Yesterday afternoon at about 2pm a Great Falls jury awarded our client $4.32 million for physical and emotional injuries he suffered in a July 19, 2011 train wreck southeast of Great Falls at Gerber, Montana.
The wreck occurred when a BNSF welder failed to close the east Gerber siding switch after opening it so a non-BNSF maintenance contractor could park its train in the Gerber siding. When our client filed his FELA lawsuit, BNSF responded by trying to blame him for the wreck. On his behalf we moved for "summary judgment," arguing the undisputed facts and controlling law did not permit BNSF to present this defense to the jury. John Kutzman wrote the opening summary judgment brief and the reply brief. The court agreed and issued an order in August of 2014 striking the defense. We filed a separate motion arguing that the defense violated a court rule prohibiting the assertion of frivolous defenses. In an October 9 written order, the court agreed that the defense was frivolous and that BNSF had asserted it for improper purposes.
Trial began on October 13, 2014. Our client's orthopedic surgeon testified about the fusion surgery he had performed and ensuing delay in getting the vertebrae to fuse solidly as intended. The surgeon explained that the Gerber wreck caused the back injury he had repaired in the operating room. Our client and his ex-wife testified that the wreck and his struggle to recover from it contributed to their divorce. Our client's counselor, psychiatric nurse practitioner, and a well-regarded clinical psychologist testified that he has post-traumatic stress disorder. They explained they had recommended that he not return to work as a conductor, yardmaster, or any other BNSF job that required him to be around moving trains because his PTSD symptoms made him dangerous to himself and other employees. BNSF's corporate representative during the trial was the regional Field Manager of Medical and Environmental Health. The field manager confirmed he had referred our client to these treaters and that he did not fault our client for following their instructions and recommendations. Properly qualified vocational consultants and an economist explained our client's past wage loss and future loss of earning capacity.
BNSF's lawyers saw it differently.
They said our client should have fired his counselors and requested different counselors. They said he should have disregarded his treaters' instructions and returned to work at BNSF. They presented a non-treating orthopedic surgeon from Billings who had reviewed our client's records and examined him at BNSF's request. BNSF's surgeon claimed our client suffered from pre-existing degenerative disc disease, but admitted he could not testify to a reasonable degree of medical probability that this supposed pre-existing condition ever would have become symptomatic if our client had not been in the Gerber wreck. A Missoula psychiatrist who had evaluated our client at BNSF's request testified that our client's answers to various test questions showed that he was lying about everything. A Colorado Springs accident reconstructionist disregarded inconvenient information from the locomotive event recorder and said this wreck, which had crushed and derailed the locomotives while ripping up the track, had involved less than 8 mph of deceleration and less than 1 G of force -- less than the jurors were experiencing simply sitting in their chairs. A biomechanical engineer told the jury this kind of force was insufficient to cause back injury and that our client's orthopedic surgeon was wrong to think otherwise.
In closing argument BNSF's lawyer told the jury BNSF was a good company to represent in court. He said our client suffered nothing more than a bruised head and scratched hands in the wreck and that he had dishonestly exaggerated this whole event so he could ask a jury to pay him to attend graduate school, hunt, fish, and play video games.
Responding to that argument, David Paoli told the jury in rebuttal that BNSF "is a good company to work for until they hurt you and you try to stand up to them in court." David reminded the jurors that "words count in Montana" and explained that BNSF's entire trial strategy was an interconnected series of lies.
After deliberating about 2 hours, the jury rejected BNSF's tactics and awarded our client $4.32 million for his past wage loss, loss of future earning capacity, future medical expenses, and past and future pain and suffering and loss of established course of life. David and John are thrilled Great Falls jurors saw through BNSF's strategy and rejected its attempt to smear our client.