ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, May 5, 1996 TAG: 9605070041
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
NOTE: Above
NORFOLK SOUTHERN CORP., the most frequently sued business in Roanoke Circuit Court, has had a change of luck recently in the city's courtrooms.
It seemed innocuous at first, the accident that changed Greg Johnson's life.
Johnson, a railroad engineer for Norfolk Southern Corp., was climbing down from the cabin of his locomotive at the end of a Roanoke-to-Bluefield run. As he backed down the steep steps and reached for a travel bag on a platform above him, Johnson felt a painful tug in his neck.
After learning that he had ruptured a disc - an injury that required surgery and cost Johnson his $57,000-a-year job - he sued the railroad. The steps on his locomotive were so steep and narrow, the lawsuit claimed, that they constituted an unsafe workplace.
Johnson sued for $2 million, but a Roanoke jury that heard his case last month gave him nothing.
The verdict was the latest in a string of cases in which Roanoke juries have ruled for the railroad in lawsuits brought by employees injured on the job. That's a big change from three years ago, when Roanoke seemed to be establishing a reputation as an unfriendly venue for the railroad.
In 1993, a jury's $4.7 million award for a brakeman injured on the job made history as the city's largest verdict in a personal injury lawsuit.
Other awards - including $2.6 million to an employee who said the noise of train whistles drove him insane; $800,000 to a brakeman who tripped on a cross tie and fell; $250,000 to an office clerk who fell out of his chair - prompted NS lawyers to wonder if they were getting railroaded by hostile juries.
"In essence, you can ask for the moon, and sometimes you can get it," Wiley Mitchell, the railroad's general counsel for litigation, said after the $4.7 million award. (That case was later reversed by the Virginia Supreme Court and was settled for an undisclosed sum.)
But in the past year, there have been four cases in which injured railroad workers received nothing from Circuit Court juries, according to Les Hagie and Jim Johnson, attorneys with the two Roanoke law firms that represent Norfolk Southern. In a fifth case, a jury awarded $22,000, which the railroad considered a win in light of the earlier mega-verdicts.
"I would just hope it's a return to sanity, so to speak," Jim Johnson said. "I hope that those large verdicts were an aberration, but there's no way to know."
Hagie is also at a loss to explain why plaintiffs seem to be having a harder time winning damages.
"I wish I knew the answer to that," he said. "I wish I knew why they were getting such runaway verdicts before."
Since 1985, 459 lawsuits have been filed against Norfolk Southern in Roanoke Circuit Court. Although that is far more than any other company, such a comparison is misleading because the railroad is the only business in the Roanoke Valley that can be sued by its employees for on-the-job injuries.
Most workplace accident costs are covered by workers' compensation. But railroad employees fall under a different system - the Federal Employer's Liability Act, which requires workers to prove their injuries resulted from the railroad's negligence before they can collect lost wages and other damages.
Filed away in rows of blue folders in the clerk's office, the lawsuits claim a variety of hazards in working for the railroad: hearing damage from years of listening to shrieking train whistles and roaring locomotives; lung disease from breathing clouds of asbestos-tainted dust; carpal tunnel syndrome from operating large, hand-held power tools; and hundreds of wrenched backs, broken bones and strained muscles from the unforgiving work of moving thousands of tons of steel across the country.
A vast majority of the lawsuits are settled out of court.
Three years ago, railroad lawyers speculated that the large verdicts they were seeing might have been the product of community backlash to years of downsizing by Norfolk Southern in Roanoke. Another theory was that the largely middle-class and blue-collar juries that heard the cases might be inclined to sympathize with a little guy suing a corporation that made $712 million in profits last year.
Willard Moody Jr., a Chesapeake lawyer who has represented injured railroad workers in Roanoke, does not believe the string of railroad victories represents a change in the philosophy of local juries.
"I don't think there's anything to it as far as a shift to conservatism by juries in Roanoke," he said. "I think each individual case has just risen on its own merits or fallen.
"I think what has been shown is that, if you have a good case with a serious injury, they'll give you a lot of money, which they should do."
Moody says he believes the large verdicts of three years ago may have taught the railroad to better select which cases to settle and which ones to fight in court. As a result, weaker cases - which the railroad says included Greg Johnson's claim - are the ones that juries are being asked to resolve.
Although contested cases are rare, they often affect hundreds of others that are settled.
Last month, Moody represented five men who claimed they suffered lung disease from years of exposure to asbestos. After a jury awarded three of the men a total of $650,000 - but determined the other two had no legitimate claim - a second asbestos case that was scheduled to be tried last week was settled out of court.
While it may have led to future settlements, the verdict in the asbestos case was an exception to the recent trend.
Railroad executives hope that the latest verdicts will erase any ideas that all an injured employee has to do to collect is bring a suit before a Roanoke jury.
"The railroad has always felt it was important to win the cases that we think we should win, so that the message goes back to the plaintiffs that there is a risk involved," Jim Johnson said.
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