[EDITOR’S NOTE: An excerpt of trial testimony of a CSX claims representative in an injury case.] This is the deposition of CHARLES ROBERT BUSTLE, taken pursuant to Notice and in accordance with the North Carolina Rules of Civil Procedure before Diann C. Holt, Notary Public, in the offices of CSX Transportation, Inc., 400 Lawton Road, Charlotte, North Carolina, on the 13th day of November, 1997, beginning at 3:56 P. M. IT IS STIPULATED AND AGREED by and between counsel for the parties that review and signing of this transcript by the witness is waived. 0 1 The witness, CHARLES ROBERT BUSTLE, being 2 first duly sworn, was examined and testified as follows: 3 E X A M I N A T I 0 N (By Mr. Shapiro): 4 Q. Could you please state your full name? 5 A. Charles Robert Bustle. 6 Q. What is your home address, sir? 7 A. 3430 Carmel Forest Drive, Charlotte, N. C., 28226. 8 Q. Is your employer CSX Transportation? 9 A. That's right. 10 Q. Would you please give me your background with CSX or 0 its prior railroads from the beginning, taking us 0 12 through the various job duties and locations you've !5 13 worked, Mr. Bustle? 14 A. Well, I hired out October 6th, 1969, it was Seaboard 15 Coastline Railroad, and I was hired out as a claim 16 agent. And I've been in Charlotte ever since, and now 17 I'm a claims representative. 0 18 Q. So you've always been a claims representative, and m m 19 it's just that the railroad's name has changed several 0 L) 20 times? 21 A. That's right. 22 Q. What's your educational background, Mr. Bustle? 23 A. I graduated from North Mecklenburg High School in 24 1958, graduated from Wingate Junior College in 1960, 25 and East Carolina College in 1962. Bustle - 5 1 Q. Let me ask you basically about your duties as a claim 2 representative. What's the geographic scope, first of 3 all, that you cover in investigating claims? 4 A. The area? 5 Q. Yes, sir. 6 A. About a hundred-and-fifty-mile radius of Charlotte. 7 Q. What division is Charlotte in of CSX? 8 A. It's the Florence Service Link. 9 Q. Florence Ser-vice Link? 10 A. That's right. 11 Q. So is that in the Florence Division as far as their 12 timetable? 13 A. Yeah, that's right. 14 Q. What are your general duties with regard to 15 investigating accidents of railroad workers as opposed 16 to, let's say, -- as opposed to third-party accidents? 0 17 A. Anytime I have a crossing accident in my territory 0 18 they call me. Anytime there's a personal injury 0 19 involving a railroad employee they call me. It's MY 20 duty to investigate the accident. 21 Q. That would include taking photographs of anything 22 pertinent where you can get to the scene, I suppose? 23 A. That's right. 24 Q. The general way you would receive notice of an 25 accident would be through a railroad super-visor? Bustle - 6 1 A. Well, sometimes, yes; sometimes dispatcher, sometimes 2 it's yard master, sometimes it's clerk. 3 Q. They try to get those notice of claims to you within 4 the day of when they happened? 5 A. Within hours. 6 Q. Hours. I heard something about this particular case. 7 Were you in a trial at the day this accident happened? 8 A. No, sir. We discussed that. That was Sam Gore. We 9 were -- I'm sorry, it wasn't Sam Gore; Sam Gore got 10 hurt, but we were at a trial in Wadesboro. 11 MS. McNEELY: Can we go off the record 0 12 for a second? 13 MR. SHAPIRO: Sure. 14 (WHEREUPON, a diSCUBsion was held off the 15 record.) 16 Do you recall, did Mr. Morrow give you notice about 17 this particular accident to Mr. Hinson? 0 m 18 A. I got the paperwork. I don't know who gave it to me, 19 whether it was in my box or what. Anyway, I got the 20 paperwork presented to me. 21 Q. Do you recall, did you go and take any photographs of 22 locomotive 3120? 23 A. No, siri I did not. 24 Q. At the time did Mr. Morrow mention to you that he had 25 photographs? Bustle - 7 1 A. No, he did not. 2 Q. Did you talk to Mr. Hinson within a day or two of the 3 accident and ask him about the accident? 4 A. I can't recall. I don't know if I did or not, Rick. 5 Q. Well, he would have been back to work within a couple 6 days, so you may have just seen him, right? 7 A. Probably that's it. Usually when there's no lost 8 time, I put the paperwork in a file jacket and put it 9 in my file cabinet and close it. 2 @ 2 m 10 Q. Right. And just so I understand, he would report for 0 0 11 duty in Charlotte right in the same office in which 0 12 you would be working out of every day, right? 13 A. That's right. I don't know if it was that time or 14 not, we did some changing around over there. I don't 15 know. But he did, yeah. 16 Q. Do you recall anything that you did as far as 17 discussing the accident with Mr. Morrow or anyone else 0 18 in the days after it happened? 