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WSHB Trial Alert: Jury Returns Unanimous Defense Verdict In Two FELA Lawsuits

August 23, 2013

On August 19, 2013, a jury in Modesto California returned a unanimous defense verdict after deliberating for only 25 minutes in a lawsuit filed under the Federal Employers Liability Act of 1908 (“FELA”), a statute enacted to protect railroad workers. The defense verdict was the second victory for defense team Kevin D. Smith and Charles A. Leath with the law firm of Wood Smith Henning & Berman regarding the claims alleged by plaintiff, Brian Horton. Previously, Plaintiff had filed a claim with the Occupational Safety and Health Administration alleging wrongful termination, which was denied.

Plaintiff pursued his claim under the hybrid negligence standard established by FELA which allows the plaintiff to recover against his employer for its negligence “no matter how small” the employer’s negligence may be. Plaintiff filed the lawsuit claiming he was injured in two separate incidents while working as an employee of the Modesto & Empire Traction Company Railroad (“M&ET”). Although the claims are based on a federal statute, plaintiff filed his suit in California state court. The lawsuit sought damages for personal injuries allegedly sustained in two separate incidents. Mr. Horton claimed that he suffered an injury to his lower back on December 17, 2009 while dismounting a moving railcar during switching operations on an industrial line. Plaintiff and his retained expert contended that M&ET failed to maintain the area surrounding the tracks in accordance with federal and state regulations, causing the injury. Under the regulations a railroad may be found negligent if it failed to meet the very stringent requirements for the type of materials used for the walkways near the rail lines. Plaintiff paraded witness after witness before the jury of former and current employees of the M&ET who testified that the area where plaintiff injured his back was known to be dangerous, slippery and muddy during different times of the year.

Through careful and deliberate cross-examination of these witnesses, as well as both plaintiff and his expert, it became increasingly clear that the plaintiff’s failure to follow company policies regarding the proper method of dismounting a moving railcar was the direct cause of the incident. The evidence further showed that Mr. Horton waited eleven days after the incident to report the injury, also a violation of company policy. Following this incident, plaintiff was seen by a variety of medical providers who kept him on disability for 13 months. However, evidence showed that plaintiff participated in several motorcycle rides during his time on disability, and he failed to follow his medical provider’s treatment plans, which directly impacted his recovery.

Plaintiff was involved in a second incident at ME&T after he returned to work on January 17, 2011. On March 29, 2011, while operating a utility terrain vehicle (“UTV”) owned by his employer, plaintiff attempted to negotiate an abrupt left hand turn. Plaintiff lost control of the vehicle, which flipped over. Mr. Horton suffered a fractured arm in this second accident. Plaintiff argued that the second incident was a result of a lack of training in the operation of the vehicle by his employer. Again, plaintiff attempted to establish that the training provided by the M&ET was insufficient and that the UTV was unstable by presenting testimony from current and former employees. However, the M&ET was able to present evidence demonstrating that plaintiff was operating the UTV recklessly and at an excessive speed at the time of the roll-over; this was the sole cause of the accident.

Plaintiff rejected the M&ET’s offer of $35,000.00 to resolve his claims in their entirety and countered with a demand of nearly $500,000.00 as trial began, representing compensation for his alleged herniated disc and fractured left humerus. Plaintiff also sought compensation for the more than two years that he was off work recovering from the two incidents. The jury rejected plaintiff’s presentation of evidence that he would be required to have a radiofrequency ablation procedure performed on his back every 12 moths for the remainder of his life.

Judge Hurl W. Johnson presided over the nine day trial in Stanislaus County Superior Court.

As a result of the verdict, M&ET will be able to recover Court costs from Plaintiff.


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