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Repetetive/Cumulative Trauma Claim Loses Due To SOL

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  • Repetetive/Cumulative Trauma Claim Loses Due To SOL

    Article Dated April 29, 2009 Madison County Record | Illinois Court News | Litigation-- Class Action, Asbestos, Medical Malpractice News Here is the Story: FELA claimant files legal malpractice claim against Lawfirm #1 4/29/2009 12:51 PM By Kelly Holleran A Jacksonville man says he lost his chance to earn more than $500,000 after a lawyer failed to timely file a complaint for injuries the man claims he sustained while working for a railroad. In a lawsuit Plaintiff filed against Lawyer #1 in Madison County Circuit Court on April 24, Plaintiff says he hired Lawfirm#1 on Jan. 27, 2005, to represent him for repetitive trauma damages he received while working for Norfolk Southern Railway Company. Plaintiff had valid damages under the Federal Employers' Liability Act, which included injuries to his lumbar spine, right knee, left knee and bilateral carpal tunnel syndrome, the complaint says. Lawyer#1 obtained medical records from Plaintiff's doctor, Dr. X, that showed he only treated Plaintiff for osteoarthritis of his left knee, which had been aggravated by Plaintiff's job duties, according to the complaint. However, Lawyer#1 never filed a complaint against the railroad on behalf of Plaintiff, causing Plaintiff to lose a substantial amount of money, according to the lawsuit. "Plaintiff's legal claims against said Norfolk Southern Railway Company for repetitive trauma damages - including his claim for left knee injury - were legally, scientifically, and medically meritorious causes of action under the FELA; and said FELA claims, if properly prepared and prosecuted, would ultimately have been won to a Macon County, Illinois jury in favor of Plaintiff or would have settled for a sum in excess of $500,000," the suit states. After continuously making phone calls to Lawyer#1's office with no response, Plaintiff decided to hire Lawfirm #2 to represent him in the case. Lawfirm #2 filed a complaint in Missouri Circuit Court on Aug. 10, 2006, Plaintiff claims. However, that complaint was dismissed without prejudice to file in a more convenient forum within one year under the doctrine of forum non conveniens, Plaintiff says. So, on June 21, 2007, Lawfirm #2 filed a complaint for the repetitive trauma he sustained in his left knee in Macon County Circuit Court.
    Last edited by FELA FELLA; 04-30-2009, 12:02 AM.
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365
    800-773-6770

  • #2
    Analysis To Above Post

    Many Railroaders suffer from continuous wear and tear to their bodies. I am sure each of you know someone that has had what the law calls a repetitive or cumulative trauma injury (RTI). As we know, the Statute of Limitations (SOL) [I am sure that Hog is going to say that SOL stands for something else and in a way he is right!] is 3 years from the date of injury. That means, if you do not settle or file a lawsuit before the 3 year anniversary from the 'date of injury' you are forestalled from doing so. The question in a RTI case is, what is the date of injury? The injury arguably occurs everyday you work so, wouldn't the SOL never end? NO. The SOL begins to run when the railroad worker "discovers", or exercising reasonable care, "should discover" that it is an injury related to work. This is called the "discovery Rule" and the U.S. Supreme Court has specifically held that it applies in FELA cases to RTI type claims. Thus, the facts of each case are very important and will turn on (1) what symptoms the plaintiff was having; (2) what visits, if any, to the doctor were made; (3) what was told to the worker by the doctor and (4) other matters. The outcome in the above initial case could have been different if Lawyer #1 filed the case immediately (assuming he had it before the SOL ran) and there would not have been a malpractice claim brought because no Summary Judgment should have been granted. Our firm does not handle RTI claims. However, one of the obvious reasons that we do not is that they can be a problem from the SOL perspective well before the prospective plaintiff even talked to us. I have been approached by active railroaders and told that they were close to "calling it quits" and they were planning to assert a RTI claim. My advice was not to wait as a potential existed that their SOL could be ticking away. Don't know if they listened or not. I believe most FELA attorneys would agree that the value of settlement offers, if any, from the railroads are far below a singular event claim. Often times, a person who has been working many years as a railroader does, in fact, have some areas of their body "worn down" through constant wear and tear. This actually makes them more susceptible to a singular traumatic event. Kind of like the "straw that broke the camel's back" or, put another way, "an accident waiting to happen". There is much to write on all these topics but, for now, I think this enough and I bid you a goodnight! Stay safe! Steve Gordon www . gordon-elias. com
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365
    800-773-6770

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