Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, May 9, 1993 TAG: 9305090233
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: By LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
Ralph Hodges would give up his $4.7 million in a second if it could erase the events of one summer afternoon from his life.
On Sept. 9, 1987, Hodges' railroad job sent him crawling inside a signal box that had been overturned by floodwater. A 67-pound metal door slammed shut on his back - turning an able-bodied man into a cripple.
Hodges sued his employer, Norfolk Southern and won the $4.7 million.
To Hodges and the seven Roanoke jurors who heard his case last month, money says nothing of what he's been through in the past 5 1/2 years.
"I would rather have my life back," Hodges, 39, said. "No amount of money can give that back to me."
But to Norfolk Southern, money talks. The verdict speaks volumes, railroad officials say, about an out-of-control legal process that allows injured workers to collect excessive awards from overly sympathetic juries.
Since 1990, juries have awarded more than $8 million to seven injured workers who took their cases to Roanoke Circuit Court. Hundreds of other Roanoke claims were settled for millions more; across NS's 20-state system, $94.8 million was paid out in 1991 alone.
Of the seven jury verdicts, the amounts ranged from Hodge's $4.7 million - one of the largest personal injury awards in Roanoke history - to $250,000 for a clerk injured when he fell out of his chair.
"In essence you can ask for the moon, and sometimes you can get it," said Wiley Mitchell, the railroad's general counsel for litigation.
But how? For starters, railroad workers are among the only employees in the country who can sue their employers for on-the-job injuries. Instead of being covered by a no-fault workers' compensation system like most people, railroad workers fall under the Federal Employers' Liability Act, a 1908 law that requires them to prove negligence.
And that may be easier now than ever in Roanoke.
Some lawyers speculate that Norfolk and Western Railway Co.'s merger with the Southern Railway Co. in 1982, followed by years of cutbacks and layoffs, created a community bias that is reflected in almost every jury panel.
Many potential jurors have a neighbor, an uncle or a spouse who felt at some point they were wronged by the railroad, the theory goes.
"Of course I think that," said William Poff of Woods, Rogers and Hazlegrove, a Roanoke law firm that represents the railroad.
"Does what I think make any difference? Of course not. Because it doesn't make it true, and if it is true, what can I do about it?"
One thing is obvious, though. The seven Roanoke juries that heard cases against the railroad in the past three years came predominantly from middle-class, blue-collar neighborhoods - the type of jurors most likely to sympathize with the little guy suing the big company.
"Every time you turn around you're reading about the profits that Norfolk Southern is producing," said Thomas Waters, who served as foreman on one jury. "The jurors are saying, `It's deep pockets, so why not give it to the little guy?' "
With new lawsuits being filed every week in Roanoke, NS is beginning to put more emphasis on carefully scrutinizing each potential juror.
"It's baffling to us," Mitchell said. "We don't expect to win every case that we try in Roanoke, but we do expect to be treated fairly. We don't feel that we were treated fairly by the jury" in Hodges' case.
Hodges' lawyer, Richard Cranwell of Vinton, feels differently.
He emphasized that Hodges' injuries required two major operations to fuse vertebra in his back and neck. Five years after the accident, Hodges still must wear a body brace all the time. He cannot bend over to tie his shoelaces, cannot turn his head from side to side, cannot pick up his small child.
"I think you have to look at each case on its merits," said Cranwell, who's won the two largest payouts in Norfolk Southern history.
"You have to start putting value on things like have you hugged your child today?"
Shopping for venues
It all started the morning of April 7, 1984, when Nickolas Williams fell out of his chair.
Williams, an office clerk at Shaffers Crossing, was knocked unconscious when he rolled his chair back from his desk, hit a crack in the floor, and toppled backwards onto the concrete surface.
In an accident report, Williams complained of pain and numbness in his right hand, right shoulder, right hip, left elbow, the back of his neck, the back of his right side, left hip, front right shoulder, arm and elbow.
He sued for $1.7 million. A Portsmouth jury gave him $713,000.
In the railroad's appeal to the Virginia Supreme Court, the issue was why would Williams, who lived and worked in Roanoke, file his lawsuit 250 miles away in Portsmouth?
