1996 . . . Who would have thought it. Mergers and more mergers. Yes, 1996 was
quite a year in the railroad industry, with promises of more of the same for 1997.
And, with the sell off of feeder lines, the impact of
mergers that began (for some) and ended (for others) in 1996 will have a long term affect.
1996 also started out as the year of disasters, not only in the rail industry but the
airline industry. At least on the railroad side we can look back and marvel at how
two very strong and capable regional railroads (Wisconsin Central and Montana Rail Link)
managed two of the longest derailments with evacuations very successfully (27 days and 21
days respectively). Railway Claim Services, Inc. (RCSI) provided the manpower and
the claims management expertise, but the laurels go to Wisconsin Central and Montana Rail
Link for their foresight and pre-planning.
Highway grade crossing fatalities decreased over 30% during the first half of 1996.
According to the FRA this represents a continued trend, commencing over the last
four years. In 1995 there were 301 deaths during the first half of the year.
In the first half of 1996 there were 209 people killed in crossing accidents.
There are changes in accident reporting thresholds . . . effective January 01,
1997. The FRA has published a final rule increasing the monetary threshold for
reporting rail equipment accidents/incidents involving railroad property from $6,300 to
$6,500. The reporting threshold was last adjusted in 1990. A copy of the
Federal Register notice can be secured by members from either the ASLRA or AAR.
Safety. Among transportation industry employees, rail workers have the lowest
rate of job injuries resulting in lost workdays. According to the Bureau of Labor
Statistics and the AAR, 4.3% of full-time railroad workers sustained lost time injuries,
in 1995 (the latest for which statistics are available). This compares to 5.8% for
inter-city bus workers, 8.3% for trucking company employees and 8.7% for airline
On behalf of everyone from Railway Claim Services, Inc. I wish you the best for 1997.
We need to revisit two recent Supreme Court decisions. In the past two
newsletters I talked about Hiles v. Norfolk and Western Ry. Co. This was the case in
which the Supreme Court ruled that the mere fact that drawbars fail to couple is not an
automatic violation of the Safety Appliance Act. Many of us had interpreted this as
to require proof of a defect in the coupler when making a claim for injury due to aligning
a drawbar. Not necessarily. Three days after ruling in the Hiles case,
the Supreme Court denied certiorari in another similar case, DeBiasio v. Illinois Central
Railroad. Similar, but not identical. In DeBiasio, the worker was injured when
he reached between two cars to open an knuckle after the two cars had failed to couple
automatically. Claiming a violation of the Safety Appliance Act, DeBiasio
brought suit against the ICRR and was awarded a plaintiff's verdict of $4.2 million.
Testimony in the trial indicated that a prior attempt to couple the two cars had
failed. Even though there was no proof that either of the couplers was defective,
the Supreme Court denied certiorari. Why? Well, the SAA certainly imposes
strict liability for injuries caused by failure of cars to automatically couple on impact.
The importance of Hiles is that the railroads do have the ability to correct any potential
problems which could prevent the automatic coupling. However, once a coupling
attempt has been made, and fails, it is reasonable to assume that there was a defect and
corresponding violation of the SAA. The burden of proof in such a situation would
then fall on the railroad to prove the lack of a defect. The only proof available,
and there are actually two of these, would be misaligned drawbars, or the fact that the
knuckles on both drawbars were closed prior to impact. If neither of these can be
proven, the plaintiff stands a good chance of proving a violation of the SAA.
The other case I need to mention is Easterwood. Plaintiff's attorneys
nationwide have been looking for ways to loosen the restraints placed on them by the
Supreme Court's Easterwood ruling. It appears that they have made some headway, at
least according to the Eleventh Circuit. Plaintiff attorneys now have three ways to
circumvent the issue of train speed preemption in the Easterwood decision in certain
circumstances. They are as follows:
(1) Speed - Ordinarily, if the train is traveling at or below the speed
restrictions dictated by the FRA, the issue of excessive speed is pre-empted.
Unfortunately, there is an exception. A plaintiff might be able to nullify this
preemption if it can be shown that the train had a duty to slow or stop to avoid a
specific, individual hazard. For instance, nonfunctioning or improperly functioning
warning devices at the crossing. The plaintiff would have to show that the
Railroad and/or the train crew had been placed on notice, or otherwise should have been
aware of this problem. Weather conditions might also present conditions causing a
specific, individual hazard. Ice storms or heavy fog might apply. There
are a number of circumstances which could be claimed by plaintiff attorneys to present the
specific, individual hazards necessary to nullify preemption on the issue of speed.
Your claims specialist needs to be creative in recognizing potential problems in this
(2) Maintenance of Warning Devices - The design and installation of warning
devices is preempted if any federal funds have been expended in this regard. The
loophole here involves "maintenance" of those warning devices. As I
mentioned earlier, if the warning devices are improperly functioning, this may constitute
a specific and individual hazard. It may also be possible for plaintiff attorneys to
show that the Railroad inadequately or improperly maintained the warning device, and that
this negligent maintenance created a circumstance in which the normal speed of the train
was excessive. I believe this would be difficult to prove, but I would strongly
recommend that you review your maintenance procedures to insure that they are adequate and
that all required records are current and complete.
(3) Compliance with Regulations - Preemption applies if federal funds are
expended in the design and/or installation of the warning devices. This preemption
may be lost if the device fails to comply with federal regulations. If the device is
located too close to the highway or too far from the rail, or if the gate is too short,or
if the lights are too high or the lenses too small. Any violation of federal
regulations may give the plaintiff's attorney an excuse to claim a uniquely
dangerous local condition and an exemption from the blanket preemption of speed claims.
Again, this is something your claims manager should be aware of. Never assume
that because you have lights and gates at a crossing, you are immune from a claim.
