it is error for a court to rule that aplainti ff necd only present a

self-serving affidavit to prevail on a motion for summary judgment, sorely misses the mark. Again,

this is a gross miseharacterization of the record below. At the summary judgment stage, the Irial

coui-t had before it Mr. Battaglia's deposition and a sworn affidavit of another railroad engincer and

mion official, detailing the conditions in the locomotive cabs. '1'he railroad, on the other hand, even

though it was permitted to file a sur-reply and an amended sur-reply to the summaiy judgrnent

n)otion, produced nothing to rebut those facts and ercate a genuine issue of material fact. It

now disingenuously and subtly secks to change the face of Ohio swnmary judgment law by having

this court permit a party to prevail on summary judgment without countering the Pacts regarding

Coiirail locoarnotives in the Detroit Terminal area.1

C. TIIE ISSUE REGARDING TIIE, PROPER STANDARD OF CAUSATION IN FELA CASES WAS

NEVER RAISED BELOW ANI) SHOULD BF DEEMED WAIVED; lVo'rWITHSTANDING, Tllb:

PROPER STANDARD HAS BF,EN CLEAR SINCE ROGERS V. MISSOUR7PAC. R. Co. (19$7),352

U.S. 500, WI11CD REMAINS T11E BENCHMARK

Once again, the Appellant Conrail has belatedly suggested a conllict among the courts of

appeal of this State. And once again, the question that may be fairly asked is why didn't Conrail

tnove to certify the issue? Quite clearly, it could not move to certify this issue for conflict because

there never was aizy conflict.2 Beyond that, the argument advanced is identical to that already

"1'his is not one of those rare cases where the moving parLy has utterly failed to show theabsence of a gentiune issue of malerial fact. Mr. Battaglia did so, and the burden then shifted to the

railroad, who failed to meet its burden.

2 Significantly, the issue ofproximate cause was never raised at any stage below, prior to itsassertion as Proposition of Law No. 2 in the Memorandum in Support of Jurisdiction.

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rejected by the maj ority of the court in decliningj ruisdiction in the first place. (See, Memorandum in

Support of Jurisdiction, Proposition of Law No. 2, and Battaglia's Memoi-andum Opposing

Jurisdiction, commencing at page 9)

It bears repeating that the issue ofproximate cause was never raised in the court of appeals

and is not properly before this court. Clearly, this court should not render an advisory opinion or

address a proposition not raised in the court of appeals. See, e.g., S[a[e ex r•el. Sawver v. Cendroski

(2008),118 Ohio St.3d 50; Bancohio Nat. Brmk v. Rubicon Cadillac, Inc. (1984), 11 Ohio St.3d 32;

Fgan v. National Distillers & Cl:em. Corp. (1986), 25 Ohio St.3d 176.

As it did in its Memorandum In Support of Jurisdiction (page 11), Conrail repeats its claim

that the "correct" standard of proximate cause in FELA cases is set forth in this Court's decision in

Reed v. Pennsylvania R. Co. (1961), 171 Ohio St. 433.s It also attacks Battaglia for not addressing

Reed in his Memorandum Opposing Jurisdiction. The fact of the matter is, with all due respect to the

Court, Reed does not require much in the way of cormnent. First and foremost, whatever

pre,cedential value Reed may have is supptanted by this Court's decision in Vance, suprca, 73 Ohio

St.3d at 233, wherein this Court stated

As part of the liberal construction accorded to the FELA, a`relaxedstand.u•d of causation applies' to a negligence claim under tlreact. . . . We see no reason to apply a more stringent standard of'causation for enrotional injtin'y under the FF,LA than for physicalinjury.. . . (emphasis supplied)

Second, the points raised by Conrail are contained in footnotes in Reed and arc thus obiter-

dicturvi. Finally, in the almost haif centrury since Rcedwas decided, it has nevoi been cited by any

3 Undoubtedly due to oversight, the railroad did not provide the citation for Reed on page 9

of its Motion.

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Oliio court for any purposc whatsoever. In fact, so far as Battaglia can determinc, it has only been

cited once in any,jurisdiction, for anotlier issue and at that, it has been distinguished. NoifollcS'. Ry.

Co. v_ Schunzpert (2004), 270 Ga. App. 782, 608 S.E.2d 236. Final ly, and most important, Conrail's

contentionthattheSixtliDistrictfailedtofollow Reed isabsurd. Whileitcorrectlycites Mannionv.

