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  • Case Briefings by G&E

    This thread will be for Posts of recent cases dealing with FELA issues. Some of the cases will be interpreting FELA law and, therefore, more pertinent to FELA issues; some of the cases will be dealing with FELA claims but the holding may not directly affect FELA substantive law, e.g., a case decided on some procedural issue and not a FELA law issue. I have been tossing around for months whether to make it a STICKY or not since I want the cases to be in Order. So, if you want to comment on the cases, I would respectfully ask that you comment in the http://www.yardlimits.com/forums/ask...tml#post135774.

    Thank you and I hope this helps you understand what you and your practitioners are up against as your claim goes along.

    Steve Gordon
    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
    Sharpley v. Metro-North Commuter Railroad--S.D. N.Y.

    Description of the Case: FELA

    Case Name
    : Steve D. Sharpley v Metro-North Commuter Railroad

    Date of Judgment
    : 27th March 2009

    Court
    : U.S.D.C. - S.D. New York

    Judge:
    District Judge Daniels

    Citation
    : 2009 WL 855790 (S.D.N.Y.)


    Background:
    Plaintiff, Steve Sharpley, was a former signal inspector employed by defendant, Metro-North Commuter Railroad (“Metro North”). Sharpley filed suit under the Federal Employers’ Liability Act (“FELA”) to recover damages for injuries sustained as a result of his employer’s negligence in maintaining its premises.

    Sharpley presented evidence at trial that as he was stepping down out of his employer’s truck, he placed his foot upon a heightened portion of the ground. The ground was wet from a recent snowfall and shifted under Shipley’s weight. He grabbed the steering wheel, attempting to regain his composure. He felt a pop in his back and wrenched his lower back.

    Sharpley blamed the darkened conditions at the work site for his inability to see the heightened portion of ground. The trial evidence demonstrated Metro-North had previously received complaints about the inadequate lighting. Other evidence showed that Metro-North had provided Sharpley with a flashlight, which he failed to use when he alighted from the vehicle.

    After a four-day jury trial, judgment was found in favor of Sharpley, who was awarded $832,403 in damages. Metro-North moved for judgment as a matter of law or, alternatively, for a new trial. Metro-North contended that the jury’s failure to find contributory negligence as well as its excessive award were against the weight of evidence and constituted a miscarriage of justice.

    Sharpley’s Issue:
    Sharpley argued that Metro-North maintained an unsafe workplace by failing to install overhead lighting.

    Metro-North’s Issue:
    The defense counsel stressed to the jury that the issue of lighting was irrelevant. They contended the cause of the accident was Sharpley’s failure to properly secure his footing and not slip.

    Held:
    The Court concluded there was sufficient evidence to support the jury’s finding that Sharpley suffered an injury solely as a result of Metro-North’s negligence in failing to provide permanent lighting fixtures.

    Moreover, Metro-North’s position that the verdict must be set aside, because the jury ignored evidence that Sharpley caused the accident, stood in stark contrast to their closing arguments. There they stated the lighting conditions did not play a role in causing the accident. The jury reasonably concluded that Sharpley was unable to use a flashlight while at the same time lowering himself to the ground. Thus, the jury found that Metro-North had failed to meet its burden of proving that Sharpley was contributorily negligent. The jury’s finding that Metro-North had failed to meet its burden of proving that Sharpley was contributorily negligent was neither an error nor a miscarriage of justice.

    The Court further held there was sufficient evidence to support the jury’s award. The award was consistent with evidence of Sharpley’s physical limitations caused by his back injury.

    Comments:

    The Court focused on what was the sole cause of Sharpley’s injury. Often a Court will find there are multiple causes of injuries. To resolve this, courts will look to the sole or primary cause of the accident. Here, the flashlight was not the sole cause of the accident. It was the lack of permanent lighting which caused the fall. It is debatable whether the flashlight would have been useful or practical as Metro-North argued. There was no debate about the need for permanent lighting, a fact that Metro-North was already aware of due to prior accidents. Thus, a flashlight would be no alternative to a permanent light fixture.

    Steve Gordon
    New York FELA Injury Lawyers | Railroad Worker Injuries Buffalo NY | Rochester Syracuse Albany |
    Last edited by FELA FELLA; 07-24-2009, 08:29 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


    • #3
      Zuckerberg v. Port Authority of NY --Queens County-N.Y.

      Description of the Case: FELA

      Case Name: Paul Zuckerberg, et al., v The Port Authority of N.Y. and N.J.

      Date of Judgment: 8th April 2009

      Court: Supreme Court - Queens County - New York

      Judge: Justice Agate

      Citation: 876 N.Y.S.2d 855


      Background: The plaintiff, Paul Zuckerberg, brought suit against the defendant, The Port Authority of New York and New Jersey (“Port Authority”).

      Zuckerberg sustained serious injuries when he tripped and fell on a door saddle in a building owned by the Port Authority. At the time of the accident, he was working as a police officer, and had been assigned to patrol John F. Kennedy International Airport. Zuckerberg filed this action pursuant to the Federal Employers’ Liability Act (“FELA”).

