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The Smart Trial Lawyer vs. Contributory Negligence

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  • The Smart Trial Lawyer vs. Contributory Negligence

    FELA trial continues with opening statements, testimony

    8/18/2009 9:25 PM
    By Amelia Flood




    The second day of a trial over a railroad worker's injuries at a site in Wood River opened with opening statements Tuesday and the first witnesses in plaintiff Phillip Roberts' case.

    Roberts is seeking $1 million in damages from his employer, Union Pacific Railroad Company, for what he claims was a fall in an unsafe work environment.

    The trial opened Monday, with the day spent in jury selection.

    Madison County Circuit Judge Dennis Ruth is presiding.

    Roberts was among those testifying Tuesday, telling jurors how his accident happened on July 17, 2007.

    He claims he was injured when he tripped over an abandoned telephone wire along a stretch of track in Wood River.

    Roberts contends that Union Pacific was negligent in failing to ensure he had a safe work environment, failing to provide him a reasonable pathway and failing to clear vegetation as directed by law.

    Roberts is seeking damages in the amount of $1 million and costs.

    A point stressed by witness Willy Calloway, who was walking front of Roberts at the time of the accident, was that he told Roberts to watch out for "trip hazards." Calloway's video deposition was shown to jurors.

    Under repeated questioning, Calloway continued to repeat that he warned Roberts about the potential for a fall.

    "'Watch out for tripping hazards,'" Calloway recalled saying. He testified that while he did not see the plaintiff fall, he heard it.

    He said he asked Roberts if he was alright, to which Roberts said "I guess."

    "I took it for granted that he was alright," Calloway said.

    Roberts agreed that Calloway warned him of the tripping hazard but differed about the timing.

    "Mr. Calloway was, I would say, 15 to 10 feet away from me," the 50 year-old Arkansas native testified. "I was falling when he spoke to me. When he said it, it was too late."

    Union Pacific argues that Roberts' condition is the result of a pre-existing ailment and that he contributed to his accident.

    Roberts is represented by Daniel Francis of St. Louis.

    Union Pacific is represented by Thomas Jones of Belleville.

    The trial will resume Wednesday.

    The case is Madison case number 07-L-906.

    Comment: Please follow me here. When a FELA case goes to trial, the plaintiff [Injured Worker] goes first as they have the "burden of proof". Normally, the Worker's attorney [WA] usually puts thei best "face" on in the beginning because much research shows that Jurors tend to get an early "impression" on how the case should be decided. In this case, it appears that the WA called a witness by deposition that was somewhat "hostile" to the injured worker. Why do I say hostile? Because the article states:

    "A point stressed by witness Willy Calloway, who was walking front of Roberts at the time of the accident, was that he told Roberts to watch out for "trip hazards." Calloway's video deposition was shown to jurors."

    This testimony would go to the contributory negligence or comparitive fault of the injured worker. Of course, any negligence found by the jury against the worker reduced the amount awarded by the jury by the percentage of negligence.

    Question: Why would the WA put on a witness early in their "case-in-chief" that has something that could affect the outcome unfavorably to the plaintiff? Well, there are a number of reasons that this might occur. Obviously we do not know too much so we cannot say for sure. However, one main reason is that the WA is bold and is not worried about the evidence. This is a decision rarely done by a novice practitioner. This is what I mean: Look at the words: ""trip hazards"....do people really talk that way? I would believe him if he testified, "I told him to watch where he walked" or "I said be careful". Another thing, Calloway was purportedly in front of Roberts, how odd/unnatural is it that someone is walking in front of him yelling back "watch out for trip hazards"?

    In summary, the seasoned practitioner is not afraid of bad evidence. Perhaps, Union Pacific was taking the position Roberts was faking and did not fall at all. Calloway corroborates a fall so that evidence is good and could have been needed to refute UP. So, thumbs up go to Mr. Francis.

    Steve Gordon
    Board Certified in Personal Injury Trial Law
    Texas Board of Legal Specialization
    FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident

    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
    Juror collapse, power outage, ringing cell phone disrupt FELA trial

    Juror collapse, power outage, ringing cell phone disrupt FELA trial
    8/19/2009 4:19 PM
    By Amelia Flood


    When the power went out briefly at the Madison County Courthouse on Wednesday afternoon, Circuit Judge Dennis Ruth laughed along with jurors and attorneys gathered in his court for a railroader's personal injury trial.

    "I don't know what to say," Ruth told the incredulous jurors. "I think the snakes got in the roof."

