Host Sean Harris talks with OAJ member, Florence Murray, about railroad worker cases, the Federal Employers Liability Act, and the growth of the industry.

Sean: Hello, I’m your host Sean Harris, this is episode 37 of Civilly Speaking brought to you by the Ohio Association for Justice. Today is June 27th, 2018 and I’m here with our guest Florence Murray from Sandusky, OH and our topic today is railroad worker cases, Florence Murray thanks very much for joining us.

Florence: Thank you very much for having me Sean.

Sean: Railroad cases, first let’s talk about kind of the legal framework I’ve heard these referred to as FELA cases, what is that and what does that mean?

Florence: In 1908 the US government created the FELA Act which stands for the Federal

Employers Liability Act and it is designed to protect and compensate railroad workers who have been injured on the job and it does require that they have to show that the railroad was at least partly, legally negligent.

Sean: Okay so there is a, not a strict liability type of claim?

Florence: That’s correct.  So unlike workers’ compensation cases where a worker is injured at work, in most settings that’s presumed then to be covered by workers’ compensation so the individual gets reimbursed for medical expenses and for time lost based upon the injury having occurred at work. In the railroad industry there is no workers’ compensation law that covers the workers, rather it’s the FELA that covers them. So the workers actually have to notify the railroad like you do in workers’ compensation cases, you have to notify the railroad that you’ve been injured, but you also have to tell the railroad how it happened so that they can determine whether or not they played any role in it.

Sean: So this is only railroad workers that FELA applies to?

Florence: No, the federal employers does apply to individuals who work for the federal government. It’s just that for the railroad workers in particular it came about because these fell under what are called common carriers so for any of the railroads that are under that definition of a common carrier, which most are this is to cover those workers, but it’s the same thing that applies to many federal employee jobs.

Sean: Gotcha and so my guess is or my feeling is that when we’re talking about railroad workers that there’s probably unions involved. How does that kind of play out?

Florence: So the most common misconception that occurs is that after they report an injury if the railroad takes some action against them out of retaliation for reporting the injury, which happens a lot, the railroad worker has to go through the union in order to fight against what happened that was in any sort of a retaliation, but that doesn’t stop them, the time clock for having to bring a case against the railroad for the injury. So and same is true for railroad workers generally if they are retaliated against for let’s safe reporting a safety violation that the railroad has committed if the railroad takes action against them they have to report it and they have to exhaust the whole union process to try and correct the ship, but bringing a personal action against the railroad has to be brought within the time period regardless of whether or not you’re working with the union. So just for talking about a FELA cases that means that a suit has to be brought within three years of when they knew the injury happened or when they knew they were injured, sometimes these are cumulative injuries so they don’t know until it’s really impacted their life. Then they have to bring within three years regardless of whether they’re doing anything else with the union that the railroad is involved in.

Sean: So, they’re kind of two separate processes? 

Florence: Correct.

Sean: And I can imagine there would be situations where it might otherwise be premature to file because of what’s going on with the union, but the three-year statute is upon you. 

Florence: That’s right. So in a lot of cases if you familiar with how some of the collective bargaining agreements are for unions, in a lot of cases you can’t do anything under the agreement you can’t do anything until you’ve exhausted that whole process. That is not the case for railroad workers. Their statute ends at three years regardless of whether or not they are still involved with the railroad on a claim related to that same suit.

Sean: And so this is a federal statute, do most cases end up in federal court? 

Florence: No, it is a federal statute so for cases that are, what we call the Federal Rail Safety Act, that’s a whole different area and that’s also referred to as the FRSA, those end up in federal court, but the FELA actions, those were the employee has been injured those are brought in state court. The individual has the option to bring it in state court or federal court, but of course we always opt for state court because we have a smaller jury that has be unanimous as it’s only six out of eight state court has to find in favor of the plaintiff and we find that the judges are more inclined to give us the jury trial in state court just based on the dockets that the judges have.

 Sean: Sure. Talk to us about what cases, what happens in these cases where people are injured while working on the railroad.

