FELA Successful Cases
Please see below for a sampling of Hildebrand McLeod & Nelson‘s recent verdicts and settlements. Since 1926, the firm has consistently achieved similar results on behalf of injured men and women from all walks of life.
DORRANCE vs. UPRR | Verdict: $1,109,148 | Portland, Oregon
On August 30, 2013, Mr. Dorrance sustained low back injuries while working in northern Oregon. Immediately after removing an End of Train Device (EOT) from an inbound train, he was required to descend a steep ballast slope to perform a roll by inspection of an oncoming train. As he stepped over the rail to descend the slope, the footing suddenly gave way underneath him causing him to slip down the slope.
Union Pacific vigorously defended the lawsuit, including denying any responsibility, denying any violation of Oregon walkway regulations, denying Mr. Dorrance suffered injuries and denying the incident even occurred.
The jury unanimously found that Union Pacific was negligent and violated the Oregon walkway regulations. The jury returned a verdict of $1,109,148 in favor of Mr. Dorrance. He was represented at trial by Anthony S. Petru of Hildebrand McLeod & Nelson LLP.
WILCOX vs. BNSF | Verdict: $2. 94 Million | Phoenix, Arizona
On February 7, 2009, Mr. Wilcox was struck and killed by a BNSF freight train at night in Holbrook, Arizona, while performing duties related to a crew change with a different BNSF train that was left parked without a crew on an adjacent mainline track.
After being struck, Mr. Wilcox did not die instantaneously, but the impact threw him against the train he was preparing for departure. Under the FELA, Mr. Wilcox’s estate could only recover pain and suffering damages for the time he was conscious before death. Although BNSF disputed Mr. Wilcox’s consciousness at trial, eyewitness testimony proved that he was able to speak after being struck and lived 2-3 hours until he perished at the hospital. As part of the verdict, the jury compensated the heirs for Mr. Wilcox’s conscious pain and suffering in the amount of $600,000.
After a three-week trial in Phoenix, Arizona, the jury returned a verdict of $2.94 million and also found that BNSF violated Arizona’s walkway regulation. BNSF continued to deny responsibility until their appeals were exhausted. Mrs. Wilcox was represented at trial by Anthony S. Petru of the firm and Jason J. Romero.
KEATING vs. AMTRAK | Verdict: $5,603,251.64 | Sacramento, California
Mr. Jacob Keating was involved in two incidents while working for Amtrak as a locomotive engineer.
The first incident occurred on April 16, 2007, when Mr. Keating was savagely beaten by a known gang west of Sacramento, California. Mr. Keating, whose duties included ensuring the safe transit of passengers, tried to disburse gang members who were blocking the track. Once he was out of the train the attack occurred.
After over two years of extensive treatment, Mr. Keating returned to work for Amtrak as an engineer in late 2009 and early 2010.
The second incident occurred on March 11, 2010, when someone shined a red laser light into the cab of his locomotive. The event caused Mr. Keating to suffer a severe PTSD episode as he believed he was being targeted by a gun. At trial, the evidence established that Amtrak failed to do anything material to increase safety along the tracks in West Sacramento, despite Mr. Keating’s first incident.
The jury returned a verdict of $5,603,251.64.
OLIVER vs. BNSF | Verdict: $2,965,770 | Stockton, California
On July 19, 2008, a BNSF employee filed a SIRP (Safety Issue Resolution Process) complaint about large ballast creating a footing hazard in BNSF’s Mormon Yard in Stockton, California. For seven months, BNSF did nothing. BNSF eventually hired an outside company to “fix” the ballast problem. That company left a ridge of unpacked ballast along one of the tracks.
Russell Oliver was injured on February 26, 2009, when he stepped on the ballast ridge causing torn and attenuated ligaments. Mr. Oliver underwent surgery to repair the anterior talofibular ligament and the calcaneofibular ligament. After over a year of post-surgical therapy Mr. Oliver returned to his regular job. However, 2 ½ years later, his ankle deteriorated to the point where he needed additional surgery to stabilize the ankle. He could no longer return to work.
