$1.5 Million Settlement NY Rail Road Accident

Plaintiff Died Approximately One Year After the Accident

WRSH partner Bill Hepner settled this matter at the second mediation of this case, five days before he was to pick a jury and begin trial. Plaintiff was a track worker for a major rail road. He fell off of a stationary flat car while walking on laid out wood timbers. It was alleged that the timbers had a chemical sealer called creosote on them, which created a slippery condition for plaintiff, and the rail road did not offer proper protection for its worker. Defendant alleged that plaintiff let go of the boom of the crane he was using as a hand hold to walk across the timbers.

Normally a worker is not permitted to sue his employer, but under the Federal Act called FELA, this is allowed for those in the rail road industry. Moreover, a lesser standard of causation is applied in cases of this type. This was particularly helpful in this case because the plaintiff, who is claimed to have died at least partly because of his accident, was in such a condition after the accident that he could not be deposed to give his rendition of the accident under oath. Plaintiff died approximately one year after the accident. The defendant was relying on a post accident interview with the plaintiff to blame the whole occurrence on the plaintiff. As a part of the investigation, one of the witnesses said the plaintiff admitted to letting go of the crane. Through extensive depositions of plaintiffs co workers and the use of an expert, Bill was able to effectively argue that defendant had a significant chance of losing liability at trial, and that the admission claimed by the witness to be given by plaintiff would prove to be incredible through strategic cross examination at trial.

With respect to the damages, plaintiff sustained a number of fractures in the fall. Due in large part to a severe underlying and pre-existing kidney problem, plaintiff developed complications in the hospital which led to him to go into a coma, from which he came out of but was never the same. Bill was able to convince defendant that a jury would believe that plaintiff's prior condition was made significantly worse as a result of the accident and played a part in causing plaintiff's death. Defendant argued that plaintiff's death was a result of end stage renal failure which would have put the plaintiff on dialysis shortly after the date of the accident, regardless of whether the accident had occurred. The need for dialysis was not disputed by Bill, who argued that the kidney problems and plaintiff's underlying diabetes did not cause his death, but that the fall led to an acceleration and worsening of his condition.

The sole beneficiary of the plaintiff's estate is his son, who was five years old at the time of the accident and did not live with his father. Bill argued that there should be a significant recovery for the loss of guidance which plaintiff's son would have to do without his father's presence. The case settled at mediation for $1.5 million.

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