CKMO Law -$2,500,000 Verdict - Failure to Maintain Railroad Track Switch

$2,500,000 Verdict - Failure to Maintain Railroad Track Switch

$2,500,000 VERDICT - FEDERAL EMPLOYERS’ LIABILITY ACT - FAILURE TO MAINTAIN RAILROAD TRACK SWITCH - BRACHIAL PREXUS INJURY TO PLAINTIFF TRAIN CONDUCTOR.

Philadelphia County

The plaintiff was a 47-year-old train conductor employed by the defendant Consolidated Rail Corporation at the time in question. The plaintiff brought this action under the Federal Employers’ Liability Act alleging that the defendant failed to maintain a track switch in a safe condition. The plaintiff claimed that he sustained a brachial plexus injury while throwing the defective switch. The defendant argued that the switch in question was not defective, the plaintiff failed to immediately report the incident and could not establish that the injury occurred as alleged. The defendant also asserted a comparative negligence defense.

The plaintiff testified that he had been employed with the defendant railroad for 29 years and he was working as a conductor on October 8, 2001. The plaintiff testified that, on that date, he was working a two-man crew and attempted to throw the a track switch which failed to operate correctly. The switch handle stopped suddenly, according to the plaintiff’s claim.

The engineer who was working with the plaintiff at the time in question testified that he did not witness the accident, but that he had thrown the handle before the plaintiff and noted it was very hard to throw. The plaintiff argued that inspection reports for the plaintiff’s accident and a month following the accident indicated a defect with the switch rods. The defect in the switch rods caused the switch handle to stop suddenly, according to the plaintiff’s claims. The plaintiff claimed that the inspection reports further showed that the defect in the switch rods had not been corrected by the defendant for a period of two months before the accident and several weeks after the accident.

The plaintiff testified that he did not initially realize the extent of the injury he sustained while throwing the switch. He visited several doctors and a chiropractor in the hope that the condition would resolve. However, the plaintiff testified that he was advised two weeks post accident that his condition was more serious, and he was referred to a specialist who diagnosed a brachial plexus injury. At that point, the plaintiff formally reported the accident to his employer.

The plaintiff complained of pain and numbness from the neck down the right arm into his no dominant right hand. The plaintiff’s orthopedic surgeon testified that the plaintiff sustained a brachial plexus injury as a result of the incident. This export opined that the plaintiff suffered a partial loss of function of the right arm with a lifting restriction of no more than 20 pounds. The plaintiff’s doctor testified that the plaintiff is totally disabled from returning to his prior occupation. The plaintiff is currently attending community college and is taking several courses in an effort to obtain an Associates Degree. The plaintiff economist estimated the plaintiff’s loss of future earnings as $380,000.

The defendant maintained that the switch was not defective, simply difficult to throw, and that the plaintiff could not establish that the incident occurred as a alleged. The defendant called two track workers who testified that the switch in question functioned properly. However, on cross-examination, the witness conceded that there was a problem with the switch handle not to operate correctly.

The defendant also claimed that the plaintiff was comparatively negligent in failing to operate the switch more carefully when he had been aware for a period of four months before the accident that the switch was difficult to throw.

After a four-day trial, the jury found the defendant 100% negligent. It awarded the plaintiff $2.5 million in damages. Post trial motions by the defendant are pending.

REFERENCE:
Plaintiff’s orthopedic surgeon: Scott Fried from Philadelphia. Plaintiff’s vocational expert: Irene Mendelssohn from Philadelphia. Plaintiff’s economist: Andrew Verzilli from Kintnersville. Defendant’s orthopedic surgeon: Marc Manzione from Philadelphia. Defendant’s expert: Rosalyn Pierce from Philadelphia.

Gawinowicz vs. Consolidated Rail Corporation. 02-01-2699; Judge Mark I. Bernstien, 02-12-03.

Attorney for plaintiff: Michael J. Olley of Coffey & Kaye in Bala Cynwyd. Attorney for defendant: Walter L. McDonough of Swartz, Campbell & Detweiller in Philadelphia.

COMMENTARY:
The plaintiff in this FELA action was able to rely on inspection reports for the switch at issue which indicated a problem with the switch rods. The plaintiff argued that the defendant was aware of this problem for at least two months before the accident and failed to take corrective action. The plaintiff also called the engineer who was working with the plaintiff on the day in question. This witness supported the plaintiff’s claim that the switch was very difficult to operate. The defense stressed that the alleged accident was not reported by the plaintiff until some two weeks after it occurred. However, the plaintiff testified that he did not, at first, realize the seriousness of his injury and believed that the condition would resolve. The jury may also have considered that, despite defense contentions that an accident did not occur, the defendant’s orthopedic surgeon diagnosed the plaintiff with a brachial plexus injury and indicated in his report that the damages were bolstered by a significant claim for loss of wages.