      The Port Authority moved for summary judgment. They argued that FELA does not apply to this action, as Zuckerberg was not a railroad employee. Port Authority further contended that Zuckerberg was barred from bringing a FELA action, as his only remedy was Workers’ Compensation.

      Zuckerberg argued that his work duties and subsequent accident permitted recovery under FELA. He worked for the Port Authority, who owned and operated a railroad. As a result, he often patrolled the railroad while on duty. Therefore, Zuckerberg contended that made him a railroad employee under FELA. Further, Zuckerberg argued that FELA pre-empts state Workers’ Compensation law.

      Issue: (1)Whether the Court will find that Zuckerberg was a railroad employee eligible to recover under FELA, and (2) whether workers’ compensation can be given instead of FELA.

      Held:
      The Court held that Zuckerberg cannot recover under FELA.

      The evidence submitted did not establish that Zuckerberg was a railroad employee. Zuckerberg was employed by the Port Authority as a police officer. At the time of Zuckerberg’s accident, he was patrolling JFK Airport as a police officer; not as a railroad employee.

      The Court held that applying FELA under the facts of this case would extend the scope of the statute beyond what was envisioned by Congress.

      The defendant’s motion for summary judgment is granted, and the action is dismissed.



      Comments:

      Congress enacted FELA in 1908 to address the massive number of work-related injuries in the railroad industry. The purpose of FELA was to offer help to railroad workers who are constantly exposed to the risks inherent in railroad work, and who are often helpless to provide for their own safety.

      FELA is liberally construed by the Courts. The statute supersedes state and common law and provides an exclusive remedy for injured railroad workers.

      The Court will rarely allow employees who are not railroad workers to recover under FELA. They must have substantial connections to a railroad to allow them to recover. As mentioned in the facts, Workers’ Compensation is available for non-railroad employees who are injured while at work.

      Steve Gordon
      New York FELA Injury Lawyers | Railroad Worker Injuries Buffalo NY | Rochester Syracuse Albany |
      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


      • #4
        King v. CSX 6th Dist. Ohio

        Description of the Case: FELA

        Case Name: Jeffery A. King v CSX Transportation, Inc.

        Date of Judgment: 20th March 2009

        Court: Court of Appeals of Ohio – 6th District - Lucas County

        Judge: District Judge Skow

        Citation: 2009 WL 806605 (Ohio App. 6 Dist.)

        Background: Jeffrey King appealed from an entry of judgment in favor of CSX Transportation (“CSX”).

        On January 20, 2005, King was injured when he fell from the side of a moving railcar, while performing his duties as a conductor for CSX. King was subsequently treated for a sprained knee and a lumbar strain.

        King filed suit against CSX, pursuant to the Federal Employers’ Liability Act (“FELA”). He his company-provided anti-slip footwear did not allow his foot to change positions before he landed on the ground. Therefore, his knee and foot fell at an awkward angle and he suffered injuries.

        The trial was held before a jury. King argued a theory of negligence, stating that his footwear caused him to fall from the railcar. CSX introduced a video, which demonstrated the ability of the footwear to work in a situation similar to King’s.

        King and CSX both disputed the testimony of Joseph Tumasian, a former employee of CSX who was injured while working. The lower court then instructed the jury not to consider Tumasian’s testimony as evidence of negligence by CSX.

        The jury rendered a verdict in favor of CSX, finding they were not negligent under FELA. They were therefore not responsible for King’s injuries. King appealed.

        Issues: (1) Whether the footwear video should have been presented to the jury, and (2) whether Tumasian’s testimony should have been considered as evidence of negligence by CSX.

        Held:
        The Court first examined the footwear video. King contended the video was irrelevant and should not have been admitted. The Court held the video was relevant because it weakened King’s claims about the boots. Thus, the trial court did not abuse its discretion by permitting CSX to show the video to the jury.

        The Court further noted that the lower court’s decision to exclude Tumasian’s testimony will only be reversed if there was a clear abuse of discretion. Evidence of former accidents are admissible to show an unsafe condition and a defendant’s knowledge of such a condition.

        The Court next determined that the danger of prejudice or confusion to the jury was substantially outweighed by the value of the evidence. The trial judge was concerned the similarities between Tumasian’s testimony and the present case would cause prejudice.

        The Court held the evidence of Tumasian’s accident, which occurred after King’s, was inappropriate to show CSX was at fault. The lower court properly restricted Tumasian’s evidence from being considered by the jury.

        Significance:

        King argued that the video evidence was not ‘relevant’ and should not have been admitted. Relevant evidence is defined as evidence “which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Simply put, relevant evidence allows for decisions to be made more easily.

        Steve Gordon
        http://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

        Comment


        • #5
          Mergler v. CSX Sup. Ct. 4th Dept. New York

          Description of the Case: FELA

          Case Name: John P. Mergler v CSX Transportation, Inc.

          Date of Judgment: 27th March 2009

          Court: Supreme Court, Appellate Division- Fourth Department, New York.

          Judge: Supreme Court, Erie County Justice Makowski

          Citation: 875 N.Y.S.2d 735


          Background:
          The respondent, John Mergler, filed suit against his employer, CSX Transportation, under the Federal Employers’ Liability Act (“FELA”).

