Virginia Jury Awards $4.5 Million Verdict
On June 13, 2008, Plaintiff was working as a Remote Control Operator (“RCO”) in the Roanoke Material Yard when he tripped on a railroad tie, severely twisting his right ankle. His accident was not witnessed. The tie on which he tripped was supporting a stack of rail that was being stored next to the track, and he testified that the end of the tie was only about 3 feet from the track. Plaintiff also testified that he did not see the tie before he tripped because of waist-high grass and weeds that had been permitted to grow in this area of the Yard, and that the RCO box on his chest obstructed his view of the area in front of his feet. Plaintiff’s liability expert testified that the area alongside a yard track constitutes a “walkway” which must be maintained reasonably free of debris or vegetation. Plaintiff argued that the combination of high weeds and the tie in the “walkway” violated NS’ duty under the FELA to provide a safe place to work.
Plaintiff was diagnosed with a torn tendon in his right ankle and began conservative care with a local orthopedist, Dr. Riebel. Plaintiff progressed well and passed an FCE, but Dr. Riebel still had concerns that Plaintiff might aggravate the injury by returning to his railroad job. So NS sent Plaintiff to see a different orthopedist who quickly returned him to work with “no restrictions”. Almost immediately upon returning to work, Plaintiff had pain, swelling and instability in his right ankle, and he returned to Dr. Riebel.
Dr. Riebel referred Plaintiff to Dr. Mark Hagy, who operated on the torn tendon in July, 2009. Plaintiff then re-aggravated the tendon during a PT session, leading Dr. Hagy to operate a second time. When Plaintiff began weight-bearing, he began to show symptoms consistent with Complex Regional Pain Syndrome (“CRPS”). These symptoms included severe, burning pain in his right ankle and foot, swelling, discoloration, and allodynia. Dr. Hagy referred Plaintiff to pain management for treatment of CRPS.
In pain management, Plaintiff has attempted every suggested treatment to no avail. In more than 18 months, nothing has provided him with any significant relief. He tolerates his pain by keeping his right foot elevated as much as possible, walking with a cane and taking multiple daily doses of narcotic pain medications. Plaintiff’ current treating physician testified that his condition was permanent and that he could perform no gainful employment whatsoever.
Plaintiff earned $60,000 per year prior to his accident and he was only 43 years old at the time of trial. With 24 years of remaining work life, Plaintiff’s economist testified to an economic loss in excess of $2,000,000. Both Plaintiff and his wife, who have four minor children, testified to the tremendous impact his condition has had on their marriage and on Plaintiff’ relationship with his children. They echoed the testimony from a treating psychiatrist that Plaintiff suffers from depression and anxiety associated with his chronic pain.
Defendant contended that Plaintiff had actually been injured on a different tie that did not have nearly as many weeds around it and which was further from the track. Defendant put on evidence from two witnesses who claimed that Plaintiff told them right after the accident that this “other tie” was the one on which he had tripped, and argued that the presence of this “other tie” should have been obvious to Plaintiff. Defendant asserted that Plaintiff had changed his story about which tie he had tripped on after hiring an attorney. In spite of producing no medical evidence to refute the diagnosis of CRPS, Defendant also claimed that Plaintiff was still capable of sedentary work and that he enjoyed a residual earning capacity of approximately $36,000 per year.
Following a five day trial, the jury deliberated 90 minutes before returning a verdict of $4.5 million in favor of the Plaintiff and apportioned 100% of the fault for the accident to Norfolk Southern. Davis v. NS Ry. Co., Roanoke City (VA) Circuit Court CL10-74. Willard J. Moody, Jr. and Michael R. Davis of The Moody Law Firm, Portsmouth, VA for Plaintiff.
