Selected Cases

WRONGFUL DEATH & SURVIVAL ACTION – PUNITIVE DAMAGES - GRADE CROSSING ACCIDENT – SUMMARY JUDGMENT – FAVORABLE RESOLUTION
This case involved a double fatality accident at a railroad grade crossing in rural Brown County, Kansas.  The crossing was protected with crossbucks and advanced warning signs.  We uncovered evidence that the crossing’s warning devices were installed with federal funds and that the railroad’s conduct otherwise complied with federal standards of care.  Armed with that information, we filed a comprehensive motion for summary judgment based on federal preemption of the vast majority of Plaintiffs’ claims.  The Court granted the railroad’s motion, finding Plaintiffs’ claims of inadequate warning devices, excessive speed, failure to sound emergency horn, and inadequate train horn audibility all federally preempted. 

Further, Plaintiffs claimed that the railroad provided a “short horn” by 1.3 seconds under the applicable regulations.  We argued that Plaintiffs lacked evidence that the “short horn” was the proximate cause of the accident, the Court agreed, and granted our client summary judgment on that claim.  Plaintiff also made survival claims and on behalf of our railroad client we obtained evidence from medical providers and lay witnesses showing that neither decedent consciously experienced pain or suffering post-collision, an essential element of a survival action in Kansas.  Based on the evidence we submitted, the Court granted the railroad summary judgment on the Plaintiffs’ survival claims.  And because Plaintiffs’ survival claims were fatally flawed the Court granted our railroad client summary judgment on Plaintiffs’ punitive damages claim as well.

After the Court’s summary judgment decision, Plaintiff only had one claim remaining and while the Court’s decision on the viability of that claim was being appealed, the case resolved for a nominal amount.

FELA – SUMMARY JUDGMENT – BALLAST PREEMPTION     
A railroad employee sued the railroad claiming that the distance from the last step on the locomotive he was descending from to the ground was too long for him to safely negotiate.  Through discovery we obtained testimony from Plaintiff as to the precise location where he was disembarking.  Using that evidence and evidence that where the Plaintiff was stepping down to consisted of ballast that both supported the track structure and was in conformity with federal regulations, we were granted summary judgment arguing that Plaintiff’s negligence claims were preempted by federal law. 

FELA AND LIA CLAIMS – JURY TRIAL - DEFENSE VERDICT
A railroad conductor alleged that two separate bouts of minor heat exhaustion left her with permanent injuries that disabled her from her job.  Plaintiff claimed damages exceeding $700,000.  After a week-long trial, the jury returned a verdict in favor of our client on Plaintiff’s FELA negligence count and awarded Plaintiff only $7,500 on her claim under the Safety Appliance Act. 

FELA - SUMMARY JUDGMENT – ACUTE INJURY - STATUTE OF LIMITATIONS – CUMULATIVE TRAUMA - EXPERT STRICKEN
A locomotive electrician claimed both an acute back injury and a cumulative neck injury arising from his years of work for the railroad.  The court granted the railroad’s summary judgment motion on the acute claim, finding the action barred by the FELA’s statute of limitations.  Then shortly before trial, the court granted the railroad’s motion to strike the plaintiff’s liability and medical experts.  When the plaintiff conceded that these rulings effectively disposed of the case, the court entered summary judgment on all remaining claims. 

FELA – SUMMARY JUDGMENT – CUMULATIVE TRAUMA – CLAIM BARRED BY STATUTE OF LIMITATIONS
This case involved a switchman who claimed cumulative trauma injuries as a result of years of working for our railroad client.  Through substantial discovery efforts, we uncovered significant medical evidence that the Plaintiff knew or should have known that his alleged injuries were work related well more than three years before filing his FELA case.  We argued, relying on the Tenth Circuit’s Matson decision and distinguishing the facts of this case from recent state court decisions that found factual issues on whether Plaintiff had knowledge of a work related injury, that our railroad client was entitled to summary judgment because Plaintiff’s claim was not timely filed.  The trial court agreed, granted our client summary judgment, and dismissed the case with prejudice.

FELA – SUMMARY JUDGMENT – CUMULATIVE TRAUMA – CLAIM BARRED BY STATUTE OF LIMITATIONS – EXPERT CAUSATION TESTIMONY LACKING
Plaintiff was a mechanical department employee who claimed cumulative trauma injuries to his bilateral shoulders as a result of years of work for our railroad client.  Through discovery - including extensive medical record discovery and detailed depositions of Plaintiff and his medical providers - we developed substantial evidence that Plaintiff knew or should have known that his alleged injuries were merely work related well more than three years before filing his FELA case and were therefore time barred by the FELA’s three year statute of limitations.  We argued these facts, in light of the Tenth Circuit’s Matson decision, warranted summary judgment. The Court agreed and granted our motion on statute of limitations grounds.  We also argued, relying on the Myers case from the Seventh Circuit, that Plaintiff’s lack of expert testimony on the subjects of specific and general causation was fatal to his cumulative trauma case.  Again, the Court agreed with our argument and granted our railroad client summary judgment on that basis as well. 