          Mergler worked as a locomotive engineer while employed by CSX. He sustained injuries when a series of railroad cars struck down the locomotive he was operating. He sought damages for his injuries.

          Mergler was awarded damages in the lower court and CSX appealed. CSX contended that the lower court erred in allowing Mergler to present evidence of future lost wages. CSX further argued that Mergler failed to provide an adequate estimate of the cost of his future medical treatments.

          Issue: (1) Whether the lower court properly allowed Mergler to present evidence of future lost wages, and (2) whether the Court erred by not requiring Mergler to provide an estimate of his future medical costs.

          Held:
          The Court rejected both of CSX’s arguments. They held that the lower court had properly allowed Mergler to present evidence of future lost wages. Further, Mergler’s inability to give an estimate of future medical costs was not done in bad faith.

          Mergler had given sufficient details about his injuries and the medical treatments he had received thus far. All medical documents had been provided to CSX in compliance with the Health Insurance Portability and Accountability Act of 1996. The Court found no evidence that the future costs of medical treatments were being withheld by Mergler. To the contrary, Mergler had provided all necessary documents to CSX within the allotted time.

          Significance:

          The respondent Mergler filed suit under the Federal Employers’ Liability Act (“FELA”). This Act protects and compensates railroaders injured while on the job, and has done so for over 100 years.

          Monetary payouts for pain and suffering are not awarded automatically. The injured railroader must prove the railroad was “legally negligent.” This means that the railroad must, at least in part, be responsible for causing the injury.
          The Court in the present case does not discuss whether or not CSX was negligent. That determination was made by the lower court. This Court’s job was to determine whether future lost wages could be factored into Mergler’s award for damages and whether Mergler’s estimate of his future medical costs should have been required.

          Following the lower court’s holding that CSX was negligent, the Court found no reason to assume that Mergler could estimate his future medical costs. With the possibility of further medical problems related to his injury, rising medical costs due to the economy, and other factors, this Court held that an inability to estimate costs should not preclude Mergler from collecting.

          Steve Gordon
          New York FELA Injury Lawyers | Railroad Worker Injuries Buffalo NY | Rochester Syracuse Albany |
          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


          • #6
            Schipper v. BNSF USDC-Kansas

            Description of the Case: FELA

            Case Name: Curtis Schipper v BNSF Railway Co.

            Date of Judgment: 4th April 2009

            Court: U.S.D.C. – District of Kansas

            Judge: U.S. Magistrate Judge O’Hara

            Citation: 2009 WL 997149 (D.Kan.)


            Background: This suit arose out of a motorcycle-automobile collision between the plaintiff, Curtis Schipper, and Michael Morgan. Both Schipper and Morgan were employees of the defendant, BNSF Railway Company (“BNSF”). They were both staying at a hotel while attending a training program put on by BNSF.

            Schipper alleged he was injured as the result of the accident and brought a negligence claim against BNSF under the Federal Employers’ Liability Act (“FELA”).

            Jury trial was scheduled to begin on April 20, 2009. The Court convened on April 13, 2009, to hold a status and limine conference. During this time, each party submitted their motions in limine. The Court then ruled on the motions.

            Schipper submitted 13 subparts to their motion. The Court only listed the unopposed motions in their Order. BNSF submitted 17 subparts, and the Court accordingly listed only those unopposed motions. Schipper also submitted a motion to compel railroad employee witnesses at trial.

            Issue: Whether the Court (1) will grant Schipper and/or BNSF’s motions in limine and, (2) whether the Court will grant Schipper’s motion to compel.

            Held:
            For a motion in limine, the moving party has the burden of demonstrating that the evidence is inadmissible on any relevant ground.

            The Court held that Schipper’s motion in limine was granted in 9 subparts and denied in 4 subparts.

            Following, the Court held that Defendant’s motion in limine was granted in 13 subparts, and denied in 4 subparts.

            Finally the Court denied Schipper’s motion to compel the railroad employee witnesses at trial. The trial commenced on April 20, 2009.

            Comments:

            The Court, in trying to decide whether to grant a motion in limine, looks to the moving party to demonstrate the evidence is inadmissible. Any motion may be denied when it lacks specificity with respect to evidence to be excluded. At trial, the Court may alter their motion in limine ruling based on developments at either trial or their own sound discretion.

            A ruling in limine does not prevent a party from the responsibility of making objections, raising motions to strike or making formal offers of proof during the course of trial.

            Steve Gordon
            Kansas FELA/Railroad Worker Injury Lawyer | Attorney Wichita Kansas City KS Topeka 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

            Comment


            • #7
              Streeter v. Can. Pacific USDC -E.D. Wisconsin

              Description of the Case: FELA

              Case Name: Chris Streeter v Canadian Pacific Railroad, et al.

              Date of Judgment
              : 22nd April 2009

              Court
              : U.S.D.C. - E.D. Wisconsin.

              Judge:
              District Judge Adelman

              Citation
              : 2009 WL 1080853 (E.D.Wis.)


              Background:
              Plaintiff Chris Streeter brought suit against defendants Canadian Pacific Railroad, Soo Line Railroad and CP Rail Systems.

