Dirty Tricks

by: Jay A Kaplan
Did you know...
that now more than ever, most of the major railroads, as well as various shortlines, are engaging in dirty tricks in an attempt to avoid the responsibility for the payment of damages that the Federal Employers Liability Act (FELA) mandates they must pay when their negligence causes injury to one of their employees.

In a case recently tried in the State of Washington by another law firm (Wharf vs Burlington Northern Railroad Company), the depths to which a railroad would sink in utilizing dirty tricks to avoid having to pay a railroader what he clearly was entitled to recover, was never more evident.

In that case, a trainman suffered a seriously severed tendon to his left ring finger which necessitated surgical repair.

Initially, the injured railroader missed time from work but eventually made a successful recovery and had returned to his job and assumed his customary duties well in advance of trial.

Consequently, the railroad's basic argument at trial to keep down damages was that the Plaintiff had made a good recovery and would continue to work as a trainman for the defendant railroad.

Well before making these closing arguments to the jury, however, the railroad's trial attorney had been notified by the Operating Department that they had, in fact, decided to fire the Plaintiff.

But, the attorney did not disclose that fact to the Plaintiff, his attorney, the Judge or the Jury.

In fact, the railroad's attorney allowed the judge to read a stipulation to the Jury that the "Plaintiff continues to work for the railroad as a switchman/trainman".

Further, during final argument, the railroad's attorney stated that "Plaintiff's counsel thinks that $350,000.00 is what a finger is worth and Mr. Wharf was notified that he had been fired.

After the jury started to deliberate following the conclusion of testimony and the closing arguments, Mr. Wharf was notified that he had been fired.

The Jury was never informed that Mr. Wharf had, in fact, been fired at this point in the proceedings and reasonably assumed that he had a job with the railroad that would continue until the time he chose to retire.

With that belief in mind, the Jury returned verdict of $90,000.

The plaintiff and his attorney sought to overturn the verdict on the basis of the railroad's deceit.

But the trial judge denied the motion stating that it was a "wrongful termination matter" to be handled under the provisions of the Railway Labor Act.

Fortunately, the Ninth Circuit Court of Appeal held that the Plaintiff's Motion should have been granted if the misconduct of opposing counsel prevented the Jury from considering the true and full extent of the Plaintiff's damages.

Further, the Court found misconduct present in this case because a stipulated (agreed to) fact, namely, that the Plaintiff was employed by the railroad, was in actuality false, and the railroad took advantage of the Plaintiff's lack of awareness of this fact.

The net result of the Appellate Court's ruling was that the case was sent back to the District Court for a new trial on the amount of damages only and the Plaintiff did not have to retry the entire case.

In the many, many years our law firm has been representing injured railroad workers, rarely a week goes by in which a railroader does not come into our office with a horror story concerning the dirty tricks that have been played on him or her by the railroad in an attempt to gain some type of tactical advantage.

Time after time, one thing clearly stands out from these stories; The longer the railroad is able to induce the railroader to deal directly with the Claims Department concerning their injuries (without them receiving the benefit of independent legal advise from an experienced FELA attorney), the greater the damage done to the case.

Of course, as can be seen from the above referenced case, the railroad will, under circumstances, even attempt to practice these dirty tricks in a court of law.

Therefore, if you retain an attorney to represent you against the railroad and their large staff of attorneys and claims agents, it is extremely important to choose an attorney who has been designated by your union.

He or she specializes in handling FELA claims and personal injury matters and has demonstrated the necessary expertise, competence and skill to successfully battle the railroads.

You would not want to have an inexperienced personal injury attorney, or one who is unfamiliar with the railroads, handle your FELA case anymore than you would want a FELA attorney to handle your divorce, a property dispute or a criminal matter.

The point is that an attorney who specializes in the handling of FELA cases on a day to day basis, year in and year out, is especially qualified to recognize the potential dirty tricks of the railroads.

A FELA attorney is in the best position to defeat them and obtain for you and your family, the recovery that you are entitled to receive.

Now that many of the major railroads are merging, it is more important than ever to be aware of these things, because the railroads who merge, would be expected to be sharing their "secrets" as to the most successful dirty tricks to use to defeat or significantly lessen the compensation that is owing to you.

Union Approved F.E.L.A. Attorneys

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