ON TRACK WITH
RAILWAY CLAIM SERVICES, Inc.
Volume 3 Issue 1
1st Quarter, 1997
FROM THE DIRECTOR
Lexington, TN (12/96) -Hello 1997.
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 employees.
On behalf of everyone from Railway Claim Services, Inc. I wish you the best for 1997.
VERDICTS & POINTS OF LEGAL INTEREST
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 regard.
(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. Be Prepared!
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 own negligence.
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.
BITS AND PIECES
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 800-786-5204 FAX (219) 756-1145