              Streeter was employed by defendants as a conductor of two locomotives. A fire started in one of them, and Streeter ran to a nearby locomotive to retrieve a fire extinguisher. While exiting the locomotive with the fire extinguisher, his foot became entangled in the locomotive’s ladder and he twisted his knee. He was forced to undergo several operations.

              Streeter sought damages for injuries incurred as a result of defendants’ alleged violation of the Federal Employers’ Liability Act (“FELA”) and the Locomotive Inspection Act (“LIA”). Defendants moved for summary judgment on the LIA violation.

              Issue:
              Whether the Court will (1) find the defendants in violation of LIA and/or FELA and, (2) whether the Court will grant the defendants summary judgment.

              Held:
              The Court first looked at the pleadings, depositions, interrogatories and admissions to determine if there was a genuine issue as to any material fact. All inferences were drawn in the light most favorable to Streeter.

              This Court liberally construed their interpretation of LIA. The purpose of LIA is to protect employees by requiring work equipment to be safe and in its proper condition. Thus, the Court held that when the locomotive was on fire, it was not in proper condition and safe to operate. Thus, the injuries Streeter sustained while trying to put out the fire were related to its improper and unsafe condition. Streeter successfully argued that there was a LIA violation.

              Further, the Court held that because there was proof of a LIA violation that was sufficient to prove negligence under the FELA.

              Therefore, the Court stated that the defendants’ argument failed. There was no question that a fire in a locomotive made it unsafe, and summary judgment was not granted.




              Comments:

              The LIA allows a railroad to use a locomotive only when it and its parts (1) are in proper condition and, (2) safe to operate without unnecessary danger of personal injury. Thus, the LIA is violated whenever a railroad uses a locomotive that is not in proper condition and safe to operate.

              The difference between the FELA and LIA is extremely important. The FELA compensates railroad workers who are injured as a result of employer negligence. The LIA imposes on railroad carriers the duty to provide their employees with safe equipment. Most notably, the LIA does not create a private right of action for injured employees.

              The United States Supreme Court has construed the LIA as an amendment to the FELA, so that proof of a LIA violation is sufficient to prove negligence as a matter of law under the FELA.


              Steve Gordon
              http://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

              Comment


              • #8
                Nickels V. Grand Trunk & Cooper v. CSX -CONSOLIDATED 6th Circuit

                Description of the Case: FELA

                Case Name: Stanley R. Nickels v Grand Trunk Western Railroad, Inc.
                Donald C. Cooper v CSX Transportation, Inc.

                Date of Judgment: 18th March 2009

                Court: U.S. Court of Appeals- 6th Circuit

                Judge: Circuit Judge Batchelder

                Citation: 560 F.3d 426


                Background: In this consolidated action, appellants Stanley Nickels and Donald Cooper appealed entries of summary judgment on their Federal Employers’ Liability Act (“FELA”) claims.

                Both appellants claim that their former employers failed to provide a safe working environment by using large mainline ballast instead of smaller yard ballast around the railroad tracks. The larger ballast is more strenuous on the body and provides for uneven footing.

                Appellant Nickels worked as a conductor, moving railcars from one track to another. This forced him to often walk on the mainline ballast. In 2004 Nickels began experiencing pain and discomfort in his feet. Ultimately he had surgery on both feet but has been unable to return to work.

                Appellant Cooper’s duties also required him to walk on the mainline ballast. In 2000, Cooper sought treatment for stiffness and pain in his right leg. By 2003, Cooper was no longer able to perform his job responsibilities, and was diagnosed shortly after with avascular necrosis. This illness caused bone destruction and loss of joint function.

                Both appellants separately sued their former employers under the FELA. The railroads moved for summary judgment, arguing that the Federal Railway Safety Act (“FRSA”) precluded the plaintiffs’ FELA claims. The district courts granted the motions, holding that allowing the workers’ FELA claims to continue would undermine the FRSA’s goal to achieve national uniformity in railroad safety regulations. Thus, the lower courts both held that only a claim under the FRSA should have been brought.

                Nickels and Cooper appealed, and this Court consolidated their actions.

                Issue: Whether the Court will uphold the summary judgments granted to the railroads or overturn in favor of the injured employees.

                Held:
                First, the Court examined the role of the FRSA and FELA, both of which are designed to promote railway safety.

                The FRSA’s purpose is to promote safety in all areas of railroad operations and to reduce railroad-related incidents. Under the FRSA is a provision that states, “laws, regulations, and orders related to railroad safety…shall be nationally uniform.”

                The FELA makes a railroad liable to its employees injured “by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”

                After examining the FRSA’s goal to create national uniformity in railroad safety, this Court affirmed the lower courts’ grant of summary judgment to the railroads. This Court noted that allowing the appellants to pursue their FELA claim would be in direct contradiction with the goals of the FRSA. The employees would likely have been more successful had they brought an FRSA claim.

                Having a nationally uniform system for injured railroad employees was paramount. The FELA was meant to compensate employees for injuries incurred, while the FRSA controlled the railroad safety regulations. Finding no reason to change the interpretation of the FELA and FRSA, the Court denied Nickels and Cooper’s appeal.

