Please see below for a sampling of Hildebrand McLeod & Nelson's recent verdicts and settlements. Since 1926, the firm has consistently achieved similar results on behalf of injured men and women from all walks of life. An almost countless number of verdicts and settlements are not included in this sampling.
ESTRADA vs. BNSF | VERDICT: $2,806,706.40 | Stockton, CA | August 2014
Mr. Estrada, age 39, was injured at approximately 2:30 am on June 6, 2009, while working as a trainman for BNSF Railway Company at BNSF’s “Mormon Yard” in Stockton, California. He suffered severe ankle injuries when he stepped out from between railcars into a hole in a walkway. He took pictures of the hole and reported the injury to the yardmaster. He then went home to sleep, awoke in great pain, called the railroad, and went to the emergency room.
Mr. Estrada brought suit against BNSF for negligently maintaining the walkway, violations of California Public Utilities Commission General Order 118 (which requires safe walkways in railroad yards), and poor lighting. During litigation we found many safety complaints regarding chronic lighting and footing hazards in the Mormon Yard. For example, BNSF knew in 2005 that the lighting was only ten percent of BNSF’s own standards, but BNSF did not complete a lighting upgrade until after Mr. Estrada was injured.
Mr. Estrada rotated between light duty, full duty, and medical leave, but his ankle did not get any better. An MRI showed a torn ligament which resulted in surgery. Mr. Estrada was splinted and casted post-surgery, but once the cast was removed, he developed chronic pain and symptoms due to Chronic Regional Pain Syndrome (“CRPS”) - a chronic nerve injury resulting from the surgery. Mr. Estrada then underwent another surgery in which ligamentous tearing and laxity was found; articular surfaces were profoundly arthritic; major bone spurring was identified and removed; and scar tissue was identified and removed. Following an eighteen month course of rehabilitation, the CRPS continued to give Mr. Estrada problems but he persuaded his doctor to release him to work, despite medical reservations and continued symptomology. Although he continued to work for BNSF at the time of trial, Mr. Estrada’s doctors expressed concern about his longevity at the railroad. The railroad argued that it was not negligent and that Mr. Estrada was not entitled to any future wage loss because he was working at the time of trial.
Trial of the case took two weeks and the jury deliberated for two days before returning a verdict of $3,508,383.00 (minus twenty percent for Mr. Estrada’s own contributory negligence). Mr. Estrada was represented at trial by Anthony S. Petru of Hildebrand McLeod & Nelson LLP. Ryan J. Otis of Hildebrand also assisted with pretrial work on the case.
GRAY vs. UPRR | VERDICT: $937,134.75 | San Bernardino, CA | MAY 2014
Mr. Gray, age 43, was injured at approximately 2:30 am on June 23, 2011 while working as a switchman for Union Pacific Railroad Company (UPRR) at West Colton, California when a cutting lever malfunctioned as he attempted to lift the lever to separate two railcars. Mr. Gray was caught off balance while standing on a broken-up asphalt walkway littered with rocks, debris, and large pieces of broken asphalt. His feet went out from under him and he fell backward onto his low back and tailbone. His fall was witnessed by two managers and Mr. Gray told them that he was sore, but that he believed he would be ok. Mr. Gray completed his shift, did not complete a formal written accident report, and did not immediately seek medical treatment.
Unfortunately, in the coming days, weeks, and months, Mr. Gray developed severe radicular pain down his left leg into his foot. As the pain worsened, Mr. Gray had difficulty performing work and underwent an MRI in December 2011. The MRI revealed a 9 millimeter disk herniation at L5-S1. Because of the need to miss work for surgery, Mr. Gray reluctantly completed a formal accident report relating his injury to the fall. UPRR then retaliated against Mr. Gray in violation of federal whistleblower laws and disciplined Mr. Gray for turning in a written accident report.
In February 2012, Mr. Gray underwent a discectomy at L5-S1 to remove the herniated disk and decompress the L5-S1 nerve root. Unfortunately, the herniation and scar tissue returned resulting in ongoing pain and radiculopathy. Mr. Gray was off work for approximately one year with medical restrictions following the surgery, but he was forced to ask his surgeon for a full-duty release so that he could return to regular duty at the railroad because of financial hardship. Mr. Gray’s surgeon reluctantly released Mr. Gray to work and despite ongoing pain, Mr. Gray toughed it out and continued working full-time for UPRR for approximately one year immediately prior to trial.
At trial, and in front of Mr. Gray’s pregnant wife, UPRR denied that it was negligent, denied that Mr. Gray was injured, denied that Mr. Gray needed further surgery, denied that Mr. Gray was being truthful, denied that Mr. Gray would be fired when the case was done, and denied that Mr. Gray was entitled to any compensation. Following the verdict, UPRR immediately terminated Mr. Gray in violation of his collective bargaining agreement and other wrongful termination laws. The trial took approximately 6 weeks and the jury deliberated for approximately 5 days during which time Mrs. Gray gave birth to a healthy son, Mason Gray. UPRR’s last offer to settle the case was $50,000.
Mr. Gray was represented at trial by Kristoffer S. Mayfield and Victor A. Russo of Hildebrand McLeod & Nelson, LLP.
FAIR vs. BNSF | VERDICT: $3,216,000.00 | Fresno, CA | SEPTEMBER 2013
Mr. Fair was injured on January 27, 2011 at 1:30 AM while trying to line a railroad switch as a herder for BNSF Railway Company (“BNSF”) at BNSF’s “Calwa Yard” in Fresno, California. As he lined the switch handle from left to right, the handle came to a stop before going all the way into the keeper. This was not unusual as switches typically require more force as the throw nears completion. After repositioning himself, Mr. Fair attempted to push the handle all the way into the keeper. The handle moved slightly and then abruptly stopped and Mr. Fair felt a sudden pop and pain in his low back. When he straightened up and tried to walk it off, a lightning bolt of pain shot from his back down his leg which caused him to fall to his knees, striking his left knee on a switch tie.
