FELA CASE STUDY. Abandonment of Employee Ninety Feet in the Air Costs Amtrak $2.5 Million

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1 FELA CASE STUDY Abandonment of Employee Ninety Feet in the Air Costs Amtrak $2.5 Million

2 A DANGEROUS DECISION The most dangerous work done by electric traction linemen is the work they perform at the very tops of the traction poles. For this reason, railroads normally assign this work to their day gangs. But in October of 2011, Amtrak management made the decision to have a night gang perform this dangerous work. When the night gang found out, they petitioned their foreman to have the work done during the day, because it would be light out and because Norfolk Southern (the owner of the adjacent track) doesn t run its trains in that area during the day, which would allow the men to perform the height work from on-rail rail bucket trucks. The foreman agreed with the men. Two supervisors agreed with the men. But the Assistant Division Engineer would not be moved. We ll give them a light, he said.

3 WHERE DID EVERYBODY GO? With train traffic preventing the use of an on-track bucket truck, ET Lineman trainee Mike Meashey and his co-worker Dave Wedge had to climb a ninety-foot traction pole to remove and re-hang insulators. Dave hung a hand line down from the pole for use to raise and lower tools. When Mike and Dave went up the pole their foreman was at the bottom. Mike and Dave had absolute confidence that the foreman would remain there, tending the line, or would assign someone else to do so, because it s a golden rule among trackmen that a hand line is never to be left untended, lest it get swept up and caught in a passing train. But unbeknownst to Mike and Dave, their foreman walked away, abandoning Mike and Dave at the top of the pole with the hand line hanging loose. Mike and Dave couldn t see that there was no one at the base of the pole because the promised light that was supposed to illuminate their job site was broken. Then the train came. Amtrak s own investigation described what happened next: The hand line swirled around by the wind of the train and was caught up and was snagged by the train. The hand line pulled and twisted the CAT pole, before the metal connection of pulley block snapped free. The two men on the pole were thrown about as they clung to the pole structure, which caused injuries to both employees. It was simply good fortune they were not thrown to the ground or into the train during the episode.

4 CAREER-ENDING INJURIES At the time of the accident, Mike was only twenty years old. He had just started on the railroad, was still a trainee with forty-year career to look forward to. The accident put an end to that. As the tower and cross arm twisted violently, Mike s feet came off the crossarm. Mike s right arm hyperextended, ripping the muscles and nerves in his shoulder. The four days Mike spent in the trauma unit at HUP and months of follow up physical therapy failed to address Mike s relentless pain or restore function to his shoulder. So Mike had no course but to undergo a very complex surgery to his shoulder in which the muscles were cut and then re-attached in different places. The surgery alleviated some of the pain but failed to restore full function to Mike s shoulder.

5 THE POINTLESS FIGHT Following the accident, Amtrak itself conducted an investigation, and charged the supervisor of Mike and Dave s gang: Charge(s): 1) Your acts of negligence, dereliction of duty, and/or conduct unbecoming an Amtrak employee in connection with your job assignment on Wednesday, October 12, 2011, as the ARASA Supervisor in charge of the ET gang working in the vicinity of Cola Interlocking... Specifically, you failed to exercise proper oversight to the employees in your charge resulting in an unsecured hand line dangling from a CAT Pole being caught up and snagged by a passing freight train, which further resulted in injuries to two ET employees on site... Amtrak also charged the supervisor -- and the foreman as well -- with numerous violations of NORAC Rules, Roadway Worker Protection Rules, and Amtrak s own Safety Rules. And both men signed company waivers pleading guilty to each and every one of the charges. But when Mike filed his case, Amtrak denied that Mike was injured, disputed that it was Amtrak s fault and claimed that Mike himself was to blame: 26. If the Plaintiff suffered injuries, damages and/or losses, such injuries, damages and/or losses being specifically denied, said injuries, damages and/or losses were due in whole or in part to Plaintiff s own negligence, carelessness and/or recklessness. 32. The incident alleged, if in fact it occurred as alleged by the Plaintiff, was not the result of a lack of care or carelessness, recklessness, negligence and/or fault on the part of Defendant and/or its employees... -Amtrak Answer To The Complaint Amtrak s Answer set off two years of litigation. MYERS LAFFERTY had to hire railroad and medical experts, conduct site and equipment inspections, take and defend dozens of witness and medical depositions, and kill a forest-worth of paper on motions, pleadings, memoranda, exhibits, and reports.

6 But worse than all of this is that Amtrak hired teams of private investigators to follow and photograph Mike and his family (even the dogs!) My wife and I were really upset by all of it. The night of the accident, we had just learned that we were going to have our first child. We spent the entire pregnancy and three years afterward terrified about our financial situation, un-nerved about being hounded by investigators and really angry at Amtrak for putting us through it all. Especially since Amtrak s own investigation blamed the supervisor and foreman and they both admitted they were at fault. Mike Meashey

7 MEDIATION AND TRIAL Seeking to get the case resolved without the expense of trial, Bill Myers and Steve Lafferty persuaded Amtrak to mediate the case. Both sides agreed on a respected former Philadelphia trial judge as mediator. The mediator recommended settlement within a range between two and three million dollars. Amtrak, however, wouldn t offer even one million and the case eventually went to trial. In meetings with the judge and Amtrak before trial, Bill Myers and Steve Lafferty made clear to everyone that they and their client would settle the case squarely within the range recommended by the mediator: $2.5 Million. But the money was not forthcoming. So a jury was picked and seated. Mr. Myers gave his opening statement. Amtrak s own lawyer gave his opening statement, after which the Amtrak claim agent announced in chambers to the lawyers and the judge that Amtrak had $2 million to settle the case. Not enough, I said. It s two-point-five or we move ahead. The judge wasn t happy. Amtrak s claim agent was flabbergasted. He told me the Board wouldn t agree to that. I shrugged my shoulders. The claim agent left the courtroom. Five minutes later, he was back... with $2.5 million. -Bill Myers What was the point of it all? From the very outset, Amtrak knew that its foreman and supervisor were to blame. All the lawyering, all the money spent on defense experts, was just a waste. And this was Amtrak s own man it was fighting. -Steve Lafferty

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