Yard conductor collides with metal walls when cars brake suddenly: FELA liability: Head, shoulder injuries: Verdict

Law Reporter, Jun 2003

COA; v. Nat'l R.R. Passenger Corp., D.C., D.C. Super. Ct., No 01 CA 002700, Jan. 27, 2003.

Cox, 55, was a yard conductor with Amtrak. He was standing in an open train car vestibule guiding the movement of two cars when a defect in the train's braking system caused the cars to stop suddenly. Cox was thrown against the metal car walls. He suffered a head injury, bruised ribs, and an injury to his right shoulder, requiring two surgeries. Cox's physician stated that he could not return to his job due to significant limitations in the shoulder's range of motion. Cox had earned $58,000 annually and $7,000 in fringe benefits. After the incident, Cox had an estimated residual earning capacity of only $12,000 to $16,000 a year. Cox's total lost wages, including an offset for residual wage income, were estimated at $500,000.

Cox brought suit under the Federal Employers' Liability Act (FELA), 45 U.S.C. [sec][sec] 51 et seq. Defendant admitted fault during litigation and stipulated that plaintiff was not contributorily negligent. The issues at trial were plaintiff's impairment, and his wage loss and efforts at mitigation.

Defendant alleged that plaintiff, with minor accommodation, was qualified for at least four available positions that would pay at least two-thirds of his previous salary. Plaintiff introduced evidence that defendant had a poor history of accommodating employees, that plaintiff would lose job security accrued over 25 years with defendant, and that plaintiff was, in fact, not qualified for the proffered job opportunities. The court refused to admit defendant's surveillance tapes of plaintiffs physical activities into evidence. The court found that defendant had failed to comply with its pretrial order and that plaintiffhad admitted virtually everything shown on the tapes.

A jury awarded plaintiff $600,000.

Plaintiff's experts were Gabriel Gluck, orthopedic surgery, Manassas, Va.; Joseph Linehan, orthopedic surgery, Washington, D.C.; Steven Shedlin, vocational rehabilitation, Greenbelt, Md.; William Reese, economics, Virginia Beach, Va.; and Ellen Hudgins, occupational therapy/American Medical Association impairment ratings, Farmville, Va.

Defendant's experts were Richard Edelman, economics, Bethesda, Md.; Eston Manderson, orthopedic surgery, Washington, D.C.; and Stephanie De Salvio, vocational rehabilitation, Great Falls, Va.

Plaintiff's Counsel

*Richard N. Shapiro, Virginia Beach, Va.

*Francis P. Hajek, Virginia Beach, Va.

*Lawrence M. Mann, Washington, D.C.