Donald Furrow v. BNSF was an FELA trial tried to an August 29, 2014 defense verdict in state court in Galesburg, Knox County, Illinois before Judge Scott Shipplett. BNSF was represented by member and Past President Steve Heine of Heyl, Royster in Peoria, Illinois and his partner, Tom Dluski.

Mr. Furrow was working as a machine operator with a welder, tasked with moving 20 to 30 pieces of rail from one side of the tracks to the other so that a contractor could pick up the rail. Furrow claims that while he was looking backwards and moving over the tracks, he felt his neck "pop". He had a two level discectomy and fusion.

Plaintiff alleged he should have had another employee to help unhook the chain from the rail, he was rushed because of track time, a different machine should have been used such as an on-track crane or on track machine with a flat car, and that he should have been instructed to "step" the rail rather than drag it.

Furrow also claimed BNSF was on notice that his work activity was dangerous because in 2003 another former BNSF employee sustained a two level herniation of the C5-6 and C6-7 when he was using a speed swing to drag rail parallel to the tracks. He argued that BNSF did not change any of its operating procedures or instruct Furrow not to drag rail with the end loader after the earlier event.

BNSF's defense demonstrated to the jury that the work Furrow was doing using this equipment was safe and did not cause his injury.

BNSF called as part of its defense a Caterpillar employee to testify about the equipment and refute Plaintiff's claims that using this piece of equipment for the assigned task was unsafe. A retired BNSF employee expert testified that the work Furrow was doing was safe and that the front end loader was appropriate for the work conditions. BNSF called Dr. Elaine Serina, a biomechanical engineer, to dispel the mechanism of claimed injury. BNSF called a former Director of Maintenance for another railroad to testify that the machine choices were in accordance with the practice in the industry.

Shannon Brown v BNSF, was decided by the United States Circuit Court of Appeals for the Seventh Circuit August 29, 2014. The Seventh Circuit affirmed the grant of Summary Judgment to BNSF on all claims. The Court affirmed the exclusion of the testimony of the plaintiff's expert, Dr. David Fletcher pursuant to FRE 702 and 703, finding that the methods employed were unreliable. The Court affirmed the exclusion of Dr. Fletcher's testimony regarding differential etiology because he failed, pursuant to Daubert and Kuhmo Tire, to follow any reliable methodology in making a determination regarding causation.

Since his proposed expert testimony was excluded, summary judgment on all claims for BNSF was appropriate. Member and Past President Steve Heine, represented BNSF along with his firm colleagues Shari Berry at trial and Craig Unrath on the appeal.

Stephen J. Heine
Heyl, Royster, Voelker & Allen
Peoria, Illinois
[email protected]