ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 11 Issue 3                                                                July, 2004

 

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

CROSSING INCIDENTS DOWN IN 2003

QUOTES ABOUT DOGS

FRA PROPOSED RULE TO LIMIT WORKERS’ EXPOSURE TO NOISE

QUOTES OF LIFE

THIS AND THAT ACROSS THE COUNTRY

UPCOMING MEETINGS

POINTS OF LEGAL INTEREST

RCSI INFORMATION

 

CROSSING INCIDENTS DOWN IN 2003

According to data from the FRA, highway-rail grade crossing incidents were down for 2003. The total number of incidents for 2003 was 2,924, down 5.0 percent from 2002 and 9.7 percent lower than 2001. To view statistics on grade crossing incidents by state, region, railroad, and / or road type click on the following web address: http://safetydata.fra.dot.gov/OfficeofSafety/Query/Default.asp?page=gxrtally1.asp

 

QUOTES ABOUT DOGS

If you pick up a starving dog and make him prosperous, he will not bite you; that is the principal difference between a dog and a man. Mark Twain

The reason a dog has so many friends is that he wags his tail instead of his tongue. Anonymous

Don't accept your dog's admiration as conclusive evidence that you are wonderful. Ann Landers

If there are no dogs in Heaven, then when I die I want to go where they went. Will Rogers

A dog is the only thing on earth that loves you more than he loves himself. Josh Billings

The average dog is a nicer person than the average person. Andy Rooney

If I have any beliefs about immortality, it is that certain dogs I have known will go to heaven, and very, very few persons. James Thurber

Ever consider what our dogs must think of us? I mean, here we come back from a grocery store with the most amazing haul -- chicken, pork, half a cow. They must think we're the greatest hunters on earth! Anne Tyler

You can say any foolish thing to a dog, and the dog will give you a look that says, 'Wow, you're right! I never would've thought of that!' Dave Barry

 

FRA PROPOSED RULE TO LIMIT WORKERS’ EXPOSURE TO UNNECESARY TRAIN NOISE

In June The Federal Railroad Administration proposed a rule aimed at reducing train crews' exposure to unnecessary noise and preventing engineers' hearing loss in locomotive cabs. The administration issued a notice of proposed rulemaking entitled "Occupational Noise Exposure for Railroad Operating Employees."

The rule would require manufacturers to design and build locomotives with quieter cabs, and railroads to maintain the power units to new standards. The rule also would support some noise reduction features already included in new locomotives, such as better insulation, relocation of air-brake exhaust piping and less-vibrating cab equipment.

In addition, the rule would require train crews to use hearing protection devices and mandate that railroads provide hearing-loss prevention training, implement hearing conservation programs and conduct regular noise monitoring.

The Railroad Safety Advisory Committee — a rulemaking body comprising representatives from the FRA, Association of American Railroads, railroad industry, rail labor and suppliers — examined occupational noise and recommended that FRA update existing regulations.

"The safety of employees is very important to the railroads, and the industry has already voluntarily taken many actions to limit exposure to unnecessary noise," said AAR President and Chief Executive Officer Edward Hamberger. "We believe that conducting hearing tests for trainmen and conductors — as is already done for locomotive engineers — will further enhance their personal safety.

 

QUOTES OF LIFE

You never get ahead of anyone as long as you try to get even with him. Lou Holtz

Wisdom is the reward you get for a lifetime of listening when you’d have preferred to talk. Doug Larson

When in doubt, tell the truth. Mark Twain

Pay attention to your enemies, for they are the first to discover your mistakes. ANTISTHENES (c. 445-365 B.C.) Philosopher

 

THIS AND THAT ACROSS THE COUNTRY


Washington, D.C. Senate leaders have decided to postpone consideration of a class action reform bill until they finish work on a contentious defense authorization bill. Senate Majority Leader Bill Frist, R-TN., had originally scheduled a cloture vote to limit preliminary debate on S. 2062, the Class Action Fairness Act, for early June. The bill would, among other things, allow the transfer to federal court from state court of certain class actions involving defendants and plaintiffs from different states.

But several Democratic supporters of the bill said that they would vote against cloture unless work proceeded on an unrelated defense bill. Without the support of the Democrats, the bill would fall far short of the 60 votes needed to invoke cloture and end preliminary debate.