0 19 A. I don't believe I discussed it because there was no 20 lost time. There was no use to discuss it. Usually 21 when a man doesn't lose any time it goes in my file 22 drawer and it's closed until something comes up later, 23 if later. 24 Q. That initial physician's report of injury, would that 25 also have made its way into your file, come back from Bustle - 8 1 Mr. Morrow? 2 A. That's right. He gave me everything at one time. 3 Q. This would have been the CSX company record which we 4 have marked as Number 2, the report from Dr. Beard? 5 A. That's right. 6 Q. Do you recall receiving information whether the 7 locomotive was tagged and removed from service to have 8 the repair done? 9 A. What I received I put in the file and put it in the 10 file cabinet. 11 Q. Do you have any recollection about that, though? 12 A. When I put it in the file cabinet? 13 Q. No. I mean of the locomotive being removed from 14 service. 15 A. No, not really. I do now, but not at that time I 16 didn't, no. 17 Q. Let me just switch gears to this. Based on what you 18 know about the file now -- okay. Let me do it this 19 way. In your duties as a claim representative, if a 20 claim like this gets into a lawsuit, do you help 21 coordinate with counsel for the railroad responses to 22 interrogatories and any paper requests that attorneys 23 make? 24 A. Absolutely. 25 Q. Have you had an opportunity to assist Ms. McNeely in Bustle - 9 1 putting together CSX's responses to any of these 2 requests? 3 A. Yes, sir; I have. 4 Q. And in those requests, in those responses, did you 5 take a look at some of the locomotive repair and 6 inspection records and assist in having those produced 7 by CSX? 8 A. I did. 9 Q. I'm sorry? 2 @ m m 10 A. Yes, sir; I did. 0 11 Q. Did those documents indicate that CSX had, in fact, 0 12 gone ahead and taken the locomotive 3120, I guess, 13 away from Charlotte very soon after Mr. Hinson's 14 accident to have a repair done? 15 A. That's right. 16 Q. In the process of coordinating CSX's defense to Mr. 17 Hinson's claim, you are intimately involved with the 18 case, correct? 0 19 A. That's right. 20 Q. Do you have occasion to have telephone conference 21 calls with any personnel in Jacksonville to coordinate 22 on your files from time to time? 23 A. Sometimes. 24 Q. And if there is a nurse consultant on a case that CSX 25 might be using, do you have conference calls on Bustle - 10 1 occasions with the nurse consultant and with medical 2 doctors out of Jacksonville? 3 A. I don't have a conference call per se. I talk to the 4 nurse consultant and then I sometimes talk to the 5 medical department in Jacksonville. 6 Q. Are the CSX nurse consultant's notes on a computer 7 that you can access? 8 A. They are. 9 Q. And they are available to Jacksonville also? m @ M. m 10 A. That's correct. 0 11 Q. Do you also discuss vocational rehabilitation issues, 12 that is, issues about whether a worker can go back to !5 13 a job, whether inside CSX or outside CSX, with the CSX 14 vocational people from time to time? 15 A. Sometimes, yes. 16 Q. CSX has those people in their Jacksonville office, 17 right? c 18 A. That's correct. m 0 19 Q. Have you discussed Mr. Hinson's vocational status with 20 any of those folks at CSX down in Jacksonville yet? 21 A. I only read the notes on the computer screens. 22 Q. Do you recall seeing Mr. Hinson from time to time 23 between March of '94 and November of 196 when he last 24 worked for CSX at the work place there in Charlotte? 25 A. Yes, I do. Bustle - 11 1 Q. Again, at the assembly room or various places, you 2 might run into him when he's coming to or from duties 3 with one of the locomotives? 4 A. That's right. 5 Q. From time to time, given that you're the claim agent 6 and you knew he had his claim outstanding, did Mr. 7 Hinson comment to you about how his hand was doing? 8 A. Yes, he did. 9 Q. Did he ever tell you that he was having some problems 10 with it even though he was working? 0 11 A. Yes, he did. 12 Q. At some point did he let you know that he was seeing 13 Dr. Gaul over at the Orthopedic Clinic there in 14 Charlotte? 15 A. Yes, he did. 16 Q. As a matter of fact, did you indicate to him that you 17 thought Dr. Gaul was a pretty decent doctor? 0 18 A. I believe I did. 19 Q. And did you mention to him that Dr. Gaul had also 20 given opinions or testified in at least a prior case 21 involving a CSX worker? 22 A. I mentioned to him that he had treated one of our 23 other workers. 