Now, to show you why you should be prepared, let's review a few recent verdicts.
FELA - BNRR - Engineer injured in head-on collision. Railroad
admitted liability and lets jury decide damages. Jury says it's worth $4.75 million.
FELA - SSW & SP - Engineer collided with a cut of cars on what
should have been a clear track. Suffered injury to his neck, wrist and knee.
The jury says this one is worth $2.08 million.
FELA - DRGW - Engineer suffers a disc herniation while attempting to
operate a stuck handbrake. The jury compensates him to the tune of $1.45 million.
FELA - LIRR - Section worker trips on debris while replacing crosstie
and suffers two disc herniations. He is unable to return to gainful employment.
The jury awards $3.75 million, but reduces this to $3.375 for the section worker's
XING - NS - Three die in crossing accident at dual track.
Eastbound train passes and pickup truck is struck when it pulls into the path of the
westbound train. Total verdict is $4.76 million.
TRESPASSER - NRPC - Trespasser entered a train station that had been
closed for 35years and attempted to cross the tracks. He was struck by a train and
suffered severe brain damage and resultant coma. His guardians sued and were able to
prove that the Railroad knew of frequent trespasser activity at this station and had not
taken steps to prevent this. The jury awarded $7.5 million.
FELA - BNRR - Carman claims exposure to asbestos during 38 year career
resulted in asbestosis. Claims Railroad should have taken steps to prevent this
exposure. Jury agrees and awards $3 million.
FELA - CSX - Ballast walkway collapses, causing conductor incur
traumatic hernia and cervical disc herniation. $2.5 million verdict.
FELA - N&W - Conductor suffers disc herniation while attempting to
operate switch. Unable to return to work. Jury awards $1 million.
XING - CR - Collision at crossbuck protected crossing. Ohio man
suffers severe brain damage. Jury awards gross verdict of $3.6 million but reduces
by 35% for plaintiff's own negligence. Net award of $2.34 million.
For those of you who were not keeping track, we have just covered 10 cases which cost
our industry $32.755 million. I could have listed a dozen more cases.
I have two very interesting court decisions to share with you. The first may be
of some help in current or pending lawsuits. It concerns expert testimony.
Ask your defense counsel to take a look at Judy Zarecki v. National Railroad
Passenger Corp., U.S. District Court, Northern District of Illinois, Case No. 95 C 1075.
The plaintiff in this case worked for 12 years as an Amtrak reservations agent.
During that time, she complained several times to co-workers about the working
conditions, but made no complaints to supervision. After 9 years employment, she was
diagnosed with carpal tunnel syndrome. Three years later she sued Amtrak.
Amtrak hired an ergonomist as an expert. He examined the workplace, looking for the
risk factors associated with carpal tunnel syndrome. He found them essentially
absent and testified to that fact. Plaintiff relied on the treating physician as
their expert. He testified that it was his opinion, based on a reasonable degree of
medical certainty that plaintiff's carpal tunnel syndrome was caused by her work
duties. Amtrak moved for summary judgment, which was granted by the court. The
court found that the doctor's testimony was inadmissible under the two part test set forth
under Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993), i.e. does the
testimony pertain to scientific knowledge and does the testimony fit the issue which is
being tried. The doctor's testimony fell short on the first part because it was not
based on any discernible scientific methodology, and on the second part because it did not
set forth any facts on which it was based. Anyone who has attended a trial in which
the plaintiff's doctor has testified has heard a question, similar to the following, posed
by plaintiff's attorney, "Doctor, is it your opinion, based on a reasonable degree of
medical certainty that Mr. Smith's disc herniation at L5, S1 was caused by his fall on
June 6, 1996 while employed as a track inspector?" Do not allow this type of
testimony to go unchallenged. If you have an expert who can refute this, based on
scientific knowledge and specific facts, your odds of getting a defense verdict and
greatly enhanced. Go for it. The second court decision has to do with the
validity of a release, specifically those releases which cover all past, present and
future claims. They do not hold up well in court. Ask your attorney to take a
look at Lanzy Wilson v. CSX Transportation, U.S.Court of Appeals, Sixth Circuit, Case No.
94-6475. In this case, we had a worker who settled a claim for work related lung
disease in 1991. The release covered "all claims for occupational disease or
personal injury now known to have resulted or suspected to have resulted...and also for
all known and unknown, manifested or unmanifested, suspected and unanticipated diseases or
injuries to the respiratory system.." The plaintiff returned to work after
signing this release, and was exposed to the same elements. Afte three years, he
filed suit for the same conditions. The Railroad moved for a summary judgment which
was granted by the district court. The plaintiff appealed and the appeals court
reversed the judgment, saying in part that permitting employers to obtain releases which
would exempt them from future conduct would enable them to treat their employees with
impunity and thereby contravene the general purpose of FELA. This would not have
been a difficult decision to anticipate. This is pretty much the same thing we have
all faced with employees claiming exacerbation of old injuries. We can use usually
use the old claim as an offset, but I cannot recall ever having been able to deny a claim
based on its similarity to a past claim on which settlement has been made. As I bring this
newsletter to a close, I would like to wish each of you a very happy, safe and profitable
1997. One final thought to keep in mind.
Always remember that you can't tell which way the train went by looking at its tracks!
RCSI welcomes your input. If you have any questions or comments of interest to our
industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901)
967-1788. Railway Claim Services, Inc. is the recognized leader in independent
railroad claims management, which includes investigation, negotiations, and all those
things in between. If RCSI is not already a partner in your loss control and claims
management program are you accepting too much risk? Railway Claim Services, Inc. 7870
Broadway St. Suite H Merrillville, IN 46410
FAX (219) 756-1145