    The power outage came just after Ruth called jurors back in after the collapse of a juror, an older woman who passed out at about 1:15 p.m. during the testimony of plaintiff's expert, Dr. George Schoedinger III.

    A fellow juror who identified herself as a nurse and Schoedinger helped the unconscious woman while Ruth quickly left the bench to call for deputies.

    The juror was taken by ambulance to a local hospital.

    Just after the power outage, one juror's cell phone rang, contributing to an afternoon of disruption.

    The remaining jurors had previously assured Ruth that their co-juror's collapse would not hinder their hearing of Phillip Roberts' lawsuit against his former employer, Union Pacific Railroad Company.

    Roberts is suing the railroad under the Federal Employee Liability Act for damages of $1 million and costs. Roberts, an Arkansas native, sued Union Pacific over injuries he claims were sustained in a fall along a stretch of track in Wood River.

    According to the suit, Roberts injured his back and legs after tripping on an abandoned telephone wire at the Wood River site. He claims the company failed to provide a safe work place, failed to provide a reasonable pathway and failed to clear vegetation among other charges.

    Union Pacific alleges that Roberts' lower back injuries are due to a pre-existing condition and that he contributed to his fall.

    The co-worker walking in front of Roberts at the time of his accident in 2007 testified by video deposition Tuesday that he warned Roberts about the tripping hazard.

    Prior to and just after the juror's collapse, Schoedinger testified about Roberts' injuries. Roberts has had surgery to fuse discs in his lower spine and has undergone physical therapy, according to his doctor, but has been unable to work.

    On cross examination, defense attorney Thomas Jones asked the doctor if ruptured or herniated discs in two parts of the back, like Roberts', were common in men after age 35. Schoedinger agreed.

    Jones pointed out to Schoedinger's long history of acting as a plaintiff expert in railroad injury cases and asked about how much he charged for his testimony.

    "I charge for my time, here in the courthouse, away from my practice," Schoedinger said of his fees he charges for testimony. "You can't buy my testimony."

    Testimony in the plaintiff's case continued with economist Dr. Leroy Grossman, formerly of St. Louis University, testifying as to the economic damages Roberts may have suffered.

    Grossman told jurors that, based on economic conditions and what Roberts had received as pay and benefits before the accident, his total damages would come out to about $705,720.

    The trial will resume Thursday.

    The case is Madison case number 07-L-906.
    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

    Comment


    • #3
      Defense makes case in Union Pacific trial

      8/21/2009 7:47 AM
      By Amelia Flood

      RuthThe trial of a railroad's injury case against his employer, Union Pacific Railroad Company, continued Thursday, ending just before 4 p.m. with defense testimony.

      The trial will resume Friday at 10 a.m. with closing arguments and jury deliberations.

      The jurors heard expert testimony including that of the vocational consultant who had worked with plaintiff Phillip Roberts since 2008.

      Jurors saw excerpts from video depositions including that of Roberts and heard a recording of an interview between Roberts and Union Pacific claims representative Stephen McCartney taken on the day of his accident.

      In that recording, Roberts says he did not think an abandoned telephone wire contributed to his fall.

      Roberts sued Union Pacific, claiming he was injured while working on a stretch of track in Wood River. The Arkansas native tripped over a telephone wire July 17, 2007.

      Roberts claims that he injured his lower back and legs. His suit contends that Union Pacific failed to provide a safe work environment, failed to provide a reasonable pathway, and failed to clear vegetation from the site as required by law.

      Expert witness Dr. George Schoedinger III testified Wednesday that Roberts had required surgery to fuse damaged discs in his lower back and that the fall had caused the damage.

      On cross examination by defense attorney Thomas Jones, Schoedinger agreed that most men 35 years of age, including a 50 year-old like Roberts, would have disc damage in multiple regions of the spine.

      Wednesday's trial was interrupted at least twice, as a juror passed out and had to be taken to the hospital and a juror's cell phone went off during testimony.

      Union Pacific contends that Roberts' injuries stemmed from a pre-existing condition and that he contributed to his accident.

      A co-worker who had been walking in front of Roberts at the time of the incident testified in a video deposition that he had warned Roberts of tripping hazards. Roberts testified Monday that he had been falling already when the warning was given.

      Roberts is seeking damages of $1 million and costs.

      He is represented by Daniel Francis of St. Louis.

      Madison County Circuit Judge Dennis Ruth is presiding.

      The case is Madison case number 07-L-905.


      Last edited by FELA FELLA; 08-22-2009, 04:45 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

      Comment

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