ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 11 Issue 2                                             April, 2004

RAILWAY CLAIM SERVICES, INC.          Our 17th Year of Service

 CONGRATULATIONS

A QUOTE FOR THE AGES

GOOD ADVICE

THIS AND THAT ACROSS THE COUNTRY

RAILROAD NICKNAMES

TORT REFORM

UPCOMING MEETINGS

QUOTES ON INTEREST

POINTS OF LEGAL INTEREST

RCSI INFORMATION

 

CONGRATULATIONS

Congratulations to Northumberland , Pennsylvania based Nittany & Bald Eagle Railroad Co. as 2004 Short Line Railroad of the Year and Brewster, Ohio-based Wheeling & Lake Erie Railway Co. as 2004 Regional Railroad of the Year, as announced by Railway Age magazine on March 25, 2004 .  The awards will be presented at the annual meeting of the American Short Line and Regional Railroad Association in St. Louis on April 23.

A QUOTE FOR THE AGES 

"...That this nation, under God, shall have a new birth of freedom, and that Government of the people, by the people, for the people, shall not perish from the earth."  From Abraham Lincoln’s Gettysburg Address November 19, 1863

GOOD ADVICE

Attorney Matt Williams of Casey, Gilson & Williams P.C., of Atlanta , Georgia , advises that "when railroads use a flagman at a crossing for movement of rail equipment or other purposes, the flagman should be more than a flagman by name.  That flagman should have a flag or some other eye-catching device (have a light or a fusee at night), and should wear a vest or some other eye-catching clothing.  Too often motorist ignore or fail to see flagmen at crossings and proceed into moving equipment, into the path of the moving equipment or into other workers.  When you have to defend these type of cases, where the railroad flagman does not have proper ‘flagging equipment’ the adverse driver will invariably say that he/she saw someone present, but did not know they were flagging the crossing.”

THIS AND THAT ACROSS THE COUNTRY             

Joplin , Missouri .  On March 15, 2004 a Jasper County, Missouri (Joplin), jury awarded $18 million to a former popcorn plant worker who claimed that exposure to chemicals used in butter flavoring damaged his lungs.   The state court jury also ordered New York-based International Flavors & Fragrances Inc. to pay $2 million to the worker’s wife for loss of companionship.  A judge ruled that the jury could not award punitive damages in the case.   IFF manufactures artificial butter flavoring used by a Glister-Mary Lee Corp. popcorn plant in Missouri where Peoples worked for about 17 months.  Glister-Mary Lee was not named in the suit, but other workers at its plant also have sued IFF.  They claim that vapors containing the chemical diacetyl are responsible for lung disease.

 

Washington , D.C.   In mid March 2004 the Federal Railroad Administration released its preliminary January-to-November 2003 safety statistics, which show U.S. railroads continued to follow a trend revealed in the administration's January-to-October stats: fewer highway-rail incidents, total accidents/incidents, and employee and trespasser fatalities and injuries, but more train accidents compared with similar 2002 data.  During the 11 months, highway-rail incidents totaled 2,611, decreasing 7.8 percent compared with 2,833 during the same 2002 period.  Employee fatalities dropped 15 percent from 20 to 17; non-fatal employee injuries, 12 percent, from 6,168 to 5,430; trespasser fatalities, 6.6 percent, from 501 to 446; and non-fatal trespasser injuries, 2.7 percent, from 375 to 365.  U.S. roads also decreased total accidents/incidents 6.5 percent, from 13,260 to 12,393; total fatalities, 10.3 percent, from 881 to 790; and total non-fatal injuries, 24 percent, from 10,407 to 7,908 compared with 2002 data.  However, train accidents totaled 2,596, increasing 4.4 percent compared with 2,486 accidents during the same 2002 period. Miscellaneous and signal causes, human factors and collisions led to more accidents, increasing 18.7 percent, 10.9 percent, 10.7 percent and 8.8 percent, respectively.

