This was a FELA case in which the 37 year-old male plaintiff train engineer, who was at the edge of a car when he was attempting to communicate with another worker as he was in the process of manually decoupling cars, contended that the defendant failed to provide a safe place to work in that water from recent rain was present in the car and grease was in the interior work area of the area to which the cars had been brought, resulting in his slipping and falling ten feet to the concrete floor below. The plaintiff contended that he sustained a lumbar compression fracture, two lumbar herniations, ulnar neuropathy and the formation of a bone chip in the knee. The plaintiff maintained that he will permanently suffer pain and restriction and be unable to continue working as a train engineer.
The plaintiff contended that the automatic uncoupling device was malfunctioning, requiring him to climb onto the area between two cars and manually uncouple the cars. The plaintiff contended that after he manually uncoupled the cars, he was required to communicate with a co-worker that he had completed this aspect and advise the co-worker to release the breaks by yelling “Buff it.” The plaintiff contended that in order to speak with the co-worker who was several car lengths away, he was required to walk through cars and that the incident occurred as he slipped in the car next to the middle area between cars. The plaintiff contended that it had rained recently and that the floor was wet. The plaintiff asserted that floors were often slippery and that the defendant should have taken some precautions such as placing mats or instruct workers to dry the floors after the cars are brought to the interior work area from outdoors. The plaintiff further contended that the work area surrounding the car was very greasy and that grease had accumulated on his shoes, heightening the hazards.
The defendant denied that the incident occurred in the manner advanced by the plaintiff. The plaintiff’s supervisor maintained that the automatic coupling mechanism was functioning and the defendant denied that the plaintiff was required to work between the cars. The supervisor did not observe the incident. The plaintiff would have presented a co-worker who would have supported his version regarding the malfunctioning of the uncoupling mechanism. The plaintiff would have further argued that in an earlier statement, the supervisor was not certain if the automatic uncoupling mechanism was functioning, arguing that in view of this inconsistency, the defendant’s position should be questioned.
The defendant further contended that the plaintiff should have been aware of the potential hazards and was comparatively negligent in failing to be more careful. The plaintiff countered that he had followed all of the job procedures which he had been taught and argued that if the defendant had provided a safe place to work he would not have been injured.
The plaintiff contended that when he fell, he suffered a compression fracture at L-4 and herniations at L-4,5 and L-5, S-1 which were confirmed by MRI. The plaintiff contended that he will suffer permanent radiating back pain and weakness. The defendant contended that any disc pathology was pre-existing and the result off degenerative disc disease. The plaintiff countered that he had no prior symptoms or treatment.
The plaintiff’s neurologist related that when the plaintiff fell, he suffered a crush injury to the lateral chondyle which resulted in an entrapment of the ulnar nerve. The physician indicated that surgery was performed in which a portion of the elbow was excised, releasing the nerve. The physician contended that the plaintiff will permanently suffer some pain and weakness from this injury as well. The defendant maintained that there was no evidence of a trauma to the elbow in the medical records. The plaintiff countered that in view of the fact that he had suffered multiple injuries, including a fractured back, it was understandable that he was not focusing on a non-fracture elbow injury. The plaintiff also contended that he suffered a bone chip in the knee which required surgery and which will cause permanent pain. The defendant maintained that any knee symptoms were caused by the presence of a bone chip which occurred in an accident several years earlier and regarding which a claim of permanency had previously been made. The plaintiff countered that although he had made a claim of permanency with respect to the formation of traumatic arthritis, his symptoms were much less severe than symptoms suffered after the accident, and the orthopedist treating the plaintiff for the knee injuries maintained that it was probable that this injury occurred in the subject accident.
The plaintiff maintained that the train engineer’s duties were relatively rigorous and that although he attempted to return, he could not continue. The plaintiff contended that he will permanently be relegated to sedentary type work. The plaintiff contended that even if he were able to obtain an optimum sedentary type job, he would nonetheless suffer income losses of at least $200,000 and that the loss could well be much greater.
The plaintiff further maintained that the pain and concern over his work future have caused a reaction depression and the plaintiff’s psychiatrist offered a guarded prognosis.
The case settled prior to trial for $750,000.
REFERENCE:
Plaintiff’s expert orthopedic surgeon: Cary Glastein, M.D., from Shrewsbury; Plaintiff’s expert orthopedic surgeon for the knee: Lance Markbreiter, M.D., from Shrewsbury; Plaintiff’s expert hand surgeon: Kenneth Chekovsky, M.D., from Eatontown; Plaintiff expert economist: Peter Silvia from Princeton; Plaintiff’s expert psychiatrist: Robert Bransfield, M.D. from Middletown.
D.J. vs. PATH. Civil Action No.” 95-3795; Judge Alfred Lechner, October 19, 1996.
Attorney for plaintiff: Charles A. Cerussi of Giordano, Halleran & Ciesla.
COMMENTARY:
The plaintiff had contended that the automatic coupling device was malfunctioning and that he was required, therefore, to venture between cars, falling during the process of manually uncoupling the cars because of the failure of the defendant railroad to rectify the hazards stemming from grease and wet surface. In this regard, the defendant denied through the plaintiff’s supervisor that the automatic coupling device had, in fact, malfunctioned, requiring the plaintiff to be in this location for a manual change and maintained that the accident did not, therefore, occur in the manner advanced by the plaintiff. The plaintiff, who was able to overcome this position, stressed that that supervisor had indicated in a previous statement that he was not certain if the device had been functioning, arguing that his current position was highly suspect. Additionally, the defendant would have argued that the plaintiff was aware of the presence of grease and moisture and should have been especially careful. The plaintiff would have endeavored to undermine this defense position by emphasizing that he had followed all safety procedures which he was taught when performing this work and that in the absence of any violations, it was clear that he was not comparatively negligent. (In this regard, the plaintiff would have argued that he was entitled to an instruction under the FELA that if the jury found that he was following all safety procedures which he had been taught, they could not find that he was comparatively negligent. It should be noted, however, that the case resolved before there was any judicial ruling on this issue.)
Regarding damages, the defendant had denied that the incident occasioned any disc pathology, arguing that it stemmed from degenerative disc disease. The plaintiff would have countered this position by stressing that he had no prior symptoms or treatment, arguing that in view of this evidence, and the fact that he fell some ten feet directly onto his back on concrete, it was clear that the herniation noted on the MRI was causally related.
