September 29, 2009
Welcome to the September 29, 2009 issue of Rail Update, the copyrighted and trademarked e-newsletter on developments in Federal Railroad Administration regulations and state and federal court decisions of interest to rail
industry personnel. It is written, edited, and produced by Frederick B. Goldsmith
and E. Richard Ogrodowski of Goldsmith & Ogrodowski, LLC, based in Pittsburgh, Pennsylvania, U.S.A.
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This issue’s photo depicts a train
including NS and Conrail open hopper cars crossing the Ohio
Connecting Railroad Bridge over Brunot Island and the Ohio River
near downtown Pittsburgh, Pennsylvania.
G&O Personnel News
On July 14, 2009, Fred Goldsmith co-moderated a continuing legal education seminar entitled, "PLAIN TALK ON DEPOSITIONS: Four Judges Speak to State and Federal Court Deposition Practice and Strategy in Discovery and Trial in Western Pennsylvania." Sponsors of the program
were the Allegheny County Bar Association’s Federal Court Section, the Judges of the U.S. District Court for the Western District of Pennsylvania, and the Pennsylvania Bar Association’s Federal Practice Committee.
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Recent Federal Railroad Administration Notices in the Federal Register
None
of note this issue.
Recent State & Federal Court Railroad Decisions
U.S. Sixth Circuit Court of Appeals: Railroad Did Not Violate Hazardous Materials Transportation Act
In Borger v. CSX Transportation, Inc., 571 F.3d 559 (6th Cir. July 8, 2009), an engineer and conductor of a southbound train to Cincinnati, Ohio, alleged injuries from exposure to hydrochloric acid fumes emanating from a northbound train. Both sued CSX under the FELA. The Sixth Circuit affirmed the trial court's entry of summary judgment in favor of CSX on the basis that: (1) CSX complied with federal regulations under the Hazardous Materials Transportation Act,
because, among other things, the CSX car inspector properly inspected the tank car carrying the hydrochloric acid prior to its departure by visually observing the valves, ports, discharge pipes, hatches, latches, and other equipment on the tank cars while completing his brake inspection and (2) there was no evidence CSX's pre-departure visual inspection of the northbound train fell below the standard of a reasonably prudent railroad inspection or that prescribed by the Hazardous Materials Transportation Act.
California Federal District Court: FELA, LIA, & FRSA Don't Preempt
Railroad Engineer's State Claim of Disability Discrimination and
Accommodation
In Glow v. Union Pacific Railroad Co., 2009 WL 2731020 (E.D. Cal. Aug. 26, 2009), locomotive engineer
David Glow filed suit under the FELA, LIA, and the California Fair Employment and Housing Act,
claiming a spinal injury caused by the condition of the equipment in some of Union Pacific's trains. Glow's physician faxed an evaluation of Glow to Union Pacific in July 2007 in which he concluded Glow needed a seat with a head restraint or headrest, air-ride or hydraulic system, and adequate, cushioned arm supports. Union Pacific responded that this request was unrealistic due to the fact Glow, as an engineer, might be required to operate any one of its 8,000 locomotives; however, Union Pacific offered to purchase seat supports for Glow to use at work and for personal use. Glow wrote Union Pacific asking for additional information on the seat supports to which Union Pacific directed him to a website. This case is noteworthy in that the district court held that the FELA, LIA, and FRSA do not preempt Glow's state claims for disability discrimination and accommodation under the California Fair Employment and Housing Act. Nevertheless, because Glow failed to follow-up on Union Pacific's offer of an accommodation (the seat supports), the district court granted summary judgment on the state-based claim.
Tennessee Court of Appeals: Trial Court's Failure to Give Jury Instruction on "Genuine and Serious" Standard for Fear-of-Cancer Damages Not Harmless Error
In Hensley v. CSX
Transportation, Inc., 2009 WL 2615849 (Tenn. Ct. App. Aug. 26,
2009), the Tennessee Court of Appeals, on remand from the U.S.
Supreme Court, held that the trial court's refusal to give two jury
instructions CSX requested related to Plaintiff Thurston
Hensley's lawsuit for his fear of developing lung cancer was not
harmless error and remanded the case to the trial court for a new
trial solely limited to the issue of damages. The jury instructions
CSX requested in the initial trial included one stating that
Hensley's fear must be genuine and serious, see Norfolk &
Western R. Co. v. Ayers, 538 U.S. 135, 123 S. Ct. 1210 (2003),
and the other outlining factors for the jury to consider in applying
the Ayers standard. Hensley, employed by CSX as an
electrician, sought pain and suffering damages from CSX based on,
among other things, his fear of developing lung cancer. He sued
under the FELA. In the initial trial, the jury awarded Hensley $5
million, which the U.S. Supreme subsequently reversed, see CSX
Transportation, Inc. v. Hensley, 129 S. Ct. 2139 (June 1,
2009), when it found the trial court committed "clear error" in
failing to give the jury instructions on Hensley's fear of
developing lung cancer.