Evidence introduced at trial demonstrated that the switch was poorly maintained, grossly out of adjustment, and defective according to BNSF’s Track Engineering Instructions. Evidence also indicated that the switch had a bent connecting rod which was likely caused by an unidentified BNSF employee previously “running through” or “getting into” the switch with a railcar or locomotive.
When he fell, Mr. Fair sustained a torn meniscus and torn anterior cruciate ligament in his left knee, each of which required surgery. Mr. Fair’s treating doctor testified Mr. Fair will require a knee replacement within the next ten years due to further deterioration of his knee caused by the incident. MRI’s of Mr. Fair’s low back also revealed that Mr. Fair suffered an annular tear and a bulging disk at L5-S1 as well as a probable vertebral end plate fracture. These injuries caused him severe low back pain with persistent radiating pain down his leg. Following two knee surgeries, Mr. Fair underwent a number of epidural injections for his low back and hyalgan injections for his knee. Despite years of extensive medical treatment and his best efforts to recover, Mr. Fair was ultimately disabled from his work at the railroad.
Mr. Fair’s trial began on September 3, 2013 and concluded on September 18, 2013. In its closing argument, BNSF argued that Mr. Fair was entitled to no more than $250,000.00 in compensation. The jury disagreed with BNSF and deliberated for approximately three hours before coming back with a verdict of $3,216,000.00 for Mr. Fair. Mr. Fair was represented at trial by Anthony S. Petru and Kristoffer S. Mayfield of Hildebrand McLeod & Nelson, Inc.
BLACK vs. BNSF | VERDICT: $1,650,000.00 | Phoenix, AZ | APRIL 2013
Mr. Dale Black was injured on September 21, 2005 while working for BNSF Railway Company (“BNSF”) as a locomotive engineer headed eastward toward Winslow, Arizona. The train he boarded had originated in Barstow and, unknown (and not communicated) to Mr. Black when he took over the train, the train had experienced at least one undesired emergency brake application (“UDE”) prior to Mr. Black’s shift. As Mr. Black was operating the train toward Winslow, the train experienced severe slack action and another UDE. Mr. Black then recovered the air and proceeded toward Winslow. As Mr. Black operated the train into the Winslow terminal, the train experienced yet another UDE resulting in severe slack action and causing Mr. Black injuries to his hand, wrist, shoulder, and neck.
Mr. Black argued that BNSF was negligent because the train was made up with loads towards the rear of the train, making severe slack action more likely. He also argued that the UDE’s were in violation of the Federal Safety Appliance Act (”SAA”). BNSF responded that the train was made up per its rules and industry standards; that the slack action was Mr. Black's fault; that the UDE’s were not caused by defects in the train braking system; and that Mr. Black could identify no specific SAA defect.
BNSF also argued that Mr. Black’s injuries, medical treatment, and surgeries were not caused by any alleged slack action or UDE’s and that the injuries he sustained were instead caused by preexisting medical conditions. Mr. Black’s three surgeons testified on his behalf at trial. As a result of his injuries, Mr. Black never returned to and was ultimately disabled from work as a locomotive engineer. Because he could not return to work as a locomotive engineer, he began mitigating his damages by working as a trainmaster for BNSF in Winslow. At the time of trial Mr. Black had worked for several years as a trainmaster and planned to do so until retirement age.
The trial began on March 18, 2013 and the jury deliberated approximately three hours before coming back with a verdict of $1,650,000.00 for Mr. Black. BNSF’s last offer during trial was $325,000. The jury found BNSF negligent and in violation of the SAA for the UDE’s. Mr. Black was represented at trial by Anthony S. Petru of Hildebrand McLeod & Nelson, Inc. and Jason J. Romero.
VERGARA vs. UPRR | VERDICT: $569,500.00 | Los Angeles, CA | DECEMBER 2012
On October 16, 2008, Mr. Ron Vergara, age 36, was working as a trainman on a remote control job for Union Pacific Railroad at an industry called Lube Industries. While attempting to uncouple two railcars on a sharply curved track he encountered great difficulty with the cut levers. He made several failed attempts to uncouple the railcars which “tweaked” his back. Evidence at trial established that the railroad and Lube Industries had received numerous complaints from employees over the years that the curved track prevented the cut levers from operating as intended. Nonetheless, no changes in operations or the configuration of the track were made and no warnings were given to Mr. Vergara about the known risk of injury.
Union Pacific’s doctors initially diagnosed Mr. Vergara’s injuries as a “mild sprain,” but his family doctor realized he had serious injuries and Mr. Vergara ultimately underwent back surgery in the form of a right L4-L5-S1 hemilaminotomy, facetectomy and foraminotomy with microsurgical discectomy. As a result of these injuries, Mr. Vergara could not return to work for Union Pacific. While off disabled from work, the railroad also terminated Mr. Vergara due to his failure to provide updated medical information while he was on a leave of absence.
At the time of trial, Mr. Vergara’s vocational expert testified that after a training program he could obtain employment as a logistics coordinator. Despite his inability to work as a trainman, the railroad’s lawyers argued that Mr. Vergara was entitled to no more than $800.00 for his lost earnings, because the railroad’s doctors thought the surgery he underwent was not caused by the incident and was instead due to his history of chronic back problems. The railroad also offered surveillance video and relied heavily on printouts from Mr. Vergara’s Facebook page, where he had posted photographs of his post-accident activities, including frequent fishing.
