In any personal injury case, it is helpful to have as much documentation as possible regarding the actual injury. For example, if you slip and fall in a supermarket, it can help your case for damages if the store maintained video surveillance of the area where your accident took place. In the absence of such firsthand evidence, defendants may attempt to use outside experts to “reconstruct” the accident in a manner that conflicts with your version of events.
O’Neal v. Norfolk Southern Railroad Company
Consider this ongoing federal lawsuit pending before a judge in Macon. This case is not a supermarket slip-and-fall, but rather a workplace accident involving two men who worked for Norfolk Southern Railroad. The employer’s identity is important because there is a special federal law–the Federal Employers Liability Act (FELA)–which governs personal injury claims involving railroad employees.
The plaintiff worked in Norfolk Southern’s Valdosta train depot. According to his lawsuit, when he sat down in a chair one day to work at his station, the chair “fell apart” causing him to fall to the ground. A co-worker said he saw the plaintiff’s “hand fly up in the air” as he walked into the room. The plaintiff subsequently sued Norfolk Southern, alleging it had failed to inspect the chair annually as required by company policy.
In response, Norfolk Southern accused the plaintiff and his co-worker of lying. The company alleges the plaintiff never fell to the ground. To support this defense, Norfolk Southern pointed to a recording of a telephone call from the plaintiff to the co-worker that allegedly took place just before the accident. In this recording, the plaintiff purportedly states “I caught myself but I almost – I almost had me one boy.”
Acting on the belief the plaintiff lied, Norfolk Southern terminated his employment. The plaintiff’s lawsuit alleges his firing violates the Federal Rail Safety Act (FRSA). This is another special federal statute that protects railroad workers, in this case from retaliation against employees engage in “protected activities,” such as reporting a work-related injury.
Before U.S. Judge Marc T. Treadwell, the plaintiff asked for summary judgment on his FLSA claim. Both sides also demanded summary judgment on the FRSA retaliation issue. Judge Treadwell denied all of these motions because they key factual issue in this case–whether or not the plaintiff actually fell from the chair–remains in dispute.
On that point, Judge Treadwell also held that a biomechanical engineer retained by Norfolk Southern as an expert witness could offer her testimony that “[g]iven the established principles” of engineering, it was “extremely unlikely that [the plaintiff] could have fallen in the manner in which he described.” The judge excluded two other opinions offered by the expert, however, regarding the nature of the plaintiff’s injuries–which constituted a medical opinion–and the alleged position of the co-worker at the time of the accident.
Judge Treadwell did not rule on the merits of the lawsuit or Norfolk Southern’s defense. He simply denied each side’s request for summary judgment based on the available evidence. Assuming the parties do not settle, the case will be tried before a jury.