24 Q. And you felt that he was all right? 25 A. Yes, I did. Bustle - 12 1 Q. Did you find out from Mr. Hinson or did you know that 2 he lost some time because of surgery to his right hand 3 sometime in 19S or 196? 4 A. Yes, I did. 5 Q. Did you talk to him after he had his surgery, once he 6 came back, to see how he was doing? 7 A. Yes, I did. 8 Q. How was he doing? 9 A. Well, he was still complaining about his knuckle being 10 swollen. 0 11 Q. Sometime after that, after he was back to work, did he 12 mention to you that Dr. Gaul was discussing with him 13 even putting in an artificial joint in one of his 14 fingers? 15 A. Yes, he did. 16 Q. And you recall telling him that he didn't want to have 17 that done? 0 18 A. Repeat that, please. 0 19 Q. Do you recall saying to him something like: Well, 20 that's something that you really don't want to do? 21 A. I told him that he would probably want to think about 22 that before he had an artificial joint put in his 23 hand. 24 Q. What's your experience with that? Have you had it 25 come up with other workers that were hurt? Bustle - 13 1 A. No, sir; I have not. I told him I think the good Lord 2 put the joint in like he wanted it, and any time you 3 put an artificial joint in, you better think about it. 4 That's exactly what I told him. 5 Q. Do you know whether that would have improved his range 6 of motion or not? 7 A. No. I just advised him he ought to think about that. 8 Q. Did he tell you at some point after he had had his 9 surgery, when he was back to work, that he was having 2 @ m m 10 some trouble getting on and off the locomotives using 0 11 ladders? 0 12 A. Yes, I believe he did. 13 Q. Did he tell you that he was having less strength in 14 his right-hand grip? 15 A. I believe he did. 16 Q. Did you give him any suggestions at all about what he 17 could do that might help with his concerns? 18 A. Well, I think I mentioned maybe he could use his left 0 19 hand a little more but, of course, you know, trying to u w 20 give him some moral support. 21 Q. Was Mr. Hinson cooperative with you during this whole 22 period of two-and-a-half years after the accident? 23 A. Yes. He was very cooperative. 24 Q. If you wanted information about how he was doing, was 25 he forthright in telling you how he was doing? Bustle - 14 1 A. He was very cooperative with me, yes. 2 Q. How did it come that you found out that Dr. Gaul felt 3 that he would have a difficult time continuing to work 4 as a locomotive engineer? 5 MS. McNEELY: Objection. 6 MR. SHAPIRO: Let me rephrase the 7 question. I think you're right. 8 Q. Did it ever come to your attention through Mr. Hinson 9 that his doctor may have told him anything about his @ , m c 10 physical restrictions? 0 11 A. Well, it was in the file. Medical notes is where, I 0 12 believe, -- I believe that's where I picked it up. 13 Q. You saw that Dr. Gaul had started talking about his 14 ability to do his job? 15 A. Yes. 16 Q. Did you ever mention that to Mr. Hinson or did he 17 mention anything to you, or what did you next hear 18 about it? 19 A. No. He mentioned it to me if I recall correctly. 20 Q. And this is while he was still working? 21 A. Yes. 22 Q. Do you recall the context of any of the discussions? 23 A. Well, no. I made notes in my file, you know. 24 Q. Have you discussed with Jacksonville with the medical 25 department anything about making accommodations to Bustle - 15 1 allow Mr. Hinson to work as an engineer or some other 2 duty? 3 A. No, I have not. 4 Q. I'm sorry. Did you answer? 5 A. No, I have not. 6 Q. You may have been in the room when I asked Mr. Morrow: 7 Do you know of any Charlotte locomotive engineers 8 there that are working under special accommodations 9 with a physical restriction to their legs or their m 10 arms? 0 11 A. I don't know of any. 0 12 Q. Would there be any safety concern that you are aware w 13 of if Mr. Hinson was allowed to work with, let's say, 14 a right hand restriction that may have indicated a 15 fifty percent loss of grip strength in his right hand? 16 MS. McNEELY: Objection. 0 17 A. The medical department would have to approve that. 18 Q. Let me ask you some questions about Mr. Hinson's 0 19 physical condition now. At some point after Mr. 20 Hinson went out of work in November 1996, did CSX make 21 a decision to do some surveillance of Mr. Hinson? 22 A. We did. 23 Q. How did it come to your attention that Mr. Hinson had 24 a summer home at Shallotte, do you recall? 