Before trial, the railroad offered $200,000.00 to settle Mr. Vergara’s case. This offer was rejected and after a two week trial, the jury deliberated for a day and a half before returning a gross verdict of $850,000.00. The jury also determined that Mr. Vergara was partially at fault for the incident “for yanking on the cut lever” resulting in a net verdict of $569,500.00. Mr. Vergara was represented at trial by Victor A. Russo of Hildebrand McLeod & Nelson, Inc.
WINCKLER vs. BNSF | VERDICT: $3,081,600.00 | Phoenix, AZ | DECEMBER 2012
Mr. Joseph Winckler suffered severe injuries to his knee and ankle on May 29, 2007 when he was stepping down from a locomotive in Winslow, Arizona. He stepped down onto a tie that was longer than standard ties because the tie was part of an approach to a fueling rack in BNSF’s Winslow Yard. BNSF had failed to properly dress the tie with ballast or other material up to the top of the tie, as depicted in BNSF’s own engineering diagrams, and Mr. Winckler's knee and ankle were caused to twist as he stepped down. The incident was immediately reported and Mr. Winckler was eventually disabled from work as a conductor for BNSF.
Without work as a conductor, he went to work as a trainmaster trainee for BNSF in Winslow, but BNSF failed to offer him a permanent position at the end of his six month training period. As a result, he was forced to go back to his prior line of work to support his family, working as a wildland firefighter. Ultimately, he could not continue this work because of his knee injuries. Thereafter, he moved throughout the country chasing non-railroad work and struggling for years before trial to make ends meet to support his family.
While he was off work, he also continued to apply for jobs with BNSF, and attempted to work directly with BNSF's vocational manager without any success until shortly before trial when BNSF offered him a yardmaster trainee position in Seattle, Washington. At the time of the trial he was working as a yardmaster trainee, but was not fully qualified as a yardmaster and had not received a yardmaster seniority date. Following his yardmaster training, it was unlikely he could hold a permanent position as a yardmaster because of his lack of yardmaster seniority.
Following a three week trial in Phoenix, Arizona, the jury found BNSF liable for Mr. Winckler’s injuries and returned a verdict of $3,852,000.00, less a finding of 20% contributory negligence by Mr. Winckler, resulting in a net verdict for Mr. Winckler in the amount of $3,081,600.00. BNSF's "last and final" offer to settle the case was $75,000.
Mr. Winckler was represented at trial by Anthony S. Petru of Hildebrand McLeod & Nelson, Inc. and Jason J. Romero.
SUMLIN vs. BNSF | VERDICT: $1,300,000.00 | Stockton, CA | NOVEMBER 2012
On February 27, 2008, trainman Harvell Sumlin suffered a disabling knee injury when sloped mainline ballast shifted as he was crossing two sets of live mainline tracks to get to a train located on the departure tracks inside BNSF Railway Company’s Calwa Yard in Fresno, California. It was the custom and practice of van drivers in the yard to drop off road crews on the field side of the mainlines rather than drive into the yard via an access road about a half a mile away. Although there was no justifiable explanation, the yard and inbound crews who brought trains into the departure tracks were not directed by BNSF to pull those trains close to the access road from whence the crews could access their trains without the necessity of crossing live elevated mainline tracks with sloped mainline ballast.
Mr. Sumlin was 59 ½ years old with 37 years of service when he was injured. Medically, the jury found that the accident rendered symptomatic a previously asymptomatic degenerative knee. Mr. Sumlin had ill-advised arthroscopic surgery six weeks post-accident. When that surgery did not help his knee he underwent a total knee replacement. The total knee replacement was followed by a surgical manipulation under general anesthesia, a total knee replacement revision surgery, and yet another manipulation. The treating surgeon opined that there will also likely be a further revision surgery within Mr. Sumlin’s lifetime. BNSF argued that the knee would have become symptomatic within a year with likely disability. We pointed out that by contrast to the injured knee, the non-injured knee showed x-ray evidence of osteoarthritis four years prior to trial, but to this day remains asymptomatic. BNSF’s attorneys further argued that Mr. Sumlin would have retired when he reached his 60th birthday. Mr. Sumlin and his wife testified that he was planning to work at least until he turned 65 years old as she is 5 years his junior.
After two hours of deliberation, the jury found past economic damages in the amount of $410k; future economic damages of $270K; future medical expenses of $120K; past general damages of $250K; and future general damages of $250K. All combined, the verdict was $1,300,000.00 for Mr. Sumlin.
Mr. Sumlin was represented by Anthony S. Petru and Bradley W. Wahrlich of Hildebrand McLeod & Nelson, Inc.
WIPFF vs. BNSF | VERDICT: $2,718,653.00 | Fort Worth, TX | JANUARY 2012
On November 11, 2008, Ms. Stacy Wipff suffered disabling injuries to her low back while working as a conductor for BNSF Railway Company during a railcar switching operation at Seligman, Arizona. Ms. Wipff was riding a railcar when slack action whipped her about violently. The incident was witnessed by other railroad employees who observed that the railcars appeared to leap off the track and their wheels during the slack action. Evidence at trial established that BNSF was negligent in operating the train without the use of airbrakes and that a number of high ranking BNSF managers should have anticipated and prevented the poor train handling.
Ms. Wipff was thirty-eight years old at the time of her injury and she was initially diagnosed with an acute myofascial lumbar strain. Conservative physical therapy was ineffective, and she developed radiating pain down into her legs. An MRI of her low back revealed pathology at the L4-L5 and L5-S1 disc levels, including probable disc herniation. Multiple spinal injections and radio frequency neurotomies failed to provide long term benefit and pain reduction. On December 2, 2009, Ms. Wipff underwent a two level fusion of the low back with implantation of hardware to stabilize the spinal column. Unfortunately, the surgery did not fully relieve her pain, and a subsequent surgery was performed on May 18, 2011 to remove the painful hardware and bone-graph the transverse process at L4-L5. This surgery went well and by mid-2011 Ms. Wipff had progressed to the point where her pain was manageable.