FRSA WHISTLEBLOWER CLAIM – SUMMARY DECISION
This case involved a railroad employee who was terminated after it was learned during the course of discovery in his FELA case that the employee had failed to disclose in his employment application that he had been convicted of a crime.  The railroad employee’s termination occurred more than two-and-one-half years after reporting the work-injury underlying his FELA claim.  We argued in our motion for summary decision that the temporal gap between the employee’s report of injury and his termination showed a complete lack of causal connection between the injury report and any adverse employment action.  We also presented clear and convincing evidence that the railroad would have terminated the employee regardless of how or when it found out about the employee’s failure to disclose the conviction on his job application.  The trial court (ALJ) agreed on both grounds and granted our railroad client summary decision.

FELA - SUMMARY JUDGMENT – CUMULATIVE TRAUMA – NO EVIDENCE OF NEGLIGENCE – EXPERT CAUSATION TESTIMONY LACKING
Plaintiff was a boilermaker employed at one of our railroad client’s shops.  He alleged cumulative trauma injuries to his legs, hips, knees, and shoulders from his years of work and exposures to certain working conditions in that shop.  We filed a motion for summary judgment on multiple grounds, including Plaintiff’s lack of necessary expert testimony on the subjects of specific causation and general causation, as well as Plaintiff’s lack of evidence of railroad negligence.  The trial court, relying on the several federal circuit opinions we cited as support for our arguments granted summary judgment in favor of our railroad client.  Moreover, the Court also adopted our argument that Plaintiff’s medical expert witnesses’ opinions were inadmissible because they failed to comply with the Daubert expert opinion admissibility standard which had then just recently been adopted in Kansas.

FELA - SUMMARY JUDGMENT – CUMULATIVE TRAUMA - STATUTE OF LIMITATIONS –EXPERT STRICKEN
A locomotive pipefitter alleged cumulative trauma injuries to multiple parts of his body, claiming his injuries resulted from years of working for the railroad.  The plaintiff’s liability case hinged on the testimony of a well-known plaintiff’s expert.  The court granted our motion to strike the expert, finding his opinions inadmissible.  The court then granted the railroad’s summary judgment motion, finding that plaintiff lacked essential evidence of negligence and that several of plaintiff’s claims were time barred. 

FELA – DISMISSAL – CUMULATIVE TRAUMA
This case was filed by a railroad employee who worked as a fireman / oiler in one of our railroad client’s yards.  The Plaintiff claimed that she suffered from carpal tunnel as a result of her usual work tasks, specifically driving a railroad pick-up truck throughout the yard.  After conducting significant discovery, including depositions of Plaintiff’s treating doctors and experts, and while a summary judgment motion on the issue of Plaintiff’s lack of causation evidence was pending, Plaintiff dismissed her case less than one month before trial.

FELA – JURY TRIAL – FAVORABLE TRIAL RESULT    
In this case a switchman for one of our railroad clients alleged an injury to his back which he asserted was the result of the railroad requiring him to operate a defective or hard to throw track switch.  As a result of his back injuries, the Plaintiff alleged that he was not able to return to work for the railroad.  At the conclusion of the trial the Plaintiff requested that the jury award him in excess of $1 million dollars in damages.  After hearing evidence during the week-long trial, including evidence we presented that challenged Plaintiff’s negligence theories and damages, the jury awarded Plaintiff less than one-fifth of the damages he requested.           

FELA – JURY TRIAL – DEFENSE VERDICT
A locomotive electrician alleged that he suffered an inguinal hernia while attempting to remove a heavy end-of-train device from the cab of a locomotive. The railroad presented evidence that the Plaintiff’s story about where the end-of-train device was located in the locomotive when he found it was physically impossible and that his injury was not foreseeable.  After a week-long trial, the jury rendered a defense verdict. The verdict was later affirmed by the Missouri Court of Appeals and Missouri Supreme Court.

FELA – JURY TRIAL – FAVORABLE TRIAL RESULT   
In this case a carman for one of our railroad clients alleged an injury to his neck and shoulder resulting from his use of a press in the car shop which resulted in surgery on his neck and shoulder.   The Plaintiff asserted that the railroad was negligent in allowing an improperly designed and unsafe press to be used by its employees.   The Plaintiff alleged that as a result of his injuries he was not able to return to work for the railroad.  At the conclusion of the trial the Plaintiff requested that the jury award him approximately $1 million dollars in damages.  After hearing evidence during the week-long trial, including evidence we presented of Plaintiff’s comparative fault, the jury awarded Plaintiff a mere fraction of the damages he requested.           

FELA – JURY TRIAL – FAVORABLE RESULT
In this case a railroad engineer alleged an injury to his lower back which he asserted arose out of a rough ride in a locomotive he experienced in the course of his duties.  As a result of his lower back injuries, the Plaintiff alleged that he was not able to return to work for the railroad despite being released to return to his engineer work by his treating physician.  At the conclusion of the trial the Plaintiff requested that the jury award him in excess of $1 million dollars in damages.  After hearing evidence during the week-long trial, including evidence we presented that challenged Plaintiff’s negligence theories, his ability to return to work, and claimed monetary damages calculations, the jury awarded Plaintiff less than one-fifth of the damages he requested.           