Senator Frist agreed to delay consideration of the business-backed class action bill, with the understanding that it would be the first order of business upon completion of the defense bill. The agreement means that senators will proceed directly to consideration of the bill without having to deal with a cloture vote.

Reno, Nevada. The mother of a 19-year-old killed in a traffic accident is suing Coors Brewing Co., claiming that it promotes underage drinking. Jodie Pisco, of Reno, contends Coors has failed in its duty to protect the country's youth from drinking. Her son, Ryan, was killed in 2002 after he drank Coors at a party and drove his girlfriend's car into a light pole at 90 mph, the lawsuit says.

The lawsuit, filed in April, in Washoe County District Court, seeks unspecified damages. It accused Coors of "glorifying a culture of youth, sex and glamour while hiding the dangers of alcohol abuse and addiction."

Laura Sankey, a spokeswoman for Golden, Colorado-based Coors, said that although she could not comment on pending litigation, the company "doesn't want underage consumers -- period."

"Tragedies like this further reinforce why the fight against underage drinking and drunk driving must continue," Sankey told the Reno Gazette-Journal. Also named in the suit were Ryan Pisco's girlfriend and her mother. The lawsuit alleges the girlfriend allowed Pisco, who lacked a valid driver's license, to drive off in her car, which had been given to her by her mother.

Washington, D.C. The Senate Republican leadership introduced an asbestos liability reform bill late April that would create a $114 billion trust fund to compensate victims of asbestos-related illnesses. Under the latest version of the Fairness in Asbestos Injury Resolution Act, insurers’ contribution to the fund would be $46 billion, with the rest provided by corporate asbestos defendants. Corporate defendants would pay a further $10 billion to the fund if there were insufficient funds to meet claims. The bill, which was introduced by Senate Majority Leader Bill Frist, R-Tennessee, and Senator Orrin Hatch, R-Utah, differs from earlier versions in several ways. For example, under the latest version of the bill, the fund would be administered by the U.S. Department of Labor rather than by a court administrator. Last summer, the Senate Judiciary Committee passed an earlier version of the FAIR Act, but it failed to garner sufficient support to pass the full Senate.

San Francisco, CA. Tobacco companies have won the reversal of a $21.7 million award to a smoker who developed lung cancer after a 25-year smoking habit. The California Court of Appeal on April 7 overturned the award reached by a state court jury in March 2000 against R.J. Reynolds Tobacco Co. and Philip Morris Inc. The court ordered a new trial on the basis that the jury was not properly informed about a statutory immunity period protecting tobacco companies from litigation in California.

The jury awarded $20 million in punitive damages and $1.7 million in compensatory damages to Leslie J. Whiteley. Ms. Whiteley and her husband claimed that her cancer was caused by smoking and that cigarette makers misled the public about the dangers of smoking. Ms. Whiteley died in July 2000 at age 40.

“We are confident that we will prevail if this case is retried,” Mark Holton, vp and assistant general counsel for R.J. Reynolds, said in a statement. Mr. Holton said the tobacco company will show “what jurors and everyone plainly know-that smokers have long been aware of the significant, inherent risks of smoking, and that people who choose to smoke in the face of these known risks should not be financially rewarded.”

FT. Worth, Texas. BNSF Requires New Hires to Sign Waiver of Privilege Relative to Medical Information. BNSF is now requiring its new hires to sign, "I agree on behalf of myself, my heirs and personal representatives, that in the event of any claim or litigation involving this Company in which mental or physical condition is an issue, any physician, surgeon, hospital, clinic, Veteran's Administration or other person or agencies may furnish to this Company any facts or records concerning same, whether derived from confidential relations or otherwise and freely testify in any court to the same and I expressly waive the benefits and ANY state or federal law where such information is consider wholly or partially privileged."

