WHAT HAPPENED: Our client was a railroad brakeman/conductor who was hurt during April 2003 while walking his mile-long freight train checking the air brakes. While he walked along the railroad ballast rock along the tracks, his foot suddenly dropped into a depression in the ballast rock, causing him to twist but suddenly drop to the ground with a serious low back injury. The rescue squad took him from the scene where he was diagnosed with low back injuries. Our client underwent low back surgery in June 2005 which did not cure his problems. He tried implanted spinal stimulators (both temporary and permanently implanted) before his doctors finally recommended multi-level back fusion surgery in 2005. His first back fusion surgery of June 2005 left a small fracture fragment in his spine and a revision surgery was then required in July 2005. Our client, who had a five year railroading career, was ruled totally disabled from all gainful employment by his doctors while only 37 years old.
LEGAL STRATEGY: Naturally, in figuring out what caused a sudden depression or hole in the ballast rock was our key forensic mission. Firm attorney Richard Shapiro studied the accident scene, and then retained a hydro-geologist to examine the water flow through the area. Subsequently, our firm retained a railroad track structure expert with extensive previous railroading experience.
Upon examining the track, the railroading expert noticed small pieces of wooden crosstie mixed into all of the ballast rock adjacent to the fall area. Our expert provided a report to us indicating that this was improper track construction, as the ties can create small voids or open gaps. Later, we conducted the railroad company representative deposition and the representative verified that wooden crosstie butts deteriorate over time and they also freeze during winter months.
Ultimately, the wood deteriorates and when it does, it leaves small hidden voids in the ballast rock profile. The company representative said that this is improper track construction and this essentially sealed our liability argument against the railroad, despite the railroad's claims that it was not "aware" of any problem at this area. Our firm produced an economic report showing our client's wage losses alone were in excess of a million dollars. We also obtained a life care plan from a medical nurse specialist showing what future medical expenses our client would require without future health insurance. Court ordered mediation was unsuccessful during August 2005, but post-mediation settlement negotiations resulted in a settlement during October 2005.
COURT/DATE: Southeastern U.S./October 2005
STAFF: Richard N. Shapiro, attorney; Donald Case, Charles Cunningham, investigators; Jackie Tilton, paralegal; Blair Gray, legal assistant