Ms. Wipff was ultimately unable to continue working as a railroad conductor, a job she greatly enjoyed. Trial testimony by vocational rehabilitation experts indicated that Ms. Wipff may be employable in an office setting, but that her wage loss differential and loss of earning capacity is substantial. It was estimated that Ms. Wipff's economic loss, after mitigation of earnings for work outside of BNSF, was approximately $1,300,000.
Ms. Wipff was represented during the trial in Fort Worth, Texas by Anthony S. Petru of Hildebrand McLeod & Nelson and Steve Young of Tavormina & Young. The Tarrant County jury returned a verdict of $2,718,653.00 for Ms. Wipff.
SMESRUD vs. UPRR | VERDICT: $1,396,841.00 | Martinez, CA | OCTOBER 2011
On June 25, 2008, Mr. Douglas Smesrud was injured while working as a trainman on a local freight job one very dark night along the San Pablo Bay (part of San Francisco Bay).
As he was walking alongside his train he walked into a rusty piece of rebar which punctured his knee causing him to twist and fall to the ground. The next day he began experiencing back and leg pain which were later diagnosed as symptoms from two bulging discs. After a sixteen month period of failed conservative treatment he had the first of two back surgeries.
He was forty years old on the date of the accident. He is now much improved but continues with back pain and the need for medication. He is unable to return to his regular work as a trainman.
The evidence established that the rebar came from hundreds of tons of recycled construction materials which Union Pacific Railroad Company’s predecessor, the Southern Pacific Railroad, used to reinforce the railroad’s tracks. Both Southern Pacific and Union Pacific managers failed to anticipate the danger the construction materials posed to their train crews who used the walkways at night.
After the accident it took Union Pacific Maintenance of Way crews parts of three weeks to remove rebar from thirteen miles of walkways. To this day, some rebar remains near the location where Mr. Smesrud was injured.
Mr. Smesrud was represented during the ten day trial by trial attorneys Anthony S. Petru and Ryan J. Otis of Hildebrand McLeod & Nelson. After two days of jury deliberations, the jury returned a verdict of $1,396,841.00 in favor of Mr. Smesrud.
MEYERS vs. BNSF | VERDICT: $1,180,201.55 | Stockton, CA | AUGUST 2011
On May 1, 2003, switchman James R. Meyers suffered disabling injuries to his neck and low back when he fell to the ground due to hazardous footing conditions along the lead switching track at BNSF Railway Company’s Riverbank Yard in Riverbank, California.
As Mr. Meyers was engaged in “kicking” railcars down the lead track he pivoted to step away from the track after releasing a cutting lever and stepped on ballast that was left on top of asphalt near a carman’s crossing. His feet suddenly went out from under him and he fell face-first to the ground alongside the track. The ballast was scattered onto the asphalt the day before by a track cleaning machine called a yard cleaner. Mr. Meyers and other switchmen described the footing hazard as “walking on marbles” and “rolling on ball bearings.”
Evidence at trial established that BNSF was negligent for, among other things, failing to provide safe footing conditions along the switching lead, failing to clean up after the yard cleaner, and failing to warn Mr. Meyers of the footing hazard.
Mr. Meyers was almost forty-five years old on the date of the accident. He was disabled from railroad work by his physicians following a functional capacity exam and struggled to hold several non-railroad jobs. At the time of trial, he was working part-time as a commission-only orthopedic shoe salesman to the elderly. He underwent extensive treatment for his neck and low back, including numerous trigger point injections and epidurals. He continues to have chronic and disabling neck and low back pain.
This was a hard fought case and took a long time to get to trial because the railroad succeeded with a motion for summary judgment earlier in the case. Mr. Meyers fought the railroad through the appellate court and ultimately triumphed on appeal, thus getting his case remanded to the trial court for this jury trial.
Mr. Meyers was represented during the 9-day trial in Stockton, California by Kristoffer S. Mayfield and Victor A. Russo of Hildebrand McLeod & Nelson. Following approximately 4 hours of deliberations the San Joaquin County jury returned a net verdict of $1,180,201.55 in favor of Mr. Meyers.
COOK vs. UPRR | VERDICT: $2,323,000.00 | Reno, NV | MAY 2011
On April 12, 2008, Jonathan E. Cook was assigned to work as an engineer on a Union Pacific Railroad freight train which had been left at a siding east of Lovelock, Nevada. As Mr. Cook prepared the train to depart, he stepped in crater grease which apparently had been wiped off of someone’s shoe on the bull nose of the top step inside the trailing third locomotive cab. Due to the crater grease Mr. Cook slipped and fell causing a head injury, loss of consciousness, visual problems, post concussive syndrome (PCS), mild traumatic brain injury (MTBI), low back pain, and injury to his neck resulting in a three level cervical fusion. Mr. Cook was unable to continue working as a locomotive engineer for UPRR.
Evidence presented at trial established that the existence of crater grease in the walkway was a strict liability violation of the Federal Locomotive Inspection Act, (LIA) 49 U.S.C. §§ 20701, the Federal Railroad Locomotive Safety Standards, (FRLSS) 49 CFR § 229.119(c), and negligence under the Federal Employers’ Liability Act, (FELA) 45 U.S.C. §§ 51 et seq. The LIA allows a railroad to use a locomotive only when the locomotive, and its parts and appurtenances, are in proper condition and safe to operate without unnecessary danger of personal injury. The FRLSS prohibits the existence of a slipping hazard in a locomotive walkway. It is well established that a foreign substance, such as crater grease, which was left in a walkway on a locomotive establishes violation of the LIA and the FRLSS. Documents presented during discovery indicate that the locomotive had been serviced by UPRR mechanical forces in Stockton, California on April 10 or 11, 2008. Crater grease is specifically used to lubricate locomotive traction motors. Crater grease is on and around the ground of locomotive facilities. UPRR was forced to admit under cross-examination that the substance in the locomotive was crater grease.
