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Straight
Track #221
| Important Verdict for
Maintenance of Way Worker Affirmed by Eighth Circuit Court of
Appeals
Alan Fisher, Attorney
Hoey & Farina
888-425-1212
fisher@hoeyfarina.com |
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On February 7, 2005, the United States Court of Appeals for the
Eighth Circuit, located in St. Louis, Missouri, issued its opinion
affirming a $740,282.26 verdict for Jose Villa in Jose Villa v. BNSF.
The initial verdict was rendered by a jury in the United States District
Court for the Southern District of Iowa on January 14, 2004 in favor of
a Burlington Northern Santa Fe Railway Company maintenance of way
worker. See Straight Track #193.
Mr. Richard A. Haydu of Hoey &
Farina, P.C. represented Mr. Villa, the plaintiff, in the Federal
Employers' Liability Act suit in Des Moines, Iowa, as well as in the
appeal argued in November, 2004 before a three judge panel for the
Eighth Circuit Court of Appeals sitting in St. Paul, Minnesota.
This appellate opinion represents a significant victory for Mr.
Villa, the railroad worker, as well as railroad workers in general,
because the court favorably interpreted their rights in the face of the
BNSF's attempt to restrict them.
The case involved a 50 year old former section laborer from Texas
who was injured while working near Woodburn, Iowa. The BNSF had
previously installed a series of lock spikes backwards in an area where
Mr. Villa’s rail gang was replacing track. Because the lock spikes were
installed backwards, the section gang could not use the on-track spike
puller. Mr. Villa, the foreman, was ordered by his supervisor to remove
the spikes with a hand held hydraulic spike puller which would
accommodate lock spikes. Unfortunately, both the hydraulic pressure and
the GPM flow on the truck powering this device were both improperly set
at much higher than recommended levels. Also, the tie plates used did
not allow the spike puller to sit level on top of the tie plate. These
conditions violated internal BNSF maintenance of way publications and
the operator’s manual for the device in question. As a result, the spike
puller violently kicked back and knocked Mr. Villa to the ground,
causing him to suffer a severe back injury, which required surgery.
After his doctor disqualified him from returning to work due to the back
injury, Mr. Villa sustained an unrelated medical illness which the
railroad contended also disqualified him from returning to work on the
railroad, independent of the work injury.
At trial, the BNSF attorney argued, among other things, that Mr.
Villa’s subsequent illness cut off any claim he had to any future lost
wages from the railroad, since he would not have been able to work on
the railroad even if this work injury had not occurred. The railroad
also argued that its accident report containing the information
regarding the pressure settings of the hydraulic device and other
damaging information was privileged, since it was compiled as an Federal
Railroad Administration (FRA) requirement and the information was sent
to the FRA. The trial judge rejected both arguments.
After the initial jury verdict was entered, the BNSF appealed the
verdict to the United States Circuit Court of Appeals for the Eighth
Circuit. In that appeal, the railroad argued two main points. First, a
disabled railroader is not entitled to any future lost wages if he
experiences a later medical condition which would have independently
disabled him. Second, the railroad argued that it should be shielded
from producing reports that contain damaging information found during an
investigation of an accident if it puts the heading “FRA Required
Report” on the report and uses information from that report in a filing
with the FRA. These arguments are discussed in greater detail, since
these are tactics the railroads have successfully used in other cases in
other parts of the country.
If the railroad’s position with respect to subsequent illnesses is
accepted, an injured railroader better remain healthy. For example, if
you are injured on a railroad and are not allowed to return to work due
to your back injury, and one week later you suffer a heart attack which,
in and of itself, precludes you from returning to work on the railroad,
under the railroad’s analysis, you would be entitled to only one week of
lost wages (up to the point of the heart attack), even if there are
years or decades left to work. Although there have not been many cases
involving this issue in the country, Mr. Haydu argued that, due to the
humanitarian purpose of the FELA, the railroad should not be excused for
years of lost wages just because the worker later suffered other health
problems. The fact remains that the railroad turned a working individual
into an individual incapable of working due to his back. It should not
be absolved by its employee’s later illness. The court disagreed with
the railroad and stated that just because an individual had a later
medical condition he would not be precluded from recovering future lost
wages from the railroad as provided under the law.
It stated that where the effects of a railroad injury and later
medical condition are not completely separable, the computation of
future lost wages should not be automatically cut off and a jury should
decide whether an employee’s work injury contributes to his inability to
resume his former employment.
With respect to the FRA reports, under a federal statute,
documents required to be filed by the FRA are not admissible in any
litigation. The railroad attempted to use that statute to bar the use of
the information contained in the damaging document. The FRA requires all
railroads to compile certain information after an accident and make the
information available to its employees. It also requires railroads to
file a report with the FRA. The BNSF compiled the information required
and made out the first report which is entitled “Alternate to FRA
F6180.98 Personal Injury Report to Employee on Duty FRA Status
Reportable.” It makes it appear that this form was the one actually
filed with the FRA and, hence, privileged. When Mr. Haydu showed the
judge the actual form the BNSF filed with the FRA, the railroad said
since the information contained in the actual form filed with the FRA
came from the railroad’s injury report form, it was still privileged.
The trial judge saw through this ploy, and the Eighth Circuit agreed
that the trial judge was correct in allowing the jury to see this
document.
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