Waldo, Arkansas. A Federal Appeals Court has struck down an award of $8 million against Union Pacific. The original verdict arises out of injuries to John Morris, a wrecker-service operator from Waldo, Arkansas, on November 8, 1999. On June 28, 2004 The 8th U.S. Circuit Court of Appeals at St. Louis sent the case back to Federal District Court in Arkansas to retry the lawsuit. A three-judge panel of the Appeals Court said the lower court should not have instructed jurors that the Union Pacific Railroad destroyed audio-taped evidence in bad faith. In the lawsuit, Morris claimed he suffered a fractured skull and brain injuries when a UP train moved unexpectedly after his wrecker service was called to haul away a truck that had collided with a train on some Waldo tracks.

Morris, 55 at the time of the accident, was standing between a train car and a United Parcel Service truck trailer, assessing how best to remove the trailer, when the train moved, pulling Morris' head into an opening between the two vehicles, reportedly squeezing it.

The Appeals Court agreed with most of the jury's findings of U.S. District Judge Harry Barnes’ Court in El Dorado, but the Federal Appeals Court disagreed with Barnes' decision to instruct the jury about the destroyed audiotape. The railroad said such tapes are routinely taped over every 90 days, but Judge Barnes still found that the tapes were destroyed in bad faith, based on a previous federal case, also involving Union Pacific.

The Appeals Court said “bad faith” was exhibited in the previous case because Union Pacific destroyed the tape while also actively preserving other pieces of evidence that would help the company in court. But the Appeals Court said no other evidence was maintained in the Morris case, making Barnes' “bad faith” label too strong.

“The distinction between the cases may be modest, but (the previous case) ‘tested the limits’ of what evidence will justify a (jury instruction),” the Appeals Court wrote.

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

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

General Claims Conference, September 8-10, 2004, Ponte Vedra Beach, Florida

 

POINTS OF LEGAL INTEREST

Illinois Jury Returns $1.75 Million, injury to BNSF Employee. The BNSF track foreman was struck by a BNSF train that knocked him down fracturing his ankle and caused degloving. Multiple surgeries followed. Plaintiff eventually had a fusion of his ankle which resulted in a permanent limp preventing him from returning to work. The district court granted summary judgment on the issue of liability, as it found that the railroad violated FRA regulations when a co-worker failed to refuse to act as a lookout when he was not qualified to do so. The case was tried on the issue of damages only. The railroad claimed that plaintiff refused to mitigate his damages by turning down a job offer as a yard inspector. According to Cook County Jury Verdict Reporter, the jury awarded plaintiff $1.75 million. Jesus Martinez v. Burlington Northern & Santa Fe Railway Co., U.S. District Court, Northern District of Illinois, Case No. OOC-2723.

 

Defense Crossing Accident Verdict in Illinois. The 59-year-old plaintiff was driving his tractor-trailer across a crossing when he was struck by an east-bound train. He suffered a T-5 compression fracture, torn rotator cuff and lacerations to the head which required some 300 stitches. The defense claimed that plaintiff failed to stop at a stop sign and yield the right of way. According to Il­linois Jury Verdict Reporter, the jury returned a defense verdict. Leon Madey v. I&M Rail Link L.L.C., DeKalb County (IL) Circuit Court, Case No. OIL-65. James D. Helenhouse and Andrew L. Hughes of Fletcher and Sippel, Chi­cago, IL for defendants.

 

Passenger Verdict in New York. $19.142 Million Verdict in New York resulting from a Man Dragged Over 400 Feet After Arm Was Caught in Subway Door. The 24-year-old plaintiff, a stock clerk, had been drinking at a friend's house, when he and two other friends decided to return to Manhattan via the E train. The three friends went to the Queens Plaza station. Ac­cording to plaintiff and his friends, they were followed by three older men who attempted to rob them while they walked on the platform. Once on the train the alleged robbers demanded jackets, wallets and jewelry. In little more than a minute the train came to the 23rd Street/Ely Avenue stop. Plaintiff and one friend exited the car in an attempt to flee. The third friend remained in the grasp of the alleged robbers. According to plaintiffs' friends, plaintiff reached back into the car in a rescue attempt and the door closed. Plaintiff was dragged some 400 feet to the end of the station, hit the wall, fell to the tracks and was run over by the train. Amputation of the third, fourth, fifth fingers and a portion of the hand was required. Plaintiff also suffered scarring of the left thigh and left forearm.