Mr. Cook was represented during the 10-day trial by Anthony S. Petru of Hildebrand McLeod & Nelson. Following less than 3 hours of deliberation a Washoe County jury returned a verdict of $2,323,000 in favor of Jonathan E. Cook.
MARTIN vs. BNSF | VERDICT: $4,931,549.00 | Los Angeles, CA | FEBRUARY 2011
Mr. Martin was injured on November 14, 2008 while working as a switchman for BNSF at BNSF’s Hobart Yard in Commerce, CA. The accident occurred as a result of poor and overcrowded radio traffic and a defective radio which severely limited the crew to two operative channels. Due to excessive radio traffic the engineer mistakenly understood a 30 railcar count as a request to change radio frequencies. He did so. Mr. Martin soon saw a consist of locomotives on the track ahead of him and radioed the engineer to prepare to stop. The engineer heard nothing as he had already changed frequencies. Mr. Martin’s car counts to a stop and wash-out went unheeded. Immediately prior to the collision and to avoid being crushed, Mr. Martin jumped from the locomotive platform and suffered a grossly fractured right ankle. Mr. Martin was 28-years old on the date of the accident.
The severity of the ankle fracture and ongoing pain required Mr. Martin to undergo an ankle fusion surgery. His foot and ankle may ultimately require amputation. He continues to suffer from post-traumatic stress disorder.
The trial lasted ten days and the jury deliberated for one and a half days before rendering a verdict of $4,931,549.00 to compensate Mr. Martin. BNSF’s formal offer to compromise was $650,000 and was made contingent upon on Mr. Martin’s resignation from employment with BNSF.
Anthony S. Petru and Victor A. Russo of Hildebrand McLeod & Nelson represented Mr. Martin.
C.J. WILLIAMS vs. BNSF | VERDICT: $353,436.00 | Kern County, CA | DECEMBER 2010
Mr. C.J. Williams was injured on July 31, 2006 while working for BNSF Railway Company. He was 61 years old on the date of the accident and 65 years old at the date of trial. Mr. Williams had over 40 years of service with BNSF.
Mr. Williams was working as a conductor onboard a train headed from Bakersfield, CA to Needles, CA when he could proceed no further because his twelve hours on-duty had expired under federal law. While detraining to be swapped with another crew at a location called Klinefelter (10 miles outside Needles) he suffered a torn medial meniscus in his right knee when large steep mainline ballast gave way under his right foot as he descended the engineer’s side locomotive ladder. Mr. Williams was stopped at Klinefelter due to a red signal and train traffic ahead.
He underwent two arthroscopic meniscectomies, but was ultimately unable to return to work as a conductor under the instructions of his treating surgeon. Despite residual pain and some limitations, Mr. Williams was getting by without prescription pain medication.
The railroad argued that mainline ballast was safe despite admitting that it shifts unexpectedly underfoot and causes a large percentage of injuries to trainmen and engineers. Plaintiff presented the jury with BNSF’s “Walking Safely On Ballast” video. The railroad also attacked Mr. Williams’ credibility and claimed that he failed to maintain a 3-point stance while detraining the locomotive. The railroad further alleged that he should have stopped his train at a private road crossing a few thousand feet past the red signal at Klinefelter. With respect to his damages, the railroad argued that Mr. Williams chose to retire and should have gone back to work as a conductor or trainmaster.
The jury disagreed with the railroad, finding the railroad negligent and rendering a verdict of $353,436.00.
Kristoffer S. Mayfield and Anthony S. Petru of Hildebrand McLeod & Nelson represented Mr. Williams.
NEIL JENSEN vs. BNSF | VERDICT: $1,740,617.00 | San Joaquin County, Stockton, CA | NOVEMBER 2010
On April 25, 2003, at approximately 3:00 a.m. Neil Jensen, a 40 year old BNSF conductor was switching cars in the Fresno yard by pulling pins with his left arm. As Neil was making a cut, he reached down for the cut lever, pulled it up in the normal manner when the cut lever suddenly and abruptly stopped. Mr. Jensen immediately felt severe pain is his left arm.
Initially, two torn ligaments in his left wrist were misdiagnosed as a sprain. After a year of physical therapy Neil was returned to work, still in pain, only to experience a fall from a locomotive when his wrist gave out. Surgery followed. The surgeon, unfortunately, severed one nerve in the wrist and “nicked” another. A fellowship trained wrist specialist took over Neil’s care. Three more surgeries followed – the last a partial fusion – eventually allowing Neil to return to the trainman’s work he greatly enjoyed.
Mr. Jensen has constant discomfort and partial numbness in his wrist and hand, along with intermittent shooting nerve pain. He can work but requires 3 to 8 days off per month to preserve his wrist. At least one more surgery is required, likely a four bone partial wrist fusion and possibly a total wrist fusion.
Mr. Jensen filed suit against BNSF under the Federal Employer’s Liability Act, alleging that BNSF violated the Federal Safety Appliance Act by having a cut lever and coupler mechanism fail to operate properly at the time Mr. Jensen used it. Despite Mr. Jensen’s firsthand testimony, BNSF claimed the cut lever did work properly and tried to minimize the severity of his pain and suffering.
Anthony S. Petru and Ryan J. Otis of Hildebrand McLeod & Nelson represented Mr. Jensen. Following approximately three hours of deliberation, the jury returned a verdict of $1,740,617 for Mr. Jensen.
