Straight Track #235: And the Oscar Goes To...

And The Oscar Goes To... H&F's Video Recommendations

Alan J. Fisher, Attorney
Hoey & Farina, P.C.
888-425-1212
afisher@hoeyfarina.com

Did you ever think about what it would be like to be a star of a major motion picture?

Over the years the attorneys at Hoey & Farina have represented a number of injured railroaders who have made it onto the big screen. Unfortunately, the big screens weren't in a theater but in a courtroom. The injured clients were the stars of surveillance videos requested and paid for by their railroad employers.

Under the Federal Employers' Liability Act ("FELA"), the injured railroader has the burden of proof to show the railroad's negligence caused his injury and is therefore responsible for any physical or financial damages; it is the railroad's attorneys' duty to aggressively defend their client against any such claims. The attorneys want to minimize their client's responsibility. The railroad's attorneys will do everything legally possible, even if at time that means crossing the boundaries of human decency, to investigate all aspects of an injury claim, including the injured railroader's credibility. Videotaped surveillance of injured railroaders is one such method.

If you're an injured railroader, you might be wondering if you're under surveillance and how the railroad determines which injured railroader will be placed under surveillance.

1. You are a recently hired employee and the railroad wants to show other new employees how they will be treated if they report an injury;

2. Your doctor or the railroad's case manager gave the impression to the railroad that you might be able to return to work and you haven't;

3. Your doctor says you are medically disqualified from returning to work and you will have a substantial wage loss because of your injury;

4. The railroad overhears conversations at the rail yard about your leisure activities like hunting or boating, or your at home labor working on your deck or helping a family member on the farm; or maybe,

When it comes to the bottom line, money is the key factor in deciding on surveillance. If the railroad can discredit you, it will save money. The railroad might have to spend $30,000 to do it, but it's an investment worth the expense if a jury returns a reduced verdict or a "not guilty" verdict.

Through Straight Track, seminars and even fellow railroaders, we try to get the message out there that the railroads will order surveillance of their employees.

Still we've had a number of clients who not only were videotaped, but knew they were being videotaped and thought, "…bring it on, I've nothing to hide." What they failed to understand was that reality can be distorted. A jury might see you moving firewood outside, but certainly won't see you in your house, laid up in bed for several days afterwards because you were trying to get back to your normal activities. No, instead what they will see, with the help of the railroad's attorneys, that you did not tell the truth, that you are a liar, because obviously you could have returned to work for the railroad, but choose not to. With video surveillance, the railroad's attorneys will destroy your case, your credibility and your future then apologize to you afterwards asking you to understand that your day in court was "only business".

You cannot stop the railroad and its attorneys from pursuing a very aggressive legal fight against you. You cannot stop the railroad from hiring a private investigation firm to conduct surveillance of you. You may, however, with the right help, be able to stop them from showing a video. As experienced FELA attorneys, Hoey & Farina has successfully battled the railroads concerning their surveillance investigations. The videotapes can be discredited and sometimes even barred from evidence, though the railroad's attorneys will argue that the surveillance tapes should be accepted as evidence into the record to "impeach" to show you, the injured railroader, have not been truthful about your injury.

Don't get videotaped. If you have medical restrictions, follow them. If you're being followed, get legal advice. We're available 24 hours a day, 7 days a week at (888) 425-1212. We're here when you need us.