                Comments:

                Both the FELA and FRSA promote railroad safety. The FELA is specifically for railroad workers who are not covered by regular workers’ compensation laws. They are able to sue companies over their injury claims. Under FELA, the cause of action is based on negligence by the employer.

                The FRSA varies from the FELA. The FRSA’s purpose is to promote safety in railroad operations and reduce railroad accidents. The FRSA prescribes certain regulations and orders for every area of railroad safety. The goal is to create a national uniformity of regulations.

                Steve Gordon
                Ohio FELA/Railroad Worker Injury Lawyer | Columbus Attorney | Cleveland OH Cincinnati Toledo Canton Akron
                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


                • #9
                  Case Name: Richard P. Flaa v Burlington Northern Santa Fe Railway Co.

                  Court: U.S.D.C. - E.D. Washington

                  Date of Judgment: 6th May 2003

                  Judge: Magistrate Judge Imbrogno


                  Background: The Plaintiff, Richard P. Flaa, brought forth a Motion to Compel Defendant, Burlington Northern Santa Fe Railway Co. (“BNSF”) to produce three documents.

                  The first document was a copy of each and every Employee Injury/Illness Supervisor’s Report. BNSF failed to produce pages nine and eleven of Flaa’s report, which detailed the equipment, acts, and conditions contributing to the injury, the root cause of the injury, and the recommended corrective actions. BNSF argued those pages were never completed and did not exist.

                  Next, Flaa wanted the BNSF Report of Inspection prepared in response to Flaa’s April 2, 2000, on-the-job injury. BNSF stated that the request was “overly broad and unduly burdensome.” BNSF further countered that the form was never completed and therefore did not exist.

                  Flaa next contended that BNSF failed to produce the “Self-Critical” Analysis. BNSF argued that pursuant to 49 U.S.C. § 20903 and 49 C.F.R. § 225.7, no part of any report filed under the latter may be used in an action for damages. BNSF asserted the privilege of common law attached by virtue of statutory law.

                  Flaa objected, stating that the self-critical analysis document was published by BNSF, rather that prescribed by the FRA and BNSF waived any objections by failing to object within thirty days.

                  Issue: The Court must decide whether (1) the Motion to Compel on each of the three documents will be granted; and whether (2) the privilege of common law attaches by virtue of statutory law.

                  Held:
                  The Supervisor’s Report was the first document requested by Flaa. The Court accepted BNSF’s representation that the documents did not exist. Thus, the motion to compel was denied as moot.

                  Similarly, the Court accepted BNSF’s representation that the Inspection Form was never completed and did not exist. Therefore, Flaa’s motion to compel was denied as moot.

                  For the self-critical analysis document, the Court held that BNSF’s argument must fail.

                  When applied, the self-critical analysis privilege concerns situations involving “an intrusion into the self-evaluative analysis of an institution that would have an adverse effect on the evaluative process, with a net detriment to a cognizable public interest.”

                  Thus, because production of such documents can hamper candid self-evaluation geared towards preventing future accidents, the doctrine evolved to protect subjective or conclusory materials.

                  In tort cases, Dowling v American Hawaii Cruises (971 F.2d 423) is the standard for determining the applicability and extent of the privilege. Pursuant to Dowling, a self-critical analysis privilege may attach if: (1) the information sought resulted from a critical self-analysis undertaken by a party seeking protection; (2) the public has a strong interest in protecting flow of this information; (3) information is of the type whose flow would be curtailed if discovery was allowed; and (4) the document was prepared with the expectation it would be and has been kept confidential.

                  Here, BNSF produced the BNSF Railway Alternative Form instead of FRA Form F6180.98. BNSF asserted that the information used to prepare their form was derived, in some part, from the self-critical analysis prepared after the accident. This Court held there was no evidence the self-critical analysis remained confidential, which was necessary to give BNSF the privilege found in Dowling.

                  Thus, the common law privilege did not apply to the self-critical analysis material in light of the fact BNSF disclosed the Alternative form, which would have otherwise been privileged, and BNSF’s failure to assert privilege within the time allotted.

                  The Court next discussed BNSF’s alleged statutory privilege. BNSF contended the privilege existed by virtue of federal statutory law, 49 U.S.C. § 20903, 49 U.S.C. § 20901(a), and 49 C.F.R. § 225.7.

                  This Court held that no self-critical analysis privilege existed based on statutory provisions. First, no case law was given by BNSF in support of their contention. Second, the form at issue was not one mandated by the FRA, and was therefore not protected by federal statutes.

                  Thus, Flaa’s Motion to Compel for the self-critical analysis was granted. BNSF must produce this document within five business days.

                  Note: The gist of this case was the Court’s consideration and rejection of BNSF’s objections based on the common law privilege, as well as 49 U.S.C. § 20903 and 49 C.F.R. § 225.1.


                  Steve Gordon
                  Washington FELA Claims Attorney | Railroad Worker Injury Lawyer WA | Seattle Spokane Tacoma Kent |
                  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


                  • #10
                    Anderson v. Union Pacific USDC - E.D. California

                    Description of the Case: FELA

                    Case Name: Ronald Anderson v Union Pacific Railroad Co.

                    Date of Judgment: 27th September 2002

                    Court: U.S.D.C. – E.D. California

                    Judge: District Judge Levi

                    Citation: 2002 WL 34482622 (E.D.Cal.)