During trial, BNSF attorneys argued that the railroad was not liable. Rejecting the railroad’s argument, the jury returned a verdict of $2,965,770 finding that BNSF was negligent under the FELA and California’s walkway standards, PUC GO 118, requiring reasonably regular walkways in railroad yards.
Mr. Oliver was represented at trial by Anthony S. Petru of the firm and associate Ryan J. Otis.
MACK vs. UPRR | Verdict: $1,319,263 | Long Beach, California
Mr. Perry Mack, Jr., worked as a hostler, groundman and crane operator at UPRR’s intermodal yard in Long Beach, California, when he was injured on March 1, 2011, at age 52. Mr. Mack was injured while operating the company’s “Cone” vehicle. Prior to the day of his injury, UPRR had never trained Mr. Mack on this vehicle. When Mr. Mack told his boss that he was not trained, his boss told him not to worry and gave Mr. Mack a 60-second verbal instruction.
That same day, while operating the vehicle, it stopped abruptly causing Mr. Mack to be thrown down to the operator’s deck. He missed three months of work and then returned to restricted duty for 9 months until his treating doctor imposed additional restrictions. UPRR would not accommodate Mr. Mack’s medical restrictions, and he went off work permanently in March 2012. Mr. Mack’s treating doctor and two medical experts opined that the incident permanently aggravated preexisting, asymptomatic degenerative disc disease in Mr. Mack’s lower back. A positive EMG test also indicted nerve damage.
Amongst other things, the jury found that the UP violated numerous OSHA regulations that mandate training and instruction on how to operate the vehicle. Further investigation also revealed that the vehicle was defective and negligently maintained by UPRR.
The jury returned a verdict of $1,319,263. Mr. Mack was represented at trial by Victor A. Russo.
SCHNITTGEN vs. BNSF | Verdict: $4,321,814 | Great Falls, Montana
A young conductor, Mike Schnittgen, and his engineer, were operating a train in “dark territory” where the dispatchers cannot see the location of a train, or whether a switch is improperly lined. On July 19, 2011, rather than assigning an experienced brakeman, switchman or conductor to work with a contract “slot train” (a short train operated by a contractor designed to clean up areas along BNSF’s tracks) BNSF chose to assign the task to a welder. The welder failed to ensure that a mainline switch was properly closed and secured in advance of Mr. Schnittgen’s advancing train and then told the dispatcher it was closed.
By the time Mr. Schnittgen and the engineer realized that the switch was open, the siding was occupied by the slot train. Fortunately, he and the engineer survived the incident, but Mr. Schnittgen suffered PTSD and back injuries leading to a spinal fusion.
At trail, BNSF produced experts whose bias was clear and whose numbers did not add up. Fortunately, the jury saw through the railroad’s attempt to confuse and mislead them, and returned a verdict in the amount of $4,321,814.
Mr. Schnittgen was represented by Anthony S. Petru of the firm, along with local counsel David Paoli and John Kutzman of Paoli & Kutzman in Montana.
ESTRADA vs. BNSF | Verdict: $2,806,706.40 | Stockton, California
On June 6, 2009, Mr. Estrada was injured while working as a trainman for BNSF at the Mormon Yard in Stockton, California. He suffered severe ankle injuries when he stepped out from between railcars into a hole in a walkway. BNSF knew that the lighting in the railyard was not in compliance with their own standards, but did not complete any lighting upgrades until after Mr. Estrada’s incident.
Mr. Estrada brought suit against BNSF for negligently maintaining the walkway, for violations of PUC Order 118 (which requires safe walkways in railroad yards) and poor lighting.
After extensive treatment and returning to work with no improvement in his ankle, Mr. Estrada needed surgery. As a result, he developed Chronic Regional Pain Syndrome (CRPS) — a chronic nerve injury resulting from surgery. Following an 18-month course of rehabilitation, the CRPS continued to give Mr. Estrada problems.
At the time of trial, despite chronic pain, Mr. Estrada continued to work for BNSF. The jury returned a verdict of $3,508,383 (minus 20% for Mr. Estrada’s own contributory negligence). Mr. Estrada was represented by Anthony S. Petru and associate Ryan J. Otis of the firm.