 

Houston , Texas .  United Transportation Union (UTU) International President, Byron Boyd Jr., 57, pleaded guilty in March to labor racketeering charges and resigned his position with the labor group, in a Houston , Texas Court.   Authorities said Boyd extorted money and other things of value from attorneys doing business with the union.   Boyd was the fourth official of the organization to plead guilty in a labor racketeering conspiracy the FBI and Labor Department began investigating in 1999.   He could receive up to 20 years in prison and be fined up to $250,000 when he is sentenced on June 10.  His trial had been scheduled for later this month.  Boyd, of Seattle , had been president of the union since February 2001.  The union, formed in 1969, has about 125,000 members nationwide in the railroad, bus, mass transit and airline industries.  A grand jury indicted Boyd and three others in September on charges of conspiring to violate federal mail and wire fraud statutes, interstate transportation in aid of racketeering through commercial state bribery and embezzlement.  Also indicted were former union president Charles Little, 66, of Leander, Texas; former union director of insurance Ralph Dennis, 52, of Boone, Iowa, and former special assistant to Boyd, John Rookard, 58, of Olalla, Wash.   Little and Dennis had previously pleaded guilty to labor racketeering charges.  All three will be sentenced by Lake on June 10 and face the same possible prison sentence and fine as Boyd.

Little Rock , Arkansas .  Arkansas Supreme Court upholds $30 million judgment against Union Pacific.  The Arkansas Supreme Court on February 26, 2004 upheld a $30 million judgment against the Union Pacific Railroad, saying it didn't adequately clear brush along the tracks near an eastern Arkansas crossing where a man was injured in a 1998 crash.   A St. Francis County jury awarded $5.1 million in actual damages and $25 million in damages intended to punish the company in what was believed to be the largest jury award approved by the Supreme Court in the state's history.   The majority of the court said the cause of the accident was overgrown vegetation along the train tracks that obscured visibility near the crossing. The court ruled the evidence ``was sufficient to allow the jury to conclude that Union Pacific likely knew or ought to have known, in the light of surrounding circumstances, that allowing the vegetation to remain overgrown and allowing trains to pass through Crossing 123 at close to 60 miles per hour would naturally or probably result in injury, and that Union Pacific continued such conduct in reckless disregard of the consequences from which malice could be inferred.''   The Arkansas Supreme Court rejected the railroad's argument that the trial judge should not have admitted evidence of near misses at the crossing, and that the punitive damage award was excessive. The justices also noted trial testimony that the company destroyed records of dangerous conditions along the railroad within 90 days of the report, even when people died.   “Taken together under all circumstances, including the evidence that Union Pacific intentionally destroyed unfavorable evidence, we conclude that an award of punitive damages was appropriate in this case,'' Justice Annabelle Clinton Imber wrote for the majority.   According to trial testimony Christopher Barber, suffered a spinal cord injury when the Union Pacific train hit the garbage truck in which he was riding.  Barber v. Union Pacific Railroad Co. , No. CIV-98-312 (St. Francis Co., Ark. , Cir. Ct. ) Editors Note:  The Barber v. UP case was reported on in the January 2004 edition of this newsletter as # 77 on the 2003-list of large verdicts in the US .

Ft. Wayne , Indiana .   Chicago Attorney Evan Karnes advised of a an-interest decision coming out of  The 7th Circuit, Appeal, N.D. Ind., Ft. Wayne Division.  In Musser v. Gentiva Health Services, No. 03-1312 (1/28/04) the Court held that a ND Indiana US District Court decision to bar plaintiff’s treating physicians and nurses was proper when plaintiffs failed to timely disclose them as “expert” witnesses.  This was despite the fact that the plaintiffs timely disclosed the individuals, all the individuals were treating physicians or related health care providers and their records were produced to the defendants and depositions taken. Since many of the usual FELA practitioners have often identified such individuals solely as “treaters” this might provide some benefit in attacking those generic disclosures.   This case should be particularly useful as it distinguishes the 1994 7th Cir decision of Richardson v Conrail. The Musser decision held that the 1993 FRCP amendments require a specific level of disclosure even for treating physicians’ opinions and other similar health care professionals.  Musser appears to limit treating physicians’ testimony to facts from their observations of the patient, if they are not disclosed as experts and the reports and related requirements of FRCP 26 are met. Similarly, Musser will likely be expanded to apply specifically to carrier employees who render opinions beyond their specific factual observations gained in their experience or knowledge of a particular incident or course of events.

 RAILROAD NICKNAMES

 Railway Claim Services, Inc.’s Dave Gardner gave us this for consideration saying, “Some of my historic favorite nicknames for various railroad jobs in this list.  These are names that traverse the last 200 years of railroading in North America .”   We think this list is of interest to the readers of this newsletter.  The Editor

·      "Bakehead" Nickname for the Fireman, because his head was so close to the fire box while he was shoveling coal.

·      "Big C" - The Conductor.