                    Background: Plaintiff, Ronald Anderson, brought suit against defendant, Union Pacific Railroad Company (“Union Pacific”). Anderson was injured while working as an engineer for Union Pacific.

                    Anderson moved for summary judgment on the railroad’s liability and all of Union Pacific’s affirmative defenses. Anderson further contended that Union Pacific violated the California Public Utilities Commission General Order 26-D (“GO 26-D”) and that such violation constituted negligence per se under the Federal Employers’ Liability Act (“FELA”).

                    Issue: Whether the Court will grant summary judgment to Anderson.

                    Held:
                    Anderson’s motion for summary judgment will be denied without prejudice. There is disagreement in the case law as to whether a violation of a state regulation, here the GO 26-D, can constitute negligence per se under FELA.

                    Anderson cited Whitley v Southern Pacific Transportation Co., 902 P.2d 1196 (Or.1995), where a state regulation established negligence per se.

                    However, Union Pacific cited to Schultz v Northeast Illinois Regional Commuter R.R. Corp., 2002 WL 1227222 (Ill.2002), as well as Haugen v Burlington Northern and Santa Fe Railway Co., 2001 WL 1852331 (W.D.Wash.2001) to show that a state regulation could not establish negligence per se under FELA.

                    This Court held that further briefing on the issue, as well as the cases of Whitley, Schultz, and Haugen were needed before a decision can be made. Therefore, the Court will permit further briefing on whether a state regulation can constitute negligence per se under FELA.

                    Comments:

                    This case represents a ruling that is not often given: a motion for summary judgment that is denied without prejudice.

                    When a motion is dismissed without prejudice, it indicates the absence of a decision on the merits. This leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had never happened.

                    The purpose of the Court ruling without prejudice on Anderson’s motion was to prohibit Union Pacific from using the doctrine of res judicata in a later action. Res judicata occurs when a court has already decided a case, and as a result, no new lawsuits may be brought on that subject.

                    Steve Gordon
                    California FELA Railroad Worker Injury Attorney | Los Angeles Lawyer | San Francisco, Sacramento, Stockton, Fresno, San Jose, Modesto, and Needles




                    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


                    • #11
                      Siegel v. Metro-North USDC-S.D. N.Y.

                      Description of the Case: FELA

                      Case Name: James Siegel v Metro-North Commuter Railroad Co.

                      Date of Judgment: 1st April 2009

                      Court: U.S.D.C. – S.D. New York

                      Judges: District Judge Chin

                      Citation: 2009 WL 889985 (S.D.N.Y.)

                      Background:
                      Plaintiff, James Siegel, worked for defendant, Metro-North Commuter Railroad Co. (“Metro-North”) from 1978 until his retirement in 2008. Siegel was most recently a signalman.

                      In either 2004 or 2005, Siegel began experiencing pain in his wrists and hands. He went to see an orthopedist, who diagnosed him with carpal tunnel syndrome (“CTS”). Eventually he had surgery. On October 11, 2005, Siegel injured his back while lifting a heavy piece of equipment. His back injury required Siegel to go to physical therapy.

                      Siegel filed suit and amended his complaint six months later. Metro-North brought a motion for summary judgment only as to Siegel’s CTS claim. They argued that no reasonable jury could find that Siegel’s CTS was caused by working for Metro-North.

                      Issue: Whether the Court will grant summary judgment for Metro-North.

                      Held:
                      Siegel failed to prove that his CTS was caused by his work for Metro-North. None of the evidence introduced was sufficient to meet Siegel’s burden of proof as to causation.

                      Siegel submitted numerous publications to the Court discussing CTS generally. This general evidence did not specifically address Siegel, his workplace, or the types of activities he did at work.

                      The Court also noted that Siegel did not submit an affidavit in opposition to the motion for summary judgment. There was no evidence from which a reasonable jury could find that Metro-North caused Siegel’s CTS. Therefore, Metro-North’s motion for summary judgment is granted.

                      Comments:

                      In a motion for summary judgment, the judge has to decide what the facts are and apply the law. When a motion is granted, the lawsuit stops and does not proceed to trial. Conversely, when a motion is denied, the lawsuit moves to trial. At trial each party has the opportunity to give their side to a judge or jury.

                      The party moving for summary judgment must prove that there are no material issues of act remaining to be tried. If there’s nothing for the jury to decide, then the moving party rhetorically asks, why have a trial? However, when a party moves for summary judgment, the judge may find that it is the other party who is entitled to judgment.

                      Steve Gordon
                      New York FELA Injury Lawyers | Railroad Worker Injuries Buffalo NY | Rochester Syracuse Albany |

                      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


                      • #12
                        Rabb v East Camden & Highland Railroad Co.

                        Case Name: Joski R. Rabb v East Camden & Highland Railroad Co.
                        Date of Judgment: 8th April 2009
                        Court: U.S.D.C. – W.D. Louisiana – Shreveport Division
                        Judge: District Judge Hicks
                        Citation: 2009 WL 960105 (W.D.La.)