Sandel (2001), 91 Ohio St.3d 318 for the broad proposition fhat courts of appeal must follow the

decisions of the Ohio Supreme Court, it negleots to advise this Court that inferior court,s must also

follow the decisions of the United States Supreme Court. Conrail also overlooks the quoted language

from Vance above and the admonition in Vance that "we are bound to apply the unique body of

federal decisional law interpreting the FL;LA. ..." 73 Ohio St.3d at 227-228.

The remainder of Part C of the Motiori for Reconsideration is nothing inore than a

restatement of the railroad's misinterpretation of NorTollcS. Ry. Co. v. Sorrell (2007), 549 U.S. 158_

But Comail lias cited no new authority to baclcup its empty words. As itpreviously argued at pages

12 and 13 of the Memorandum in Support of Jurisdiction, it continues to insist that the standa.rd

established in Rogers v. Mis.rouri Pac, R. Co. (1957), 352 U.S. 500 has changed.

'I'his is simply not the case. Mr. Battaglia does not believe it is appropriate for him to again

engage in an extended discussion of Sorrell. His position is fully set forth at length on pages 9-13 of

his Memorandum Opposing Jurisdiction. The Appellant is aslcing this court to take the unusual and

utinecessary step of interpreting the dictum from the concurring opinion in Sorrell, and ignore the

plethora of national authority that follows Rogers and its progeny. All that neects to be said is that

Sorreli refused to charige tiie iaw and r,othing has changed that would in any way allow the uOurt to

reach a. different conclusion. See, Marzoll v. Marine Harvest US, Inc. (D. Me. Nov. 29, 2009), 2009

Wl, 4456321, in which the "Sorrell" argument was rejected Grst because it was raised for the tirst

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time in a reply bi-ief, and second on the merits oi'the controversy. See also, Nk+dwig v. Long Lsland

R. R., 2007 WL 1659201 (S.D.N.Y 2007; Jordan v. Bairlington N S F R Co. (2009), 2009 WL

112561 (1/15/2009), appeal denied (8/31/2009).

CONCLUSION

Appellant Consolidated Rail Corporation lias utterly failed to show why or how this Court

mistalcenly declined jurisdiction. In eontravention ofthe Rules of Practice of this Court, Com-ail has

essentially reargued the Propositions of Law it raised in support of jurisdiction. Itlus also attempted

to inject a new issue into the case, whieh was not previously briefed or argued in any court below,

and certainly not in the Memorandum in Support of Jruisdiction. The decision declining jurisdiction

was correct in all respects. Appellant's Motion for Reconsidei-ation should, thei-efore, be denied.

Respectfully submitted,

E.J. Leizerman (0011300)Michael Jay Leizerman (0063945)E.J. LEIZERMAN & ASSOCIATES, LLC717 Madison AvenueToledo. Ohio 43624(419)243-1010IFax:(419)243-8200toni cr leizerman.oom

Charles R. Saxbe (0021952)Donald C. Brey (0021965)CHLSTER, WILLCOX & SAXBli LLP65 East State Street, Suite 1000Columbus, Ohio 43215(614) 221-4000/Fax: (614) 221-4012rsaxbe(a.kwslaw.com; dbrcy@cwslaw.com

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Larry H. James (0021773)Andrew G. Douglas (0000006)CI2ABBE, BROWN & .IAMES I,I,P500 South Front Street, Suite 1200Colunibus, Ohio 43215(614)228-5511/Fax:(614)229-4559lj ames(a),chj lawyers.com;douglas(ci^cbj lawyers.com

COUNSEL FOR APPELLEE,FRANCIS BA'1'TAGLIA

CERTIFICATE OF SERVICE

I hereby certify that on March 4, 2010, a true and correct copy of the foregoing Memorandum

Opposing Appellant's Motion for Reconsideration was scrved tipon the following via first class

iJnited States Mail, postage pre-paid:

Colleen A. Mountcastle, Esq.GALLAGHER, SIIARPSixth Floor, Bucldey Building1501 F,uclid AvenueCleveland, Ohio 44115

David A. Dainico, Esq.BURNS, WI I1TE & HICKTON120 Fifth Avenue Place, Suite 2400Pittsburgh, PA 15222

Janles L. O'Connell, Esq.LINDHORST & DRUIDAME312 Walnut Street, Suite 3100Cincinnati, OIl 45202

Louis P. WarchotDaniel SaphireAss'n American Railroads425 3d St., S.W.Washington, D.C. 20024

ND: 481Cr9259b741, v. 2

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