Plaintiff sued the transit authority, claiming that the conductor failed to look as the doors were closing and before the train started to ensure that no one was caught in the doors. That failure, plaintiff claimed, violated Rule 87R of the transit authority's rules and regulations. The conductor, who was in the fifth car of an eight-car train, testified that he fulfilled his required duty. According to the conductor, plaintiff and another friend were "clowning around" on the platform but were not in contact with the train. When he looked a second time, according to the conductor, plaintiff had somehow be­come "attached" to the train. The conductor said that he then pulled the emergency brake. According to plaintiffs expert, the subway doors did not have to fully close. Rather, the expert testified the doors could remain open up to 2.5 or 3 inches and the train could proceed. Railroad witnesses claimed that the sensors involved would not allow the train to move if something as thin as a knife were inserted in the door. According to published accounts, the jury found in favor of plaintiff for $19,142,000. Fault was apportioned fifty percent to plaintiff and fifty percent to defendant. Aris Gil v. New York City Transit Authority, Queens County (NY) Supreme Court, Index No. 9079/01.

$3 Million Verdict against Union Pacific, St. Louis Jury. The 31-year-old plaintiff was climbing into a railroad car in Kansas City, when he was struck in the head by a five-pound metal sign. The sign allegedly had come loose weeks earlier and had not yet been pinned down. Plaintiff was dazed but not unconscious, and was subsequently treated by eleven different physicians. The plaintiff claimed headaches which were not successfully treated, and the railroad claimed that there were no objective findings (in­cluding CAT scans and MRI results) which would support the claim of headaches of such severity. The jury returned a verdict in favor of plaintiff for $3 million. Gregory Haskin v. Union Pacific Railroad Co., St. Louis City (MO) Circuit Court, Case No. 022-10401.

Defense Verdict for Norfolk Southern. According to the Greater Kansas City Jury Verdict Service the 53-year-old sub-contractor, was working on a construc­tion job in defendant's rail yard when he was struck by a large chunk of dirt that fell off a dump truck. The plaintiff sustained a fracture of the tibial plateau which required open reduction and a follow up second surgery. The plaintiff blamed the railroad for requir­ing laborers to work in inclement weather with ice and snow on the ground. The jury returned a defense verdict. Branson v. Norfolk Southern Railroad, Clay County (MO) Circuit Court, Case No. CV1024279cc. B. William Jacob for defendant.

Arkansas State Supreme Court Af­firms $25 Million Punitive and $5.1 Million Compensatory Damage Verdict Against Union Pacific. An earlier Arkansas jury awarded $5.1 million for compensatory damages and by special interrogatory found that the railroad acted with malice or in reckless dis­regard of the consequences, thereby establishing liability for a punitive damage award in the amount of $25 million.

The majority for the Arkansas Supreme Court concluded that “there was ample evidence that Crossing 123 was hazardous and that Union Pa­cific was on notice of its condition. Here, direct evidence reflects that Union Pacific was notified of an imminent danger at Crossing 123.” The majority rejected the railroad’s claim that the punitive damage award was excessive. The majority agreed with plaintiffs' assertion that this case reflects the development of a corporate policy at Union Pacific that put company profits before public safety." The majority pointed out that the punitive damage award of $25 mil­lion amounted to only 0.260% of the railroad's net worth. Such an award was not, the majority found, impermissible un­der BMW of North America v. Gore, 517 U.S. 559 (1996). Union Pacific Railroad v. Barber, Supreme Court of Arkan­sas, Case No. 03-57.

Defense Verdict, Crossing Accident, Texas. The 66-year-old plain­tiff’s decedent was working on a ranch when he drove his pickup over an un­marked railroad crossing where he collided with a train. His survivors sued both the railroad and its engineer, along with the owner of the ranch, alleging that vegetation obscured decedent's view and that the crossing should have had a warning sign. The property owner settled midway through trial. The jury returned a verdict in favor of the railroad and the engineer as it concluded that dece­dent was solely responsible for his own death. Garza v. Perez, Duval County (TX) District Court, Case No. DC-01-35. Belinda Boling and Merritt Clements, San Antonio, TX and Dougas E. Chaves and Joel Cruz Resendez, Corpus Christi, TX for defendants.

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.

Visit the Railway Claim Services, Inc. webpage 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 on the Web at www.railway-claim-services.com

 

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