                        Background:
                        Plaintiff, Joski Rabb, filed suit against the defendant, East Camden & Highland Railroad Co. (“East Camden”). On or about February 5, 2008, Rabb was injured while acting as a switchman at the Camp Minden facility owned by East Camden.

                        Rabb was working on a three-man train crew executing a “shoving” movement. The movement involved using a switch engine to shove cars down a track toward some other cars, in order to move the latter set of cars to another location. Rabb was riding the front-most right side ladder of the lead railcar when his arm struck the right half of a metal gate obstructing the right half of the truck.

                        Rabb sued East Camden for his injuries resulting from the accident under the Federal Employers’ Liability Act (“FELA”). Rabb alleged that East Camden’s negligence caused his injuries.

                        Union Pacific argued that FELA did not apply to them. Under FELA, “every common carrier by railroad while engaging commerce between any of the several States shall be liable in damages to any person suffering injuries while he is employed by such carrier.” Union Pacific contended they were not a common carrier within the FELA meaning. They moved for summary judgment.

                        Issue: Whether the Court will grant summary judgment for Union Pacific.

                        Held:
                        Rabb bore the burden of proving that FELA applied to East Camden.

                        The Court cited to Lone Star Steel Company v McGee, 380 F.3d 640 (5th Cir. 1967), which held that a common carrier is one who holds himself out to the public as engaged in the business of transportation of person or property from place to place for compensation.

                        Rabb did not demonstrate any of the characteristics described in Lone Star. There was no evidence that East Camden held themselves out to the public as a common carrier. To establish a claim under FELA, Rabb needed to prove that East Camden was a common carrier.

                        Therefore, this Court held that Rabb failed to prove that FELA applied, and East Camden’s motion for summary judgment is granted.


                        Comments:

                        A common carrier is a business that transports people, goods, or services. The business offers its services to the general public under license or authority by a regulatory body. In the present case, FELA was the regulatory body.

                        A common carrier holds itself out to provide service to the general public. Many people associate a “common carrier” with public airlines, railroads, bus lines, cruise ships, and other freight companies. Here, Rabb was trying to prove that East Camden was a common carrier under FELA. However, as stated above, Rabb failed to show that East Camden had any of the characteristics needed to be a common carrier.

                        Steve Gordon
                        http://www.gordon-elias.com/CM/FELA/...A-Overview.asp
                        Last edited by FelaGirl; 07-24-2009, 02:14 PM.

                        Comment


                        • #13
                          Jett v CSX Transportation, Inc.

                          Case Name: P.T. Jett v CSX Transportation, Inc.
                          Date of Judgment: 31st March 2009
                          Court: U.S.D.C. - E.D. Kentucky - Covington
                          Judge: District Judge Bertelsman
                          Citation: 2009 WL 899626 (E.D.Ky.)

                          Background: The plaintiff, P.T. Jett, brought suit against his former employer, defendant CSX TRansportation, Inc. ("CSX").

                          This was an action for negligence brought under the Federal Employers’ Liability Act (“FELA”). Jett worked for CSX as a switchman/brakeman and then conductor from the 1970s until 2005. During his employment, Jett performed various tasks, including operating “cut levers” to couple and uncouple the railcars.

                          In 2005, Jett underwent cardiac bypass surgery. He suffered serious complications and retired that same year. In June 2007, Jett saw an orthopedic surgeon for problems associated with his left shoulder. He was diagnosed with a torn rotator cuff and had surgery to correct it.

                          Jett filed this action in October 2007, alleging that his torn rotator cuff was the result of “wear and tear” on his shoulder, caused by CSX requiring him to operate the cut levers.

                          CSX filed a motion for summary judgment and a motion to strike the testimony of Jett’s physician.

                          Issue: (1) Whether Jett raised a triable issue as to whether CSX contributed to the "wear and tear" of his torn rotator cuff and, (2) whether the testimony of Jett's physician should be admitted.


                          Held:
                          To meet the test for causation in FELA, the employer’s actions must have played a part in causing the employee’s injury. The Court held that Jett did not meet the burden he needed to avoid summary judgment. This burden failed due to his conclusory allegations, which were unsupported by evidence.

                          Jett sought to use his doctor’s testimony as evidence of causation. CSX objected to the admission of the testimony on the grounds that Jett did not submit an expert report from his doctor in compliance with Fed.R.Civ.P. 26(a)(2)(B).

                          The Court held that Jett’s doctor’s testimony regarding causation lacked reliability. The doctor was unaware of how often Jett operated the cut levers, how much these levers weighed, and other important facts. Thus, the Court ruled that the doctor’s causation opinion lacked the scientific and factual foundation necessary for admission.

                          Thus, the Court held CSX’s motion for summary judgment is granted, as well as CSX’s motion to strike the testimony of Jett’s physician.

                          Comments:

                          The Sixth Circuit clarified the scope of Rule 26(a)(2)(B). This rule applies to treating physicians who are brought in as witnesses on the issue of causation. The Sixth Circuit held that a treating physician is not generally required to provide a written report unless he is functioning as a retained expert.

                          The Sixth Circuit addressed when an expert report is needed. Such factors include: (1) whether the physician was retained to provide expert testimony; (2) whether the physician formed his opinion on causation at the time of treatment or in anticipation of litigation; (3) whether the lack of a report would cause unnecessary depositions; and (4) whether the physician will testify to issues beyond those covered in ordinary medical training.

