In order to succeed in the practice of personal law, persistence is key. A prime example can be found in the procedural victory our law firm, with the assistance of co-counsel, obtained from the Fourth Circuit Court of Appeals in a railroad worker injury lawsuit.

Overview of the Railroad Worker Injury Case

Our client, Kenneth Muhammad, was injured on a Norfolk Southern railroad bridge over the southern branch of the Elizabeth River in Chesapeake, VA. Muhammad was a bridge track repair worker employed with Norfolk Southern working to replace crossties on the South Branch Bridge in Chesapeake, over five miles away from Norfolk Southern’s Lambert Point Coal Terminal where coal vessels are routinely loaded and unloaded. Firm partner Rick Shapiro filed a lawsuit on behalf of Muhammad under the Federal Employers Liability Act (FELA) in Norfolk Circuit Court. Months after the suit was filed, Norfolk Southern claimed Muhammad was working on navigable waters, and his exclusive remedy was a LHWCA (workers comp) claim, not a FELA claim. The judge who was assigned the case had years before ruled a similar worker was limited to a LHWCA claim. Rick decided to “nonsuit” the state court action and re-file the lawsuit in Norfolk Federal Court seeking $9 million in personal injury damages. Norfolk Southern again asserted that Muhammad had no right to a jury trial under the FELA. Instead, Norfolk Southern argued Muhammad should be considered a longshoreman whereby his civil remedy for financial restitution of his harms and losses would be limited to workers’ compensation benefits under the aforementioned LHWCA.  To the surprise of our legal team, the Federal District Court was sympathetic to Norfolk Southern’s position and dismissed the FELA lawsuit. 

Never Give Up

In this difficult moment, attorneys need to make a choice – give up or continue to fight. At Shapiro & Appleton, we chose to fight. We filed an appeal with the Fourth Circuit Court of Appeals challenging the Court’s dismissal of our client’s FELA suit. By a unanimous opinion, the Fourth Circuit reinstated our client’s FELA lawsuit. Specifically, the Court declared the following:  “Norfolk Southern’s argument would extend LHWCA coverage to injuries occurring on every bridge that allowed ships to pass under it. Congress clearly did not intend so broad a coverage. As the Supreme Court has noted, in enacting the 1972 amendments, Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading.” Obviously, the fight is not over. We are now working diligently to pursue financial restitution on behalf of our client through the reinstated FELA lawsuit.