25 A. No, I really don't. Bustle - 16 1 Q. It's just that you knew that from common knowledge at 2 the railroad or Mr. Morrow knew or -- 3 A. No. I'm thinking maybe B. J. Morrow might have 4 mentioned it. I'm not sure. 5 Q. Of course, you produced a videotape. We've all been 6 familiar with that recently. Is that the extent of 7 the videotape that you are aware of relating to Mr. 8 Hinson's physical abilities, that is, the tape that 9 showed him at the summer home there, whatever you want 10 to call it, and I guess in his car and different 11 places? I'm not sure where that was. 12 MS. McNEELY: Rick, I was just going to 13 tell Charlie that I produced to you 14 the videotape that he produced to me, 15 if you don't mind me telling him that. 16 Q. So, my question is, have you been familiar with any 17 other video of Mr. Hinson doing physical activities 0 18 besides the tape that was turned over to counsel for 19 the railroad? 20 A. No. That's the only one I know of. 21 Q. You haven't seen any other videotapes? 22 A. That's right. 23 Q. Are you familiar with any other information about Mr. 24 Hinson's physical capabilities besides what's 25 represented on the photographs and videotapes that Bustle - 17 1 shows him in a boat, shows him in the activities at 2 the beach, climbing a ladder or using his car, do you 3 have any other information about his physical 4 abilities besides those things? 5 A. Other than what B. J. Morrow testified to? 6 Q. Right. His golf. 7 A. Yeah. 8 Q. Do you have any information about where Mr. Hinson may 9 have played golf or done any other activities since 10 the spring or early summer of 1996? 0 11 A. No, I don't. 0 CE 12 Q. I'm sorry. Did you say no? 13 A. No, I do not, other than what B. J. Morrow said. 14 That's all I know. 15 Q. Based on the medical reports that you have in your 16 file, would you agree that Mr. Hinson appears to have 17 some injury to his right hand? is MS. McNEELY: Objection. 19 MR. SHAPIRO: What's the basis? 20 MS. McNEELY: Mr. Bustle, as far as I 21 know, is not a medical doctor and is 22 not qualified to enter an opinion on 23 that issue. But he can answer the 24 question. 25 A. Whether he has some injury to his right hand? Bustle - 18 1 Q. Yes, sir. 2 A. Well, I noticed his knuckle was swollen. other than 3 that -- 4 Q. He had a surgery in -- whenever it was, 196 or 195. s Do you have any information that you've developed in 6 defending, putting the file together, to indicate that 7 that surgery was caused by something besides the fall 8 that he had in March of 1994? 9 A. Well, I assume that's -- I assumed that that was 10 caused by the fall in 194, yeah. 0 MS. McNEELY: Objection. Let me just put 12 a blanket objection in there that I 13 have an objection to asking Mr. 14 Bustle, who is not a medical personnel is or qualified in any manner, to express 16 any opinion on the issue of causation 17 of medical injury or even the 18 existence of a medical injury. 19 MR. SHAPIRO: Right. I'm not disagreeing 20 with you. The reason I'm asking is 21 I'm looking to whether there is 22 information in the file about other 23 causes. So that's why -- 24 MS. McNEELY: If that's the limit to the 25 scope of the question I don't have a Bustle - 19 1 problem with it. I just don't think 2 that Mr. Bustle is qualified to talk 3 about medical causation. 4 Q. You don't have any other information, Mr. Tiustle, 5 about some other accident that may have happened, in 6 other words, to cause his surgery that he underwent on 7 his right hand? 8 A. That's right. I do not. 9 Q. I'm sorry. I didn't catch your answer. 10 A. I do not. 0 11 MR. SHAPIRO: i think that's all the 0 m ... 12 questions I have. 13 MS. McNEELY: I have no questions. We'll 14 waive signature. (WHEREUPON, the taking of the foregoing 16 deposition was concluded at 4:20 P. M. 17 on November 13, 1997.) 0 T (D m x 0 C) (Signature Waived) CHARLES ROBERT BUSTLE Bustle - 20 STATE OF NORTH CAROLINA C E R T I F I C A T E COUNTY OF MECKLENBURG I, Diann C. Holt, Notary Public, do hereby certify that CHARLES ROBERT BUSTLE was duly Bworn by me prior to the taking of his deposition; that said deposition was taken by me and transcribed under my supervision; and that the foregoing nineteen (19) pages are a true and accurate transcript of the testimony of said CHARLES ROBERT BUSTLE. I further certify that the persons were present as stated. 0 I further certify that I am not of counsel for or in c the employment of any of the parties to this action, nor am !5 I interested in the result of said action. IN WITNESS WHEREOF, I have hereunto subscribed my name, this 6th day of January, 1998. DIANN C. HOLT, CVR-CM 0 Notary Public m a: 0 My Commission Expires: June 7, 2000