                          Steve Gordon
                          Kentucky FELA Attorneys | Louisville Railroad Injury Lawyers | Lexington |

                          Comment


                          • #14
                            Fletcher v Chicago Rail Link, L.L.C.

                            Case Name: William R. Fletcher v Chicago Rail Link, L.L.C.
                            Date: 28th May 2009
                            Court: 7th Circuit Court of Appeals
                            Judge: Circuit Judge Posner
                            Citation: 2009 WL 1479174 (C.A.7 (Ill.))

                            Background: The plaintiff, William Fletcher, brought suit against the defendant, Chicago Rail Link, L.L.C. ("CRL").

                            Fletcher was a railroad employee whose job required him to drive a utility vehicle that transported equipment for use in a railroad yard. He was injured in a collision with another vehicle on a street in the yard. He sued under the Federal Employers’ Liability Act, claiming the accident had been caused by the railroad’s failure to maintain the SUV in a safe condition or to warn him it was unsafe.

                            The jury awarded Fletcher damages in excess of $700,000, but also found his own negligence made him 50 percent responsible for the accident. That finding would have cut his damages in half unless a violation by his employer “of any statute enacted for the safety of employees” had contributed to the accident.

                            The judge found the exception satisfied, when CRL violated a regulation issued by the Illinois Commerce Commission that required that company motor vehicles used by railroad workers in their work be maintained in a safe condition. Thus, the judge found the exception satisfied and awarded Fletcher full damages. CRL appealed.

                            Issue: Whether the Court will uphold the lower court's grant of full damages to Fletcher.

                            Held:
                            CRL argued that only state regulations (standards, requirements, etc.) that enforce federal railroad safety laws qualify under the Department of Transportation’s regulations.

                            This Court, after looking at the Illinois Commerce Commission regulation, held that the exception was not satisfied. There was insufficient evidence to find that CRL violated the regulation.

                            This Court therefore found that Fletcher’s damages must be halved, as he was 50 percent responsible for the accident.

                            Comments:

                            A regulation is not a statute. A state statute is not a federal statute. The Supreme Court has held that the words “any statute” in 45 U.S.C. § 53 means any federal statute designed to promote railroad safety. Seaboard Air Line Ry. v Horton, 233 U.S. 492.

                            Steve Gordon
                            FELA Railroad Worker Injuries Lawyer Chicago | Illinois Attorney | Peoria IL Springfield Decatur Mount Vernon

                            Comment


                            • #15
                              Burchfield v CSX Transportation, Inc.

                              Case Name: Doug Burchfield v CSX Transportation, Inc.
                              Date: 15th May 2009
                              Court: U.S.D.C. - N.D. Georgia - Atlanta Division
                              Citation: 2009 WL 1405144 (N.D.Ga.)

                              Background: The plaintiff, Doug Burchfield, brought a personal injury action against the defendant, CSX Transportation ("CSX").

                              Burchfield was a former employee of General Mills. CSX delivered a railcar to General Mills cereal processing plant in Covington, Georgia on June 3, 2005. The railcar, AEX 7136, was loaded with grain.

                              Two days later, Burchfield and his coworker were moving railcars at the plant. Using a trackmobile, a rail mover which can be used on railroad tracks or on pavement, they first moved the AEX 7136. The railcar was equipped with an air brake and a handbrake. The coworker did not see Burchfield set the handbrake, and asked him if he had set it. Burchfield believed that he did, and the two worked downhill of the railcar.

                              Shortly after, the railcar became loose and rolled down the tracks. It collided with the trackmobile and another railcar, and all three vehicles ran over Burchfield, cutting off his legs. Burchfield could barely recall the accident, but believed he had set the handbrake, as he had done over 100 times.

                              Burchfield filed suit against CSX for damages. CSX submitted a motion for summary judgment.

                              Issue: Whether the Court will grant CSX's motion for summary judgment.

                              Held:
                              CSX contended they were entitled to summary judgment because there was no admissible evidence that Burchfield actually set the handbrake on railcar AEX 7136. Burchfield countered that he did not need to provide specific evidence that he set the handbrake; a jury could find that he set the handbrake out of habit.

                              This Court noted that Federal Rule of Evidence 406 provided that evidence of a person’s habit/routine practice was relevant and admissible. However, CSX noted that no one saw Burchfield set the handbrake, and Burchfield himself does not specifically remember doing it. Thus, the Court held that there were issues which must be decided by the jury. Thus, summary judgment for CSX was denied.

                              Comments:

                              Federal Rule of Evidence 406:
                              Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

                              Evidence of a person’s habits is highly persuasive and highly probative. Courts must exercise caution before finding actions to be habitual.

                              To establish whether an action was habitual, the Court asks how many times did the person perform the act? Was it essentially the same act every time?

                              Ultimately a Court will admit habitual evidence but try to minimize danger of prejudice and confusion.

                              Steve Gordon
                              Georgia FELA Claims Attorney | Railroad Worker Injury Lawyer GA | Atlanta Athens Augusta Savannah |

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