FAIR vs. BNSF | Verdict: $3.216 million | Fresno, California
On January 27, 2011, Mr. Fair was working as herder for BNSF when he was injured while trying to line a railroad switch at the “Calwa Yard” in Fresno, California.
He sustained a torn meniscus and a torn anterior cruciate ligament in his left knee, each of which required surgery. MRIs of his low back also revealed that he suffered an annular tear and a bulging disk at L5-S1 in addition to a probable vertebral end plate fracture. Despite years of extensive medical treatment and his best efforts to recover, Mr. Fair was ultimately disabled from working for the railroad.
At trial, the evidence proved that the switch was poorly maintained, grossly out of adjustment and defective according to BNSF’s Track Engineering Instructions. Evidence also indicated that the switch had a bent connecting rod.
The jury returned a verdict of $3,216,000 for Mr. Fair who was represented by Anthony S. Petru of the firm.
BLACK vs. BNSF | Verdict: $1,650,000 | Phoenix, Arizona
On September 21, 2005, Mr. Dale Black was injured while working as a locomotive engineer for BNSF. Prior to his shift, and without his knowledge (not communicated to him), the train to which he was assigned experienced at least one undesired emergency (UDE) brake applications.
During his shift, and while operating the train, it experienced severe slack action and two UDEs, causing sudden and violent run-ins resulting in injuries to Mr. Black’s hand, wrist, shoulder and neck. The injuries required surgery. Mr. Black never returned to and was ultimately disabled from work as a locomotive engineer.
At trial, Mr. Black argued that BNSF was negligent because the train was made up with loads toward the rear of the train, and that UDEs were in violation of the Federal Safety Appliance Act (SAA). The jury found BNSF negligent and in violation of the SAA for the UDEs, and returned a verdict of $1,650,000. Mr. Black was represented at trial by Anthony S. Petru and Jason J. Romero of the firm.
VERGARA vs. UPRR | Verdict: $569,500 | Los Angeles, California
On October 16, 2008, Mr. Ron Vergara, age 36, was working as a trainman on an industrial remote control job for Union Pacific Railroad at Lube Industries. While working on a sharply curved track and attempting to uncouple two railcars, he encountered great difficulty with the cut levers and “tweaked” his back.
Evidence at trial proved that over the years, the railroad and Lube Industries received several complaints about the curved track preventing the cut levers from operating as intended. However, no changes were made (either to the track or procedures employed), and no warnings were given to Mr. Vergara about the known risks.
Mr. Vergara underwent surgery, and ultimately could not return to work. At trial, the jury returned a verdict of $850,000 (less 33% for his own contributory negligence).
Mr. Vergara was represented at trial by Victor A. Russo of Hildebrand McLeod & Nelson, LLP.
SUMLIN vs. BNSF | Verdict: $1,300,000 | Stockton, California
On February 27, 2008, trainman Harvell Sumlin suffered a disabling knee injury when he slipped on sloped mainline ballast as he was crossing two sets of live mainline tracks to get to a train located on the departure tracks inside BNSF Railway Company’s Calwa Yard in Fresno, California. The evidence showed that BNSF’s van driver could have driven directly to the waiting train, but chose to drop off Mr. Sumlin and his crew such that they had to cross the live tracks and traverse on large rocks.
At the time of the incident, Mr. Sumlin was 59 ½ years old with 37 years of service. As a result of the accident, Mr. Sumlin had arthroscopic surgery six weeks post-accident, and later underwent a total knee replacement.
At trial, the jury found that the accident rendered a previously asymptomatic degenerative knee to be symptomatic. The jury found past economic damages in the amount of $410K; future economic damages of $270K; future medical expenses of $120K; past general damages of $250K; and future general damages of $250K. All combined, the verdict was $1,300,000.00.
Mr. Sumlin was represented by Anthony S. Petru of Hildebrand McLeod & Nelson LLP
WIPFF vs. BNSF | Verdict: $2,718,653 | Fort Worth, Texas
On November 11, 2008, Ms. Stacy Wipff suffered disabling injuries to her low back while working as a conductor for BNSF Railway Company during a railcar switching operation in Seligman, Arizona. Ms. Wipff was riding a railcar when a hostile engineer jerked her around by not using the train’s brakes while switching. His action resulted in violent slack action. Other railroad employees witnessed the accident and reported that the railcars and their wheels leaped off the tracks. Evidence at trial established that BNSF was negligent in maintaining the hostile engineer despite years of complaints, including terrible train handling and threats of gun violence.