The railroad already knew the answer: Portsmouth - with largely blue-collar juries known for big verdicts against the railroad - had long been a haven for plaintiffs' lawyers. So much so, in fact, that NS later sold all of its tracks in the city so that lawsuits could no longer be brought there.
In the Williams case, the Supreme Court ruled that a judge erred when he refused to move the case out of Portsmouth. The ruling, which generally confines lawsuits to where the accident happened or where the parties live, put an end to years of "venue shopping."
The practice had sent some plaintiffs' lawyers thousands of miles in search of a friendly forum - such as an Illinois county that was the site of a train wreck that killed dozens of people.
Williams' case was sent back to Roanoke, a venue that until then had been viewed by plaintiffs' lawyers as no man's land.
"It was thought that Norfolk Southern was a favorite child, and that people would not look kindly on someone suing the local big benefactor," Poff said.
By the time the case was tried a second time in Roanoke, there was more trouble for Williams. Like the first time, he testified that his injuries were so serious that he was unable to work - or do much of anything.
Then a neighbor testified that he saw Williams, apparently locked out of his house one day, scamper up a ladder and scale a second-floor balcony to get inside.
Despite that, the Roanoke jury awarded him $250,000.
"You could tell they were shocked when the verdict was read," said Waters, the jury foreman. "They were hoping for a lot more."
Although Waters said he was satisfied with the jury's verdict, he wonders about some of the bigger awards.
To him, the other cases are an indication that people think a million dollars "is zip to the railroad; it's nothing; it comes out of their petty change."
"There's this tendency to say `It's not my money, so why am I going to worry about it?' "
According to a study by the National Center for State Courts in Williamsburg, a lone individual suing a large corporation is likely to get a bigger verdict with a jury than a judge.
"It could be a deep-pockets effect, or maybe people are holding the corporations to a higher accountability . . . because it affects so many people," said Roger Hanson, who worked on the study of 700 tort cases in 27 states.
Waters, who owns a trucking company, realizes what other jurors might not - that huge awards against corporations can indirectly hurt the little guy.
"Something has got to stop in this country," he said. "It's a damnable shame that ultimately it will hit us all. Insurance rates go up and the railroad will have to raise its shipping rate."
Before the Williams case, railroad injury trials were rare in Roanoke Circuit Court. If they had to try a case in Roanoke, plaintiffs opted for the more diverse jury panels in federal court.
But the Williams verdict showed the railroad could be sued on its own turf and lose. More trials followed, and the awards kept getting bigger.
Passion and prejudice
It was time for closing arguments in the case of John Thompson, a conductor who wanted $3 million for his knee injury.
Eddie Wilson, a Virginia Beach lawyer who represented Thompson, got a bit carried away. Maybe, he told the jury, his client was "one of the countless thousands of employees [the railroad] turned their back on."
The jurors - two with family connections to NS - returned a verdict of $550,000.
In a written motion to have the verdict set aside, railroad lawyer James Johnson of Roanoke put on the record what many had been privately speculating.
"In view of NW's relocation of its corporate headquarters away from Roanoke and the associated 35 percent decrease in the number of city residents employed by NW . . . the remark . . . was a blatant, undisguised effort to incite animosity toward NW," the motion stated.
To make Wilson's "appeals to passion and prejudice" worse, the motion added, he repeated the remark several times in the course of apologizing after railroad lawyers objected.
Simply instructing jurors to disregard the comment, the motion argued, "is like telling them not to look at that elephant in the corner."
Roanoke Circuit Judge Roy Willett declared a mistrial, and the case was settled last year for an undisclosed sum.
One juror who heard the case said none of the jurors seemed to carry a grudge against the railroad. The juror asked not to be identified.
But looking at the demographics of Roanoke jury pools, NS lawyers can only wonder. For the railroad, the ideal juror would be someone with a higher income and a business or professional background; someone, say, who lives in South Roanoke or Raleigh Court.
Of the 49 jurors who served on the seven juries, five people fit that description.
Sixty-nine percent of the jurors came from Northeast and Northwest Roanoke and represented what's average in terms of the city's median household income and jobs, according to court records and U.S. Census data.
