North Baltimore law firm focuses on Federal Employers Liability Act

Daily Record, The (Baltimore), Oct 22, 2007 by Brendan Kearney

The paraphernalia on the shelves and walls of the North Baltimore law offices of Albertini & Darby LLP hint at the firm's livelihood: a pair of vintage lanterns, a wooden phone receiver, framed photographs of locomotives, and a six-inch silver-plated spike.

These are railroad lawyers.

Though the six-attorney firm handles other legal matters for a mostly union clientele, partners Guy M. Albertini and P. Matthew Darby concentrate their practice on representing injured train workers under that industry's alternative to workers' compensation, the Federal Employers Liability Act (FELA).

Albertini, who worked as a clerk in the car service department of the Baltimore & Ohio Railroad -- since subsumed by CSX Transportation -- while in night law school from 1963 to 1966, said he has done "hundreds" of FELA over the course of his career.

Darby cut his railroad teeth as an associate at Semmes, Bowen & Semmes PC, representing a local short-line railroad, before coming under Albertini's wing to do plaintiff-side litigation.

"He came over because he wanted to wear the white hat," Albertini quipped.

While other Maryland attorneys may handle the odd railroad personal injury case, Albertini & Darby files more FELA cases than any single firm in the state, generally filing in Baltimore or Cumberland where CSX has major rail yards.

"They've got a niche," said Paul D. Bekman, a Baltimore lawyer who said he currently files "one or two" FELA cases per year. "They do predominantly all of it."

Arnold, Sevel & Gay PA, which is housed in the B & O Railroad's old headquarters building in Baltimore, also files a few cases a year, according to court records. Pennsylvania and Virginia firms compete for or cooperate on FELA cases, which can be filed in state or federal court. Only a handful of cases were brought in federal court in Maryland in recent years, mostly by out-of-state firms, such as Coffey, Kaye, Myers & Olley of Bala Cynwyd, Pa., outside Philadelphia.

But if the FELA plaintiff's bar is small in Maryland, the defense bar may be even smaller.

Stephen B. Caplis and his transportation and railroad practice group at Whiteford, Taylor & Preston LLP are generally representing the railroads -- CSX, Norfolk Southern and the National Railroad Passenger Corp. (Amtrak).

Caplis began representing CSX and Amtrak in 1986 under H. Russell Smouse, the Baltimore Orioles lawyer, back at the now-defunct firm of Melnicove, Kaufman, Weiner & Smouse PA. Caplis is the only remaining member of the team Smouse brought to Whiteford Taylor when the Melnicove firm disbanded in 1989.

Whiteford Taylor has since provided counsel for CSX and Amtrak in matters ranging from FELA to non-worker claims to real estate.

Case after case over the past 20 years, the two men and their respective firms have argued railroad injuries and seem to have developed a professional respect for each other.

"I don't know about friends, but they're a classy group of people," said Albertini. "They're good hard-fighting lawyers."

"We each vigorously assert the positions of our clients," Caplis said.

Safety legislation

Passed by Congress in 1908 to hold railroads accountable for the thousands of workers who were being maimed or killed on the job and made more plaintiff-friendly in 1939, the law has come under lobbying fire by the railroad industry for years but remains in force.

Mitchell A. Kaye of Coffey, Kaye, Myers & Olley called it "the best piece of safety legislation that congress ever passed."

"I guarantee, if we were not able to sue for these types of injuries, it would be a blood-bath out there," he said.

Caplis, the defense lawyer, was less effusive.

"It's the system we live with," he said. "We do the best we can within that system."

While it is more difficult for employees to establish a FELA claim than a workers' compensation claim -- since FELA liability is based on negligence, not on the employee's injury -- successful plaintiffs usually gain higher awards and traditional defenses such as contributory negligence, assumption of risk, and the fellow servant doctrine are not allowed. Any award is, however, adjusted based on the employee's comparative negligence.

High stakes

In Maryland, FELA cases picked up in 2004, when the Court of Special Appeals found the law covered repetitive stress injuries as well as trauma.

Plaintiff Donald E. Miller sued CSX in 2001, alleging that walking on large ballast stones had, over the course of his career, caused bilateral osteoarthritis in his knees, which resulted in a partial knee replacement, and his eventual inability to work the job he had for the previous 24 years.

Represented by Albertini and C. Richard Cranwell of Roanoke, Va., Miller received a $1.5 million jury award in 2003.

The Court of Special Appeals affirmed that verdict in a 121-page opinion by retired Judge Charles E. Moylan Jr. (The Court of Appeals ultimately decided not to review the decision.)

Following publicity of Miller among the railroad unions, Albertini & Darby filed more than 60 suits against CSX in the spring of 2005, including 41 on Valentine's Day.