 Florence: I’ll tell you about a few types of cases that we’ve handled. A lot of injuries are things that happen, they’re one-time injuries so somebody is walking somewhere on railroad property while they’re working from maybe let’s say a locomotive back to where they’re going to eat lunch or they’re getting off work and they’re leaving the locomotive to go back to their car. Anytime you’re on railroad property, the railroad has a duty to make it safe, reasonably safe is what they call it and that means that if they have any knowledge that something exists that could be a problem they have a duty to do something to make it safer. A lot of what we see in these injuries are either over growth where objects are hidden in the grass that’s allowed to creep up around areas such that railroad ties, broken railroad ties are tossed to the side are hidden. That’s where a lot of the injuries happen, but they also happen if there’s snow accumulation and there’s debris in an area of the yard and you can’t perceive what the debris is, but you have to travel that way regardless because you need to get to a locomotive or any other type of equipment that’s on the tracks between you and this debris and the other types of injuries we see are what you call repetitive stress injury so that can be when an engineer actually experiences vibration injuries in their body from holding onto the equipment as it’s traveling down the railroad or when they have it developed asbestos, mesothelioma, from exposure to the chemicals that the locomotives put out or when they develop hearing problems because excessive noise exposure and the hearing protection doesn’t cut the noise exposure enough to protect their hearing. Those are the other type of cases we see and like I said those are the kinds of cases that they don’t know about them until the injury has happened. Sometimes for instance when they are throwing switches they’re very difficult to throw and they know there’s problem, but it’s part of the job. It’s not like you can say I’m not going to throw that switch to change that line just because it’s hard to throw they still have to do it and after a certain amount of time they can end up with a torn rotator cuff because of having to operate difficult to move machinery.

Sean: And you mention you know how this is different or kind of a workers’ comp style for employees who aren’t otherwise covered, what are the categories of damages that are recoverable?

Florence: In these cases, as in workers’ comp the damages are only available to the person injured so for instance there’s no claim for the spouse who maybe gets the short end of the stick because now their spouse can’t hear them when they’re talking to them, there’s no claim there for the spouse, but the workers do have, are entitled to receive money compensation for medical expenses, for emotional distress, for lost wages, for anything that had made it more difficult for them to be able to live their life or they’ve lost some mobility that they used to have or any kind of permanent changes that have happened to them. So it’s very similar to the kinds of injuries you can recover in car crashes for instance, but at the same time it’s only the worker who can recover as in workers’ comp.

Sean: And is non-economics or pain and suffering allowed?

Florence: Yes.

Sean: Okay. As I was thinking about railroads and how they were certainly more popular long ago it doesn’t necessarily mean that these cases are going away. I mean it seems like I read about all kinds of proposals in Ohio for high speed rail and connecting cities and hyper loop and so it seems to me that these are cases that lawyers in Ohio would want to consider.

Florence: True and that’s a different type of course as you know a different type of claim when they are individuals who aren’t employed by the railroad who are injured, but certainly as we seem more automation of rail lines and we see more distractions even though they’re not allowed to use cell phones while they’re traveling we know it happens. We’ve seen on the news of course that some of these very horrendous crashes that have happened in different parts of the country have been where the driver, the operator of the train isn’t paying attention and they’re going at an excessive speed and they just can’t take the turn or they can’t stop in time and they’re not judging accurately the danger ahead, but the same is true for the workers because there’s so much now that is an effort to try and make things more profitable so we say, the railroads push harder on the workers and they are pushing more cargo through and they’re using tighter deadlines and they’re doing longer trains. In the yard here for instance, near us in Bellevue there’s the largest hump yard and I will explain what is in a second, but there’s a large hump yard in North America and what that is, it’s a hill that they send a train over and they start taking the cars apart and then they reassemble them on the other side. So let’s say you brought in cargo off the lake that came from the ocean and gets to that yard and some of the cargos going to different places and they have to take those trains apart and they use this hump to bring them over, down and then these retarders to slow them down so that way they can send them to the right tracks. That kind of increase in production is where we’re seeing a lot of injuries because there’s also a, because of the nature of an expansion, the workers have to get to more parts of the yard in a shorter amount of time or there’s more equipment operating and that lends itself to more people being at risk for injury and because there’s more freight going through an area you might have more debris that just being tossed by the track that puts the workers at risk. So certainly, we’re seeing an increase based upon the production that we’re seeing in rail across country.

Sean: And I take it there is insurance, employers have insurance for this?

Florence: Yes, they do. All of the railroads do have insurance that covers it. The interesting things that in spite of the fact that they have the insurance and in spite of the fact that often times it would be less expensive if they paid the injuries and if they fight them they still are as it is with most insurance companies very difficult to get them to pay voluntarily.Sean: An insurance company is an insurance company.

Florence: That’s right. Unfortunately, if we didn’t have insurance companies fighting us I think we could all find different professions to try and help people, but so long as insurance companies are holding the first strings we’re always going to be fighting these fights. Big goal out of all of this of course as it is for the unions that work with all these railroad workers is to make it more safe. I mean the whole point of why these injuries happen is not because somebody trips over their own two feet or there was a something where they slipped going down the steps like you might see in workers’ comp, these are cases where the railroads done something or failed to do something that they knew was a problem so they’re preventable injuries they just don’t really worry about how far they have to go to prevent them since the worker has to show that they did something wrong.

Sean: Well Florence this was fascinating. Thank you for being here on Civilly Speaking.

Florence: Thank you very much for having me.

Sean: And to all our listeners out there if you like our show and want to learn more about it check out and please leave us a review on iTunes. See you all on the next episode of Civilly Speaking.