At the time of the incident, Ms. Wipff was 38 years old and was initially diagnosed with an acute myofascial lumbar strain. Conservative physical therapy was ineffective, and she later developed radiating pain down into her legs. Thereafter, she underwent two surgeries. Unfortunately, the first did not fully relieve her pain. However, after the second surgery Ms. Wipff had progressed to the point where her pain was manageable.
Ms. Wipff was ultimately unable to continue working as a railroad conductor for BNSF. At trial, the jury returned a verdict of $2,718,653. Anthony S. Petru of Hildebrand McLeod & Nelson and Steve Young of Texas represented her at trial.
SMESRUD vs. UPRR | Verdict: $1,396,841 | Martinez, California
On June 25, 2008, Mr. Douglas Smesrud was injured while working as a trainman on a local freight job.
As he was walking alongside the track in a ‘walkway,’ he tripped and fell into a rusty piece of rebar that punctured his knee, and caused him to twist and fall to the ground. The next day he began to experience both back and leg pain. Later, he was diagnosed with two bulging discs. After 16 months of conservative treatment, he underwent two back surgeries.
At trial, the evidence established that the rebar came from hundreds of tons of recycled construction materials that were used to reinforce the railroad’s tracks. Furthermore, both Southern Pacific (Union Pacific Railroad Company’s predecessor) and Union Pacific failed to anticipate the danger the construction material posed to their train crews.
After all the evidence was in, the Judge granted Mr. Petru’s motion for a directed verdict finding that UP violated the California Walkway Standards, PUC GO 118. The jury returned a damages verdict of $1,396,841 in favor of Mr. Smesrud. He was represented at trial by Anthony S. Petru and Ryan J. Otis of Hildebrand McLeod & Nelson.
MEYERS vs. BNSF | Verdict: $1,180,201.55 | Stockton, California
On May 1, 2003, switchman James R. Meyers suffered disabling injuries to his neck and low back when he fell to the ground due to hazardous footing conditions along the lead switching track at BNSF Railway Company’s Riverbank Yard.
At the time of the incident, Mr. Meyers was “kicking” railcars down the lead track when he pivoted to step away from the track after releasing a cutting lever and stepped on a ballast that was left on top of asphalt near a carman’s crossing. His feet suddenly went out from under him and he fell face-first to the ground alongside the track.
Evidence at trial established that BNSF was negligent for failing to provide safe footing conditions along the switching lead, failing to clean up after the yard cleaner (who was there the day before), and failing to warn Mr. Meyers of any footing hazards.
After the incident, Mr. Meyers was disabled from railroad work, and underwent extensive treatment for chronic pain in his neck and low back. At trial, the jury returned a verdict of $1,180,201 in favor of Mr. Meyers who was represented by Victor A. Russo and an associate of Hildebrand McLeod & Nelson.
COOK vs. UPRR | Verdict: $2,323,000 | Reno, Nevada
On April 12, 2008, Jonathan E. Cook was assigned to work as an engineer on a Union Pacific Railroad freight train that had been left at a siding. While preparing the train to depart, Mr. Cook stepped in crater grease that had been wiped off of someone’s shoe onto an interior step. Due to the crater grease Mr. Cook slipped and fell on his back and head causing a head injury, loss of consciousness, visual problems, post concussive syndrome (PCS), mild traumatic brain injury (MTBI), low back pain and injury to his neck resulting in a three-level cervical fusion. Mr. Cook was unable to continue working as a locomotive engineer for UPRR.
At trial, the evidence established that the existence of crater grease likely came from a car inspector. That inspector probably got the grease on his shoe from an earlier inspection. The jury found the facts established a strict liability violation of the Federal Locomotive Inspection Act, the Federal Railroad Locomotive Safety Standards, and negligent under the Federal Employers’ Liability Act.