ROSENDALE McMACKIN vs. UPRR | VERDICT: $1,795,227.00 | Multnomah County, Portland, OR | OCTOBER 2010
On February 20, 2008, Rosendale McMackin, a 51-year-old Union Pacific Railroad (UPRR) conductor, was working onboard the lead locomotive of a nearly two mile long freight train pulled by five locomotives and weighing 10,546 tons. As the train slowed into Reynolds Siding east of Portland, Oregon the train underwent an undesired emergency brake application due to a defect in the train’s air brake system. The sudden and unexpected stop caused injuries to Mr. McMackin’s back and shoulder.
Expert witness testimony established that a defective air valve in a railcar near the rear of the train initiated the undesired emergency brake application. Brakes on the railcars applying from the rear of the train acted like an anchor against the locomotives as they continued to move forward until the train broke in two when a solid steel drawbar between the railcars severed. The locomotive engineer brought the train to a stop and testified that the incident felt like the cracking of a whip.
Mr. McMackin’s shoulder was surgically repaired, but lifting limitations prescribed by his orthopedic surgeon prevented him from returning to work as a conductor. Despite great efforts, some 2½ years later, he has found only seasonal non-railroad work. Mr. McMackin testified that he continues to suffer limited range-of-motion and pain in the injured shoulder.
Mr. McMackin sued UPRR under a federal law known as the Federal Employers Liability Act and alleged that UPRR’s equipment was defective and caused his injuries. UPRR admitted that it was liable for the undesired emergency brake application and break-in-two, but contended that Mr. McMackin did not suffer any significant or lasting injuries. Mr. McMackin was represented during the 7-day trial by Anthony Petru of Hildebrand McLeod & Nelson and John Coletti. Following one day of deliberations, the Multnomah County jury returned a verdict of $1,795,227.00 for Rosendale McMackin.
JEFFREY AND CAPITOLA SOMMER vs. SJVR | VERDICT: $2,133,000.00 | Kern County, CA | MARCH 2010
On February 14, 2006, in Bakersfield, California, plaintiff Jeffrey Sommer was working as a Teamster truck driver en route in a Freightliner tractor-trailer rig. As he proceeded to cross a public railroad crossing, a free-rolling loaded railcar weighing 130 tons shot out from behind an adjacent building striking the driver's side of his truck at 30-40 mph. The impact drove the truck and trailer perpendicular to the road, through power poles, a cinderblock fence, and rail crossing apparatus.
Extensive investigation and expert testimony established that the railcar’s air and handbrake system was rendered defective due to the improper addition of a non-conforming linkage (“clevis”) in the braking system. This linkage added four inches to the brake rigging, improperly allowing a key brake lever to hit against the undercarriage of the railcar, resulting in insufficient application of the brakes.
The fuel tanks of Mr. Sommer's truck ruptured and he feared that his truck would ignite and he might burn to death. He suffered multiple physical and emotional injuries including PTSD, Post Concussion Disorder, and Dissociative Disorder. These injuries resulted in permanent disability from gainful employment. Mrs. Sommer also brought her own claim for loss of consortium.
Plaintiff's attorneys Anthony Petru and Kristoffer Mayfield presented evidence and testimony to the jury during a 5-week trial. Following a half-day of deliberations the Kern County jury returned a verdict of approximately $2,133,000.00 for the plaintiffs.
JASON PERALES & JOHN DELSID vs. BNSF | SETTLEMENT: CONFIDENTIAL | San Joaquin County, CA | 2009
On June 14, 2006, Mr. Perales, engineer, and Mr. Delsid, conductor, were working on a train at Kismet, CA when their train was struck head-on by another BNSF train. The accident caused Mr. Perales and Mr. Delsid to suffer permanent, career ending injuries. Both cases resolved prior to trial for unprecedented confidential amounts. Anthony S. Petru and Kristoffer S. Mayfield were the trial attorneys on these cases.
CONLEY vs. UNION PACIFIC | VERDICT: $1,284,512.00 | Federal Court, Sacramento, CA | OCTOBER 2009
On March 1, 2003, Mr. Conley was working as a brakeman on a train from Roseville to Oakland, CA when he and his crew noticed smoke coming from a trailing locomotive. They stopped the train and Mr. Conley went back to the second locomotive to extinguish the fire before continuing to Oakland. He subsequently developed permanently disabling sinus and lung disease consistent with exposure to petrochemical fumes. Despite eyewitness testimony, UPRR argued that there was no fire and no documents supporting a fire. As it turned out, UPRR could not produce any Oakland service records whatsoever. Anthony S. Petru and John Furstenthal were the trial attorneys on this case.
WEAVER vs. BNSF | VERDICT: $1,437,848.00 (Gross) | Contra Costa County, CA | MAY 2009
On January 20, 2005, Mr. Weaver was working as an engineer in Richmond CA, when his engine struck another train which had fouled his track. He sustained injuries to his back resulting in surgery. BNSF argued that he failed to establish that the track was clear and failed to stop within half the distance of his move. Mr. Weaver contended that the track was clear when he began his move and that, because he was backing which created a huge blind spot, he had to rely on the direction of his crew. Anthony S. Petru and John Furstenthal were the trial attorneys on this case.
BRIAN WILLIAMS vs. TTX and UNION PACIFIC | SETTLEMENT: $1,300,000.00 | Los Angeles County, CA | MAY 2009
On August 23, 2006, Mr. Williams was working as a “tie down clerk” at an intermodal facility in Commerce, CA. After releasing a hitch mechanism on a TTX intermodal railcar, the hitch dropped violently, causing part of the mechanism to break off the railcar and violently strike Mr. Williams in the low back. Anthony S. Petru, Victor Russo, and Kristoffer S. Mayfield were the trial attorneys on this case.
