Steve Heine, ADTA Past President, Wins in Seventh Circuit and More..


ADTA Past President Steve Heine, Knight Nicastro McKay, Peoria IL Wins Railroad Trial

Stephen Davis, a railroad conductor  filed suit against BNSF Railroad in Knox County, Illinois making claims under the Federal Employers Liability Act and Locomotive Inspection Act, a federal statute providing near absolute liability for violations. Suit was filed in 2011. Davis claimed that he injured his knee while climbing onto a locomotive left sitting on a departure track because it would “not link up” with the rest of the train consist so that it could be used in Distributive Power mode, allowing it to be controlled by the lead locomotive. Mr. Davis, then  Local Union Chair, and with more than 30 years of railroad service, felt a pop and pain in his knee as he climbed aboard the locomotive. The unit was sitting by itself.  Davis and the Engineer, both scheduled to depart on a different train, were asked by the Division Trainmaster, at the request of the Road Foreman of Engines, to move the locomotive to a Repair track so that it could be examined further and a determination made about why it would not “link up” with the other locomotives.

BNSF was represented by Steve Heine of Knight, Nicastro and MacKay in Peoria, Illinois.

The plaintiff was represented by George Brugess of Cogan and Power, Chicago.

Several years before, the court granted summary judgment to the railroad but the intermediate appellate court in Illinois reversed the judgment and remanded the case for trial.

In the interim, the plaintiff had a total knee replacement, claimed to be the result of the incident.
Plaintiff’s expert on liability was Brandon Ogden, former BNSF Superintendent of Operations, Springfield, Missouri.

Plaintiff expert on damages and causation was Dr. Dennis Gates, Chicago, IL.

BNSF liability experts were Roland Paulsgrove, retired RFE and Joe Owens, retired Division TM. Both were involved in the incident.

BNSF damages expert was Dr. Kurt Hegmann, Salt Lake City, UT.

BNSF had Summary Judgment on all issues several years prior to trial, reversed in appellate court. The LIA claim for failure of the DP unit to link up to others in the consist and the claim of leaving it in an area with road ballast, suposedly difficult to walk upon, were claims made at the trial. The jury heard extensive testimony about the many possible reasons for failure to link up and area where the locomotive was left sitting and reasons it was left there.

After 8 years of litigation and a trip to the appellate court, the jury found for BNSF in an hour and a half, including time for lunch. There is no appeal.

A Refresher on Federal Appellate Practice from a Railroad Death Lawsuit 

Guerrero v BNSF Railway, decided July 19, 2019 by the United States Court of Appeals for the Seventh Circuit, is interesting both procedurally and substantively. Steve Heine represented BNSF.

The plaintiff’s decedent was a railroad employee who was called into work on a Sunday, ordinarily a rest day for him, due to a snow storm. He was asked to plow snow. Because he was called on Saturday, also a rest day, pursuant to the union contract, he was entitled to be paid, if he arrived at work on Sunday, from the time he was called Saturday morning until he finished his work on Sunday. Mr. Guerrero lived about 40 miles away from his worksite. On the way to the railyard, he lost control of his personal car and struck a State of Illinois snowplow head on resulting in his death.

The employer railroad argued in its Summary Judgment motion that: First, Guerrero was not in the course of his employment while travelling to his workplace from his home and that the fact that he was paid for the time after he was called was immaterial to whether he was in the course of his employment since pay was merely a matter of the union contract terms and he never arrived so was not entitled to be paid, anyway; and, Second, that the railroad was, as a matter of law, not negligent, since only Guerrero controlled his personal car and only he decided what time to depart for work, how fast and how to drive and what route to take.
The U.S. District Court for the Central District of Illinois granted the railroad’s motion on the first issue: that Guerrero was not in the course of his employment. It did not reach the second issue at all.
The plaintiff appealed to the Seventh Circuit, arguing only the issue on which the trial court had granted the Summary Judgment.

In its Brief, BNSF argued both issues, since the negligence issue was an independent ground for summary judgment fully argued at the trial court, but upon which the trial court did not rule.
The plaintiff on appeal claimed the second issue could not be decided by the Seventh Circuit because not decided by the District Court.
The Court of Appeals, in an interesting opinion, found that there WAS a fact question precluding summary judgment on whether Mr. Guerrero was in the course and scope of his employment but found that there was NO question of fact that BNSF was not negligent, so affirmed the summary judgment for the railroad on the issue not considered by the District Court, but raised by the Defendant.
The Seventh Circuit denied the plaintiff’s Petition for Rehearing. The time for certiorari to the U. S. Supreme Court has not yet expired.

About ADTA

An ADTA prime membership is, in essence, a statement of the high regard in which defense trial attorneys are held by his or her peers in the defense trial bar of their city and state or province.