Oregon Federal District Court: Fact Issue Exists on Whether Railroad Employee Has Duty to
Relocate to Mitigate Damages
In Preston v. BNSF Railway Co., 2009 WL 2731154 (D. Or. Aug. 28, 2009), Matthew Preston filed suit against BNSF under the FELA. Due to his alleged injuries, Preston maintained he could not continue in his current job. BNSF offered vocational rehabilitation services to him and encouraged him to apply for positions outside his home of Klamath Falls, Oregon,
as did not have any jobs available in Klamath Falls that Preston could perform. Preston filed a motion for summary judgment arguing
he had no duty to relocate to mitigate his potential damages. In denying the motion, the district court held that it is for the jury to decide whether Preston's not moving to another location for a job with BNSF constitutes a failure to mitigate damages.
Tennessee Federal District Court: Plaintiff's Complaint Fails to Allege Essential Facts and Would Be Dismissed if Not Amended
In Willis v. CSX Transportation, Inc., 2009 WL 2601862 (E.D. Tenn. Aug. 21, 2009), the district court found that Bruce Willis' Complaint, seeking damages under the FELA, in which he alleged he fell when dismounting a CSX locomotive, did not contain essential facts necessary to support his claim. Relying on recent U.S. Supreme Court cases addressing the necessary factual specificity needed in a
federal court complaint, the district court found that Willis' Complaint did not provide any context for what the allegedly unsafe conditions on the locomotive were, how he injured himself, or how CSX was negligent. The district court further stated it would dismiss Willis' Complaint unless Willis amended it to include the necessary factual specificity to support his FELA claim.
Pennsylvania Superior Court: Upholds $3.15 Million Verdict to Amtrak Lineman
In Callahan v. National Railroad Passenger Corp., 2009 WL 2025703 (Pa. Super. July 14, 2009), a case tried in Philadelphia County, Henry Callahan fell about 40 feet from a catenary pole at or near the Richmond substation in Philadelphia. Callahan attributed his fall to a gap in the rungs on the ladder built into the pole. The jury found Callahan 30% liable, which comparative fault was factored-into the above verdict. The appellate court agreed with the trial judge's decision to allow Callahan's expert to testify about OSHA regulations on ladder rung spacing and fall protection for persons climbing ladders. The appeals court held that while the Federal Railroad Administration could have issued regulations which would have preempted OSHA regulations, the FRA failed to issue any regulations on catenary poles and ladders.
Illinois Federal District Court: Plaintiff Sanctioned for Nondisclosure of Prior Rail Injuries and Suits
In Gibbs v. Union Pacific R.R. Co., 2009 WL 2143772 (S.D.Ill. July 15, 2009), David Gibbs sued UP claiming while
working in signal maintenance for the railroad, claiming injuries to
his back, hips, and legs and that he suffered cumulative trauma to his neck, left arm, and left elbow from the constant manual labor he had to perform on the job. The trial court found, though, that Gibbs
"attempted to conceal his prior back injuries throughout the discovery process" and that while "Gibbs consistently denied or minimized any prior back pain, records obtained by Union Pacific show that Gibbs sustained a serious back injury in 1986 that no reasonable person would be able to simply forget." The court also found that Gibbs tried in his original interrogatory answers to hide a prior lawsuit he had filed against Burlington Northern, even though he tried to ameliorate the omission in amended answers served just before his deposition (it is difficult for the Court to believe that Gibbs merely forgot that he previously filed two claims against another railroad involving personal injuries). While UP sought dismissal of Gibb's current suit as
a sanction for his discovery violations, the court only awarded UP certain of its attorney's fees, under Rule 26 of the Federal Rules of Civil Procedure and the court's inherent authority to impose sanctions when a party has abused the judicial system.
Lagniappe
Post-Accident Checklist:
-
If you or others are injured, call 911 for EMS and, if applicable,
local or state police, sheriff, etc.
-
If no EMS/hospital treatment is obtained, see your own doctor or
hospital Emergency Room
ASAP, as your medical condition indicates.
-
Get photos,
even with a cell phone camera, of the accident scene, vehicles, equipment,
products, involved.
-
If possible,
preserve the accident scene and any vehicles, equipment, or products, involved,
until it can be investigated.
-
Write down
the name, address, and phone number of all witnesses.
-
Immediately report
the accident orally and in writing, describing the highlights of how
all persons, vehicles, equipment, and/or products played a part.
-
Try to avoid
discussing the accident or giving a written or recorded statement until
you have the opportunity to talk to your lawyer. You can call G&O 24/7 toll free at
1-877-404-6529.
-
If a motor vehicle accident, report
it to your insurance company (but see #7),
exchange vehicle, driver, insurance information.
Reader Feedback
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Rich Ogrodowski or
Fred Goldsmith.
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