ERIC LACY vs. BNSF | VERDICT: $1,080,000.00 | Fresno County, CA | MAY 2008
On May 4, 2004, plaintiff Eric Lacy was employed by BNSF as a locomotive engineer working in Fresno, California. He was injured when he was shoving backward and his locomotive came to an abrupt and unexpected stop. He suffered low back and shoulder injuries and was permanently disabled from engine service. Plaintiff alleged that the locomotive came to an abrupt stop due to BNSF’s negligence and a locomotive defect. Victor A. Russo and Kristoffer S. Mayfield were the trial attorneys on this case.
ARLIN KNUTSON vs. BNSF RAILWAY COMPANY and RED LION HOTELS CORPORATION | SETTLEMENT: CONFIDENTIAL | King County, WA | MAY 2008
On January 8, 2005, while being transported in a hotel shuttle van from the BNSF yard office at Pasco, Washington to the Red Lion Hotel Pasco for overnight lodging, Mr. Knutson was injured when the shuttle van was involved in a motor vehicle accident. Plaintiff suffered a closed head brain injury when the shuttle van collided with another vehicle in an intersection on icy roadway conditions. Plaintiff’s injuries were disabling and prevented him from continuing his employment as a locomotive engineer. In April 2008 the case resulted in a substantial confidential settlement during mediation at Tacoma, Washington. Frederick L. Nelson and Kristoffer S. Mayfield were the trial attorneys on this case.
WADE WRIGHT vs. UNION PACIFIC RAILROAD and GATX FINANCIAL CORPORATION | SETTLEMENT: CONFIDENTIAL | Multnomah County, OR | FEBRUARY 2008
On July 20, 2002, plaintiff Wade Wright was employed as a UPRR brakeman working in Klamath Falls, Oregon yard. Plaintiff boarded a tank car and while turning the handbrake wheel, the car sustained a sudden and unexpected severe movement causing plaintiff to be thrown off the platform and between the cars. Plaintiff’s foot was caught between the cars and sustained a crushing injury to his right foot resulting in partial amputation of his foot. At the time of his injury plaintiff was a resident of the state of Nevada. Plaintiff alleged that defendant UPRR was negligent for failure to provide plaintiff with a safe place to work in numerous particulars, including that defendant failed to inspect and repair their railcars and used a railcar with a defective cushioning device. Plaintiff also alleged strict liability for violation of the Safety Appliance Act in failure to have the cushioning device on a lumber car coupled to the tank car in good working condition. In 2008, shortly prior to trial in Portland, Oregon, the case resulted in a substantial confidential settlement. Anthony S. Petru was the trial attorney on this case.
DAMON BATTY vs. BNSF | VERDICT: $2,276,911.00 | San Joaquin County, CA | DECEMBER 2007
On February 21, 2004, plaintiff Damon Batty was employed as a BNSF locomotive engineer working in Stockton, California. He was injured when he slipped on an unknown “Armor All-like” substance on the floor of a locomotive cab. He suffered low back injuries and was disabled from engine service. At the time of trial he was in college to become a public school teacher. Plaintiff alleged that defendant BNSF was negligent for failure to provide plaintiff with a safe place to work. Plaintiff also made a strict liability claim for a violation of the Locomotive Inspection Act regarding BNSF’s failure to provide plaintiff with a safe and properly maintained locomotive cab. Contrary to the testimony of BNSF’s own managers, BNSF hired an expert to testify that the slippery substance had nothing to do with plaintiff’s fall. When asked if his opinion would change if the floor of the locomotive were made of Teflon and covered with cooking oil, he said his opinion would remain the same. Anthony S. Petru and Kristoffer S. Mayfield were the trial attorneys on this case.
CAMPBELL vs. PACIFIC HARBOR LINES | SETTLEMENT: CONFIDENTIAL | Los Angeles County, CA | NOVEMBER 2007
On January 26, 2005, Phil Campbell was killed while employed as a conductor for Pacific Harbor Line in Long Beach, California. Mr. Campbell was involved in a switching operation in a San Pedro yard known for its complicated track layout and confusing switch target signage. Mr. Campbell was hit by his train, knocked down, run over and killed. Plaintiff alleged that defendant Pacific Harbor Line was negligent for failure to provide Mr. Campbell with a safe place to work. This tragic incident was witnessed by an uninvolved locomotive engineer who was nearby, yet failed to warn Mr. Campbell of the impending danger. In deposition testimony a railroad official, responding to questioning by plaintiff’s attorney, admitted that the locomotive engineer failed in his duty to attempt to warn Mr. Campbell of the approaching railroad cars. In 2008, shortly prior to trial in Los Angeles, California the case resulted in a substantial confidential settlement. Anthony S. Petru was the trial attorney on this case.
JIMMY CHAMBERS vs. UNION PACIFIC RAILROAD | SETTLEMENT: CONFIDENTIAL | Los Angeles County, CA | APRIL 2006
On January 1, 2005, plaintiff Jimmy Chambers was severely injured while employed as a brakeman for UPRR. Plaintiff was bringing his train into the Delores Yard in Los Angeles when he was knocked down by his own train, run over, and both of his legs were amputated. Plaintiff alleged that defendant UPRR was negligent for failure to provide plaintiff with a safe place to work. Plaintiff also made a strict liability claim for a violation of a Federal Railroad Administration regulation known as the “Utilityman Rule”. Investigation and deposition testimony developed by Hildebrand McLeod & Nelson established that UPRR violated the Utilityman Rule by requiring that plaintiff’s conductor work simultaneously with plaintiff’s crew and another crew working nearby. Plainitff’s conductor became confused, failed to instruct and supervise the work performed by plaintiff, and contributed to causing plaintiff’s injury. Plaintiff alleged that the violation of the FRA regulation was a violation of a safety statute and thereby absolute liability against UPRR. In early 2007, during the second week of trial, a settlement was reached in what is one of the largest results ever achieved in a FELA case. Anthony S. Petru and Frederick L. Nelson were the trial attorneys on this case.