·      "Big E" - The Engineer.

·      "Boomer" - Itinerant railroad workers, always moving from one location to another.

·      "The Brains" - The Conductor.

·      "Brass Hat" - A railway executive (usually a division manager or higher).

·      "Bull" - Railroad detective.

·      "Carman" - A person trained in the craft of inspecting and repairing railroad cars.

·      "Conductor" - Traditionally, the railroad employee who walked up and down the aisles of the passenger cars taking tickets, etc. This term was sometimes teasingly used on Brakemen who had pencils sticking out of their pockets.

·      "Dead Head" - A railroad employee traveling on a pass.

·      "Dinger" - A Yard Master.

·      "Door Slammer" - What freight trainmen called passenger trainmen.

·      "Flagman" - The rear brakeman. In the early days of railroading, to be a Flagman, the brakeman had to know how to read, so he could understand train orders, which from time to time would be changed enroute.  Most early railroad flagmen were proud of the fact that they were flagmen, which set them above their fellow brakemen that could not read.

·      "Foamers" - name given by train crews for people who gathered along the railroad tracks to watch and wave at trains.

·      "Gandy Dancer" - Name give to a railroad track worker. The name came from the Gandy Manufacturing Company in the 1800's who made a lot of track tools.

·      " Guinea " - A new worker or a worker who is not familiar with job requirements.

·      "Hoghead or Hogger" - A railroad engineer (locomotives were nicknamed "Hogs").

·      "Iron Bender" - A switchman.

·      "Lighting Slinger" - A railroad telegraph operator.

·      "Number Dummies" - Clerks who worked as yard checkers.

·      "Old Head" - Someone who does his job well.

·      "Piglet" - A locomotive engineer trainee.

·      "Skipper" - The conductor.

·      "Spotter" - A company employee charged with spying on other employees, especially in the old days when a conductor would collect cash fairs from passengers and sometimes did not turn in all the receipts to the company at the end of the trip.

 

TORT REFORM

Delaware has the fairest legal system and Mississippi the least fair, according to a study released in March 2004 by a group advocating tort reform.   The survey, conducted by Rochester, N.Y.-based Harris Interactive Inc. for the U.S. Chamber of Commerce Institute for Legal Reform, was based on the responses of 1,402 corporate attorneys interviewed between last December and February. A slight majority of those interviewed—56%—gave an overall ranking of “fair” or “poor” to the state court liability system as a whole.    Delaware and Mississippi have each held the same ranking since the first survey was released in early 2002. Nebraska , Virginia , Iowa and Idaho rounded out the five fairest states in the corporate attorneys’ opinion. The five worst, in ascending order, were Mississippi , West Virginia , Alabama , Louisiana and California .   The entire survey is available at www.legalreformnow.com.

 

UPCOMING MEETINGS (Check our Website – www.railway-claim-services.com – just click on the meeting listing for details.)

Midwest Claims Association Meeting – April 15;16, 2004, in Oakbrook , IL

2004 Annual ASLARR Meeting & Exhibition, April 22-24, 2004 , in St. Louis , MO

79th Annual Southeastern Claims Association Meeting, June 14-18, 2004 , in Charleston , SC

Railroad Liability Seminar, July 14-17, 2004 , Milwaukee , WI

 QUOTES OF INTEREST

 To know your enemy, you must become your enemy.  Keep your friends close and your enemies closer.  Sun Tzu, from his book on military strategy, "The Art of War"  Sun Tzu was a military strategist and general who lived in the 5th century BC in the state of Ch'i

They couldn't hit an elephant at this dist. . . . These were the last words of General John Sedgwick, Union Commander, just before he was killed in battle during US Civil War, 1864.

It isn’t pollution that’s harming the environment.  It’s the impurities in our air and water that are doing it.  Al Gore

We’ve got to pause and ask our selves: How much clean air do we need?  Lee Iacocca

The word ‘genius’ isn’t applicable in football.  A genius is a guy like Norman Einstein.  Joe Theisman, NFL Quarterback and Sports Analyst

Smoking kills.  If you’re killed, you’ve lost a very important part of your life.  Brooke Shields

