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Straight
Track #50
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Section 60 of the
FELA
Part II
Robert
J. Drummond
Hoey & Farina Attorney
1-888-425-1212
Last week George Brugess wrote about §60 of the FELA and the
broad protection that it provides from railroad interference in voluntarily
providing information to interested parties concerning the facts or
circumstances of a railroad injury.
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George and I had discussed this article and agreed that
we would develop this topic in two parts. It was my plan to write about
the substantial protection afforded to railroad employees by the Courts.
However, just last week, the 7th Circuit Court of Appeals wrote a decision
which may significantly restrict the protection provided to your
attorneys. This decision, Weibrecht
v. Southern Illinois Transfer, Inc. No. 00-1563, addressed the
relationship between §60 and the ethical rule prohibiting contact with a
party represented by counsel.§ 60 of the FELA provides:
Any contract, rule, regulation, or device whatsoever,
the purpose, intent, or effect of which shall be to prevent employees of
any common carrier from furnishing voluntarily information to a person
in interest as to the facts incident to the injury or death of any
employee, shall be void, and whoever, by threat, intimidation, order,
rule, contract, regulation, or device whatsoever, shall attempt to
prevent any person from furnishing voluntarily such information to a
person in interest, or whoever discharges or otherwise disciplines or
attempts to discipline any employee for furnishing voluntarily such
information to a person in interest, shall, upon conviction thereof, be
punished by a fine of not more than $1,000 or imprisoned for not more
than one year, or by both such fine and imprisonment, for each offense:
Provided, That nothing herein contained shall be construed to void any
contract, rule, or regulation with respect to any information contained
in the files of the carrier, or other privileged or confidential
reports.45 U.S.C. §60.
The
legislative history of § 60 can be found almost entirely in a single
Senate Committee Report which provides:
The railroads maintain
well-organized and highly efficient claim departments. When an employee
is injured, the claim agent promptly endeavors to procure statements
from all witnesses to the infliction of the injury, takes photographs,
measurements, and obtains all available information considered necessary
to protect the railroad company against a possible suit for damages.
On the other
hand, the claimant may be seriously handicapped in his attempt to
procure the information necessary to the determination of the question
of liability. For example a substantial number of the railroads subject
to the Employers’ Liability Act have promulgated rules which prohibit
employees from giving information concerning an accident to anyone
excepting certain specified company officials and claim agents.
The purpose
of the amendment under consideration is to prohibit the enforcement of
such rules and permit those who have information concerning the facts
and circumstances of a personal injury to give statements to the injured
employee or his dependents, or to someone authorized to represent him or
them.
In relation
to the investigation of facts upon which claims for injuries are based,
humanity and justice demand that injured railroad men be accorded as
much freedom of action as their employers enjoy.S. Rep. No. 661, 76th
Congress, 1st Sess. 5 (1939).
It has long been settled law under this statute that a
lawyer retained by an injured railroad worker for the purpose of pursuing
a FELA claim is a “person in interest” to whom voluntary information
regarding the facts incident to an injury or death may properly be
provided. Sheet Metal Workers’
International Ass’n. v. Burlington Northern Railroad Co., 736 F 2d
1250, 1252 (8th Cir. 1984).
Various
courts, State and Federal, have been asked by the railroads to consider
whether the broad protection afforded by § 60 is restricted by the
attorney ethics rules which are enacted in both the State and Federal
courts. Prior to the Weibrecht
Decision, Illinois Courts, both State and Federal, have construed § 60 to
provide broad protection for the free flow of communication. These Courts
have found generally that the attorney ethical rules are subordinate to
the directives of Congress in enacting § 60 of the FELA. See generally:
Mayfield v. Soo Line R.R. No. 95 C 2394, 1995 WL 715865 (N.D. Ill.
December 4, 1995),
Alejandria v. Burlington
Northern Railroad No. 93-1512 (C.D. of IL 1995), Harper
v. Union Pacific Ry. Co. 264 Ill. App. 3d 238 (5th
District, 1994).Various courts of other jurisdictions have held that § 60
is subordinate to ethics rules, and that § 60 does not authorize
communication independent of these rules. See generally:
White v. Illinois Central
Railroad Company, 162 F.R.D. 118 (S.D. Miss. 1995), Branham
v. Norfolk and Western Railway Co., 151 F.R.D. 67 (S.D.W. Virginia
1993). Taking a different tack, at least one court has held that § 60 is
an exception authorized by the ethical rules, which provides for
communications established by law.