CHARLES MONTGOMERY vs. BNSF | VERDICT: $1,321,552.00 | San Joaquin, CA | NOVEMBER 2005
On July 8, 2001, Mr. Montgomery was working his second familiarization trip as a trainman when his train experienced an undesired emergency on the Tehachapi grade. Mr. Montgomery and his conductor walked back and found that they had a broken knuckle. The conductor replaced the knuckle with a different type, jamming it in place but rendering the knuckle inoperative. As the conductor and engineer pulled the front part of the train clear to switch out the defective car, Mr. Montgomery was instructed to walk back and tie 40 hand brakes to secure the train. It was pitch dark. Mr. Montgomery tied the 40 hand brakes and then proceeded to walk the remainder of the train when he slipped in steep unstable ballast with no walkway, injuring his shoulder and back. Both required surgery. BNSF fired Mr. Montgomery because he did not accurately report his past personal and health histories in his application. Anthony S. Petru was the trial attorney on this case.
CODY DICKINSON vs. UNION PACIFIC RAILROAD | VERDICT: $2,213,258.00 | Placer County, CA | AUGUST 2005
On July 19, 2001, Mr. Dickinson was injured when a ladder rung on the side of a boxcar failed causing him to drop and, when his grip failed, fall to the ground. He sustained injuries to shoulder and low back, resulting in one lumbar and two shoulder surgeries. Union Pacific argued failure to mitigate and believed that the jury in Placer County would not render a “large” verdict. Anthony S. Petru was the trial attorney on this case.
DAVID LEE and BOBBY O’DANIEL vs. PG&E, SHAW ENVIRONMENTAL, DOUBLE D TRUCKING and BNSF | SETTLEMENT: $4,100,000.00 | Contra Costa County, CA | JUNE 2005
On July 15, 2002, Mr. Lee (a conductor) and Mr. O’Daniel (an engineer) were operating an autorack train in Bay Point, CA, when a truck hauling dirt appeared to be stuck on a dirt crossing. The truck driver was killed and both Messrs. Lee and O’Daniel suffered back injuries. We brought suit against the trucking company (Double D), the contractor (Shaw), the principal (PG&E) and BNSF for poor condition of the crossing, as well as failure to utilize a flagman. After much finger pointing and several mediations, the cases settled on the first day of trial. Anthony S. Petru and David B. Draheim were the trial attorneys on this case.
AMY RICHARDSON vs. BNSF | VERDICT: $1,575,383.00 | Los Angeles County, CA | DECEMBER 2004
On September 29, 2001, Ms. Richardson suffered injuries to her neck and shoulder when a switch hung up as she was throwing it. An original diagnosis of shoulder strain was later found to be a brachial plexis injury and neck injury, resulting in several surgeries. Anthony S. Petru was the trial attorney on this case.
PEDRO CALDERON vs. MTA | VERDICT: $2,261,000.00 (Gross) | Los Angeles County, CA | JULY 2004
On July 19, 2001. Luis Calderon, age 18, was struck and killed by an MTA Blue Line train when he walked across the tracks at the Vernon Avenue station. His father, Pedro, alleged that his son’s death was caused by MTA’s failure to maintain a safe crossing. Although the crossing gates, bells and lights all worked properly at the time of this tragic incident, the crossing was unsafe because it lacked the additional safeguards needed to protect the public. MTA refused to make a settlement offer in this case. Victor A. Russo was the trial attorney on this case.
LIBRO vs. UNION PACIFIC RAILROAD | VERDICT: $2,500,000.00 | Federal Court, Reno, NV | FEBRUARY 2004
On February 21, 2004, Mr. Libro was a conductor on a train running from Elko to Sparks. En route, the train had an undesired emergency. Mr. Libro found that a brake pipe support hanger had broken, resulting in an uncoupling of the glad hands. Mr. Libro tied up the brake pipe and went looking for a siding or spur track in which to put the defective car. After several moves, he went to throw a switch to a spur track which hung up because the switch was spiked. He suffered injuries to his low back resulting in two surgeries. No comparative negligence was found by the jury because we were able to show that Mr. Libro was still engaged in dealing with a defective safety appliance at the time of his injury. Anthony S. Petru was the trial attorney on this case.
GARY ASHBEE vs. BNSF | VERDICT: $1,826,000.00 | San Joaquin, CA | DECEMBER 2003
On June 20, 2000, Mr. Ashbee was injured when a switch he was throwing at Edwards, CA, hung up on him. He failed to see that the switch was spiked, but it was not tagged or locked. Mr. Ashbee sustained injuries to his neck and low back, resulting in surgeries. BNSF argued that the neck injury was pre-existing (Mr. Ashbee had a prior neck surgery) and argued comparative negligence. Anthony S. Petru was the trial attorney on this case.
JIM FLAD vs. SAN JOAQUIN VALLEY RAILROAD | VERDICT: $1,702,932.00 | Kern County, CA | NOVEMBER 2001
On May 20, 1999, Mr. Flad suffered severe injuries when one of the handrails on an SJVR locomotive came loose as he was climbing aboard. Mr. Flad sustained a right shoulder impingement and a severe myofascial sprain. SJVR’s “experts” contended Mr. Flad could not have been injured because the involved forces were so “slight” and that he should have returned to work as a “crew hauler.” SJVR offered $150,000 to settle the case. Victor A. Russo was the trial attorney on this case.