Half the game is 99% mental.   Philadelphia Phillies Manager, Danny Ozark

I love California .  I practically grew up in Phoenix . Dan Quayle

POINTS OF LEGAL INTEREST

Safety Appliance Failure Alleged, resulting in a verdict of $1.6 Mil­lion.  A UP employee alleged he was standing on a locomotive and pulling a pin lifter in an attempt to separate railcars when the pin lifter broke, causing him to fall backward, injuring his neck and shoulders.  Disc herniation at C5-6 was diagnosed which required surgery.  A St. Louis Jury returned a verdict in favor of plaintiff for $1.6 million. Roberts v. Union Pacific Railroad, St. Louis (MO) City Circuit Court, Case

Crossings Defense Verdict in Texas .  The 38-year old plaintiff while driving a 1983 Chevrolet one-ton rebuilt dual axle pickup truck and pulling a gooseneck trailer, was crossing rails as the train's lead locomotive collided with the trailer.  The plaintiff claimed the train failed to sound its whistle on approach to the crossing.  This claim is seconded by one witness to the accident, but refuted by several more eyewitnesses.  The plaintiff also claimed that the defendant failed to comply with state regulations call­ing for clearing of vegetation around rail crossings.  The plaintiff claimed to have sustained a cervical disc herniation and low back strain, with additional post-traumatic stress disorder anxiety problems.  No surgery was required.  Background investi­gation prior to trial indicated the plaintiff had a previous significant auto accident in 1997, after which he missed one and one-half years away from work.  The plaintiff had sought damages for future medical expenses, physical pain; past and future wage loss, and physical impairment. According to the Texas Reporter, the jury returned a unanimous de­fense verdict.  The plaintiff’s motion for new trial was denied.  Oscar Grahmann v. Patrick Edward McGuire, Union Pacific Transportation Company and/or Union Pacific Railroad and The Texas Mexican Rail­way Company, De Witt County (TX) District Court, Case No. 02-03-18, 965.  Robert B. Bums, Jr., Burns, Anderson, Jury and Brenner, for Union Pacific Railroad Company. Merritt Clements, Strasburger and Price, San Antonio , TX for The Texas Mexican Railway Company and Patrick Edward McGuire.

Crossings – Spoliation Issues.  Eighth U.S. Circuit Court of Appeals Orders New Trial After $2 Million Verdict and Vacates Award of $164,410 in Attorney Fees and Costs Imposed as Sanctions Following.  The plaintiff was injured and his wife was killed in a grade crossing collision on Highway 364 in Vanndale , Arkansas , on November 6, 1998 . Suit was filed on September 20, 1999 . On October 25, 1999 , plaintiff sought discovery of audio taped communications between the train's crew and the dispatcher. The railroad opposed discovery.  It asserted that the tape did not contain discoverable information.  UP later revealed that the tape was not available, explaining that such tapes are kept for 90 days and then reused.   Based upon rulings of spoliation and instructions to the jury by the District Court a verdict was returned against UP that included sanctions.    Union Pacific took an appeal with The Eighth Circuit, and the Eight Circuit agreed with the railroad that the district court abused its discretion by not permitting UP to offer a reasonable rebuttal to the inference. The attorney fee/cost award was vacated, as the court noted that a part of the award could have been based on the pre-liti­gation destruction of the track maintenance records which was not conduct which amounted to bad faith. A new trial was ordered. Stevenson v. Union Pacific Railroad Co., 204 F.R.D. 425 (E.D.Ark. 2001).

Crossings Fatality results in $5 Million Verdict in Mississippi , after second trial.  The plaintiff’s decedent was killed when he was struck by a train at Illinois Central's Mileston crossing.  The railroad removed the case to federal court.  After an initial announcement that they were deadlocked, the jury deliberated an additional four hours.  They then found in favor of plaintiff for $5 million. Twenty-five percent contributory negligence was assessed to decedent.  Punitive damages were not submitted to the jury.  Travis v. Illinois Central Railroad, Holmes Co. (MS) Circuit Court.

 RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact either Dave Gardner or Randal Little at (731) 967-1796 or FAX your message to (731) 967-1788.

 Editor’s Note:            If you know of someone that would like to be included on or email distribution list please let us know.  

 Visit the Railway Claim Services, Inc. webpage.  It’s located at www.railway-claim-services.com

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?

For further information contact:

dave_gardner@railway-claim-services.com or  randal_little@railway-claim-services.com

Corporate Offices at:   52 South Main Street     Lexington , Tennessee   38351

Phone:  800-786-5204, Fax:  731-967-1788 or visit us

on the Web at www.railway-claim-services.com

Railway Claim Services, Inc. has offices THROUGHOUT THE UNITED STATES.