As for income, the jurors had an average income of $22,721, as compared to a city-wide figure of $22,591. Jurors lived in neighborhoods where most people hold clerical and service jobs. The juries had more craft workers and machine operators than the city as a whole, but about the same proportion of salespeople, professionals and executives.
The railroad would like to see more white-collar professionals in the jury box, but the few who show up in the panels are often struck - removed from the jury - by the plaintiff's lawyer.
"The fact that Norfolk Southern does not get tried by its peers has not escaped our attention," Poff said.
Cranwell doesn't buy it.
"I don't think that you can make any generic statements about jury verdicts," he said. "To extrapolate from this that Roanoke is an unfriendly venue for Norfolk Southern is kind of like reasoning that all dogs have four legs; therefore all four-legged animals are dogs."
Some union officials say working men and woman are the best judges of on-the-job injuries.
"They have a relationship to that guy sitting up at the table," said Dan Anderson, the Roanoke-based general chairman of the International Brotherhood of Firemen and Oilers. "They know what happens when you get hurt on the job."
Nonetheless, the railroad is looking for ways to select juries that are more representative of the community, Poff said.
The task of picking juries - now the forte of a new industry of "jury consultants" who attempt to psychoanalyze jurors through detailed questionnaires, body language and even the way they dress - can be a tricky business.
"It's more of an art than a science," said Jeffrey Frederick of the National Legal Research Group in Charlottesville.
Frederick, author of "The Psychology of the American Jury," warned that stereotypes can be misleading.
"Both sides need to be looking at the opinions that jurors hold," he said. "You're not a good or bad juror because you're a blue-collar worker. But as a blue-collar worker, you have certain experiences and that forms your outlook on life - and that's what you want to predict."
In Virginia, voir dire - the process of asking questions to a panel of potential jurors to determine who is picked to serve - is more limited than in other states.
Even so, it can raise sensitive issues at a stage of the trial where everyone is just getting to know each other.
"Being a lawyer with a jury is like playing with a hydrogen bomb," Poff said. "You never know when you're going to hit the wrong button."
Waiting for the end
Ralph Hodges' trial started April 5 and lasted a week. He stuck around only for the first day, to testify.
Even then, he was in so much pain that he had to lie down on the floor of a courtroom hallway during breaks.
After he left, the trial essentially became a battle of expert medical opinions about the seriousness of his injuries and the necessity of his two major operations.
A parade of doctors with 16-page resumes talked for days about mind-numbing topics like rotational sublexations and posterior lumbar sacral decompressions.
"There's always one expert witness saying left and one saying right," said Tom Munsterman of the Center for Jury Studies in Arlington. "I think in many cases the juries just throw them out."
But the medical testimony stuck with the Hodges jury. "We were concerned, of course, that this man will probably never be able to work again," one juror said.
In accusing the railroad of failing to provide a safe workplace, Hodges said he was sent into a floodswept area to make repairs with no training in emergency operations. Willett found the railroad negligent, leaving the jury to decide only the amount of damages.
Hodges' lost wages and future medical expenses were estimated at $1.3 million. But the jury considered more than that; how much it would cost to have his lawn mowed for the rest of his life, for example.
"When you put it on paper and get a calculator out, the numbers are astounding," said the juror, who asked not to be identified. "You'll see that this man is really going to have to put some money out over time."
"I don't think that $4.7 million is a lot . . . when you're talking about the rest of this man's life."
In a motion to have the case thrown out, the railroad argued that passion and prejudice led the jury to an excessive award.
"This lawsuit is not a lottery," Roanoke lawyer John Eure wrote in briefs filed by the railroad. Willett denied the motion, leaving NS with the option of appealing to the Supreme Court.
For now, Hodges is struggling to pay his bills and faces at least one more operation. He cannot sit upright or stand for more than 15 minutes before pain runs up and down his body like an electric current.
"For 5 1/2 years, I go to bed with pain and I wake up with pain," he said. "It's mentally very hard to adjust to a life like that. There is no escape from it."
Hodges realizes that if the railroad appeals, it could be years before he sees one penny of the $4.7 million - as much as one-third of which will go to his lawyers anyway.
"If the railroad feels it's unjust, then it's their right to carry it through the legal system," he said. "I just wish it would end."
Computer-editor Jim Ellison and staff writer Daniel Howes contributed to this report.
by CNB