Pratt v. National Railroad
Passenger Corporation, 54 F. Supp. 2d 78 (D.C. Mass. 1999).
You
may be wondering how these legal approaches may affect you. Your attorney
will at some point notify the railroad that you are represented by
counsel. Often, the railroad will write back acknowledging your
representation, and state that it is represented by counsel. The railroad
may further admonish your attorney not to speak to any railroad employees.
The legal issue now becomes to whom your attorney may speak without the
presence of the railroad’s attorney.
To
illustrate the problem, consider the following example. You are yarding
your train in a railroad yard. You have dismounted from the train and are
in communication with the engineer by radio. Another employee of the
railroad is driving a crew through the yard in a van. That employee
negligently runs into you with the railroad’s motor vehicle. This event
is witnessed by the President of the railroad, and the members of the crew
who are riding in the van.
Under
the Harper decision, assuming
the case is proceeding in a State Court in Illinois, your attorney can
speak to any of the individuals on the scene of your accident. This means
your attorney can speak to the President of the railroad (a managerial
employee), the driver of the van (a person who’s negligent conduct may
be imputed to the railroad) and the passengers in the van who are railroad
employees and mere witnesses to the event (even if their statements are
considered admissions of the railroad).
If
we now look at the same facts from the Federal Court perspective announced
for the first time in Weibrecht,
the analysis will proceed differently. For purposes of the ethical rule
involved, the Weibrecht Court
had to define who is a party represented by counsel. In doing so, it
adopted the broadest test known to apply to a corporate defendant. Under
the Weibrecht analysis, managerial employees are considered
one-in-the-same with the corporate defendant. Thus, once your claim is
filed in the Federal Court, your attorney could not attempt to interview
the President of the railroad who witnessed your accident due to his or
her position within the corporation. Further, under the definition of a
represented party, a person whose acts can be imputed to the corporation
is also considered a party. Therefore, your attorney could not speak to
the negligent driver of the van. The remaining individuals, the crew that
witnessed the accident, may still be fair game for ex parte communication
under § 60.At this point, the issue becomes whether the statements of
these witnesses would constitute admissions on the part of the corporate
party.
Whether
or not the statements of these mere witnesses would be considered
admissions is usually not determined by the Court until their testimony is
offered at trial. The Weibrecht
decision makes it clear that in an Illinois or Indiana Federal Court,
managerial employees and employees whose acts may be imputed to the
railroad cannot be contacted outside the presence of the railroad’s
attorney. The Weibrecht decision
also makes it clear that not all employees are represented by the
railroad’s attorney. It remains less clear, however, just who these
unrepresented employees are for purposes of § 60.
The
Weibrecht Court cited with
approval a decision rendered by Magistrate Keys of the Northern District
of Illinois. See generally: Orlowski
v. Dominick's Finer Foods Inc., 937 F. Supp. 723 (N.D. Ill.
1996).Magistrate Keys, in a non-FELA case, was confronted with a motion to
prohibit contact with corporate employees by attorneys representing the
plaintiff. Magistrate Keys, applying the same ethical rules, determined
that employees who were members of a collective bargaining unit could not
be considered managerial employees for the purpose of the ethical rule. He
also determined that if plaintiff’s counsel sought ex parte
communications with non-management employees, whose conduct would not be
imputed to the corporation, they are free to do so. However, if this is
done outside the presence of an attorney, none of the statements made will
be considered binding admissions on the corporation at the time of trial.
Thus, under the Orlowski
decision, your attorney would be free to contact the witnesses to your
accident who were members of the crew riding in the van. Any statement
made by these witnesses could be introduced in Court, however, the
statement would not be considered a binding admission on the railroad.
Although
§ 60 continues to provide you with the broad protections described by
George Brugess in last week’s article, the Weibrecht
decision restricts the persons whom your attorney may contact. The full
impact of this decision will have to be developed on a case by case basis.
The FELA provides for jurisdiction in both the State and Federal Courts.
We are reviewing the impact of this decision on how your claim will be
investigated. We wish to present your claim in the forum which provides
you with the most favorable legal treatment. However, nothing in the Weibrecht
decision prevents you or your witnesses from exercising their right to
provide information. It may be that this right will have to be exercised
in the presence of the railroad’s attorney. If § 60 is to provide the
level playing field intended by Congress, you will have to stand on your
rights. If a railroad attorney attempts to discourage you from the
exercise of your rights, this should be reported to your union officials.
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