The jury returned a verdict of $2.323 million in favor of Jonathan E. Cook. Mr. Cook was represented by Anthony S. Petru of Hildebrand McLeod & Nelson.
MARTIN vs. BNSF | Verdict: $4,931,549 | Los Angeles, California
Mr. Martin was injured on November 14, 2008, while working as a switchman for BNSF in Commerce, California. Mr. Martin had to jump off of the engine he was riding to avoid potential fatal injuries in a pending crash with another train on the same track. The accident occurred as a result of poor and overcrowded radio traffic and a defective radio that severely limited the crew to two operative channels. After the engineer mistakenly changed the radio frequencies, Mr. Martin radioed to the engineer to prepare to stop. However, because the engineer had already changed radio frequency the engineer did not hear Mr. Martin’s communication.
Immediately prior to the collision Mr. Martin jumped from the locomotive platform to avoid being crushed. He suffered a grossly fractured right ankle that later required an ankle fusion surgery, and continues to suffer from post-traumatic stress disorder.
At trial, the jury rendered a verdict $4,931,549 to compensate Mr. Martin. He was represented by Anthony S. Petru and Victor A. Russo of Hildebrand McLeod & Nelson.
C.J. WILLIAMS vs. BNSF | Verdict: $353,436 | Kern County, California
On July 31, 2006, Mr. C.J. Williams was injured while working as a conductor for BNSF Railway Company. Mr. Williams’ 12 hours on duty had expired under federal law, and he was required to detrain in order to allow another crew to board. Rather than direct his train to stop in a location with level even footing near a road crossing, BNSF directed the train to continue as long as possible. As a result the train was forced to stop where the only ballast was large main line ballast on the slope adjacent to the tracks. While descending the engineer’s side locomotive ladder, he suffered a torn medial meniscus in his right knee when the large steep mainline ballast gave way under his right foot.
He underwent two arthroscopic surgeries and was ultimately unable to return to work as a conductor.
At trial, the railroad argued that the mainline ballast was safe despite admitting that it shifts unexpectedly underfoot and alleged that Mr. Williams failed to use a three-point stance while detraining. The jury disagreed, found the railroad negligent and rendered a verdict of $353,46.00 in Mr. William’s favor.
He was represented by Anthony S. Petru of Hildebrand McLeod & Nelson.
NEIL JENSEN vs. BNSF | Verdict: $1,740,617 | San Joaquin County, Stockton, California
On April 25, 2003, Neil Jensen was switching cars in the Fresno yard by pulling pins with his left arm. As he reached down for the cut lever and pulled it up in the normal manner, it suddenly and abruptly stopped. Mr. Jensen immediately felt severe pain in his left arm.
After a year of physical therapy, he returned to work. Shortly thereafter, his left wrist gave out due to a fall from a locomotive. As a result, Mr. Jensen underwent four different surgeries — the last a partial fusion. He was eventually able to return to work but suffers from constant discomfort and partial numbness in his wrist and hand.
At trial, plaintiff established that BNSF violated the Federal Safety Appliance Act. The jury returned a verdict of $1,740,617 in Mr. Jensen’s favor. He was represented by Anthony S. Petru and Ryan J. Otis of Hildebrand McLeod & Nelson.
ROSENDALE McMACKIN vs. UPRR | Verdict: $1,795,227 | Multnomah County, Portland, Oregon
On February 20, 2008, Rosendale McMackin was working as a conductor for Union Pacific Railroad (UPRR) onboard the lead locomotive of a nearly two-mile-long freight train. As the train slowed into a siding, it underwent an undesired emergency brake application (UDE) due to a defect in the train’s air brake system. The sudden and unexpected stop caused the train to break in two when a draw bar fractured causing injuries to Mr. McMackin’s shoulder.
At trial, the evidence established that a defective air valve (called a triple valve) failed under a railcar near the rear of the train initiating the UDE.
Mr. McMackin underwent two surgeries on his shoulder but was ultimately unable to return to work as a conductor. The jury returned a verdict of $1,795,227 for Rosendale McMackin who was represented at trial by Anthony Petru of Hildebrand McLeod & Nelson and John Coletti.