$1,000,000 VERDICT - FEDERAL EMPLOYERS’ LIABILITY ACT - MISALIGNED RAILROAD SWITCH SENDS CARS DOWN WRONG TRACK - FALL ONTO TRACK - ORTHOPEDIC INJURIES TO LEFT ARM, NECK AND LOW BACK - LUMBAR RADICULOPATHY - POST-TRUMATIC STRESS DISORDER.

U.S. District Court, Eastern District of PA

This action was filed under the Federal Employers’ Liability Act against the defendant Conrail after one of the defendant’s conductors misaligned a switch sending the railroad cars down the wrong track. The plaintiff claimed that he was knocked down onto the track and nearly struck by a locomotive which had been hit by the draft of railroad cars. The defendant conceded that its conductor was negligent, but disputed the plaintiff’s version of the accident as well as the plaintiff’s claimed injuries. The defendant also argued that the plaintiff was comparatively negligent in causing the incident.

On July 1, 1997, at 7:00 p.m., the plaintiff, then age 47, was working as a locomotive engineer in the defendant’s Oak Island Yard near Newark, NJ. The plaintiff testified he was in the process of uncoupling two locomotives and was standing between the locomotives when the conductor on another crew misaligned a switch and improperly sent a draft of cars down the track where the locomotives were stationed. The plaintiff testified that the railroad cars stuck one of the locomotives he was uncoupling, causing him to be pushed back into the locomotive behind him and then falling onto the gauge of the track. The plaintiff contended he could see the wheel of the locomotive in front of him approaching him as he lay on the rail and was able to push himself out of the gauge of the track. The plaintiff testified that he immediately ran up into the cab of the locomotive to report the emergency over the radio. The locomotives were ultimately pushed approximately two car lengths before coming to a stop.

As a result of the accident, the plaintiff claimed to have sustained injuries to his left arm, neck and lower back. Testimony indicated that the plaintiff's left arm and neck injuries had resolved, but that he continues to have lower back complaints and was diagnosed with right-sided lumbar radiculopathy.

The plaintiff testified that immediately after the incident, he began experiencing nightmares and flashbacks in which he continued to see the wheel of the locomotive coming at him. He came under the care of a psychiatrist as well as a psychologist and was eventually diagnosed with post-traumatic stress disorder. The plaintiff's treating psychologist testified that the plaintiff was permanently disabled from returning to work as a locomotive engineer due to the post-traumatic stress disorder. The defendant offered the plaintiff alternative jobs as a car retarder operator and a block operator. However, the plaintiff claimed that he was not able to perform these jobs since he experienced flashbacks and other symptoms of the post-traumatic stress disorder when he arrived at the railroad yard.

The defendant claimed that the plaintiff was not in an area between the two locomotives at the time of the accident as he alleged, but was actually already up inside the locomotive cab at the time of the impact. The defendant also argued that the plaintiff was comparatively negligent in that he had assured the conductor on the other crew that the switches were properly aligned. The defendant introduced video surveillance of the plaintiff pitching baseballs and fielding while working as a little league coach during a period of time when he was still receiving treatment for his orthopedic injuries. The defendant's expert psychiatrist opined that the plaintiff does not suffer from post-traumatic stress disorder.

After a five day trial and approximately two hours of deliberation, the jury found the defendant 100% negligent and awarded the plaintiff $1 million.

Reference:
Plaintiff's psychologist: William Coffey from Toms River, N. J. Plaintiff's vocational economist: Anthony Gamboa form Lexington, KY. Defendant's psychiatrist: Timothy Michaels from Philadelphia. Defendant's economist: Brian Sullivan from Philadelphia.

Bisogo vs. Consolidated Rail Corporation. Case no. 98-CV-2104; Judge Jan DuBois, 3-12-99.

Attorney for plaintiff: Michael J. Olley of Coffey & Kaye in Bala Cynwyd: Attorney for defendant: Paul F. X. Gallagher of Gallagher, Reilly & Lachat in Philadelphia.

Commentary:
At trial, the plaintiff's position was that his claimed permanent disability was based on his psychiatric condition, rather than any physical condition. Although the plaintiff had been seen by the jury on videotape throwing and catching baseballs and engaging in related athletic activity, plaintiff's counsel was able to argue that at the time the video was taken, the plaintiff was not totally incapacitated and his psychologist had actually encouraged him to become involved in some other activities in an effort to get his mind off his psychological disorder.

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