FELA – SUMMARY JUDGMENT – CUMULATIVE TRAUMA – STATUTE OF LIMITATIONS – APPEAL AFFIRMED BY TENTH CIRCUIT
This case featured an employee of one of our railroad clients who alleged that he suffered from bilateral carpal tunnel as a result of his years of boilermaker work at a railroad facility.  As a result of significant discovery effort, including obtaining key medical records and taking depositions of Plaintiff and his treating doctors, we were able to create a summary judgment record that clearly demonstrated that the Plaintiff knew or should have known that his injury was merely work related well-more than three years before he filed his claim. After reviewing the record we created, the trial court granted our motion for summary judgment on statute of limitations grounds.  The Plaintiff appealed the grant of summary judgment in favor of the railroad to the Tenth Circuit.  After considering the appeal and summary judgment record, the Tenth Circuit affirmed the trial court’s decision and terminated this litigation.   

FELA - JURY TRIAL - DEFENSE VERDICT
A locomotive engineer sued the railroad for injuries he sustained when a 9mm derringer concealed in a fellow employee’s luggage discharged accidentally, shooting the plaintiff in the knee.  The plaintiff alleged that the gunshot wound caused permanent damage to his knee and left him with debilitating post-traumatic stress disorder.  He sought damages exceeding $1 million.  Following a week-long trial, the jury returned a defense verdict.  The Court of Appeals reversed, but on transfer, the Missouri Supreme Court affirmed the judgment for the railroad. 

FELA – INVOLUNTARY DISMISSAL ON MOTION – ACUTE INJURY CLAIM
A locomotive engineer alleged that he suffered a knee injury when he slipped on an oily locomotive walkway.  The Plaintiff’s estranged wife – also a railroad employee - told our client that the Plaintiff injured his left knee when he slipped and fell down an embankment while walking home drunk from a bar.  During his deposition, Plaintiff failed to answer multiple questions asked by attorneys for this firm that attacked his story of how the injury occurred.  We filed a motion with the Court seeking it to require Plaintiff to answer these questions.  After the matter was fully briefed and argued to the Court, the Court ordered Plaintiff to present himself for another deposition to answer our firm’s questions.  Plaintiff never presented himself for that deposition and otherwise failed to engage in discovery.  Consequently, due to those failures, the Court granted the railroad’s motion for an involuntary dismissal of the case.        

BREACH OF CONTRACT – COAL DELIVERY – SUMMARY JUDGMENT
A Wisconsin public utility sued railroad for breach of contract.  At issue was a multi-million dollar long-term contract for delivery of coal.  The utility claimed that our client failed to deliver the desired quantity of coal and at the desired rate as purportedly agreed to in the coal delivery contract.  On Summary Judgment, the railroad prevailed, with the federal court in Wisconsin finding no breach of contract.  Summary Judgment was upheld by the Seventh Circuit concluding in Judge Posner’s opinion that impossibility of performance and force majeure terms of the contract permitted a change in rate.

FELA  – CARPAL TUNNEL & NON-WORK ACTIVITY – DEFENSE VERDICT
This Jackson County, Missouri jury determined that a railroad employee’s claim that his work related injury resulted in his discharge from employment was unfounded.  The jurors agreed that his injury was caused by non-work activity, and that his carpal tunnel release surgery rehabilitated this employee to permit him to return to work.  Further, defense showed that the worker’s physical conditions, including obesity, thyroid problems and diabetes, were both non-work related and contributing factors to his susceptibility to carpal tunnel syndrome

PROFESSIONAL MALPRACTICE – ATTORNEY – SUMMARY JUDGMENT
A lawsuit filed in federal court by a Kansas City attorney’s former client alleged negligence in handling a prior discrimination case of the client against his former employer.  We moved for Summary Judgment on behalf of the attorney, arguing that the outcome of the discrimination case was not the result of any negligence or malpractice by the attorney.  The Court agreed, granting Summary Judgment, and the case against our client was dismissed.

PRODUCTS LIABILITY – TRAILER MANUFACTURER – SUMMARY JUDGMENT
Our client was sued by a man who was paralyzed in a fall from a hopper trailer that our client manufactured.  The lawsuit filed in Federal Court in Missouri sought millions of dollars.  One of the claims was that the trailer had a defective design.  We filed a Motion for Summary Judgment, seeking dismissal of the claims.  The trial court granted our motion.  On appeal, the United States’ 8th Circuit Court of Appeals affirmed the dismissal of all claims against our client. 

BREACH OF CONTRACT – MULTI-YEAR CONTRACT – DEFENSE VERDICT
A regional energy supplier sued our railroad client and another railroad for breach of contract in a multi-year coal delivery agreement.  The energy company sought millions of dollars in damages in federal court and desired to void the contract, which represented nearly a $500,000,000 agreement for the twenty year term.  After several weeks of testimony in Federal Court in Kansas, the jury reached a verdict in favor of our client, finding the railroads had followed the terms of the contract.  The jury did not award a single penny to the Plaintiffs.

PROFESSIONAL MALPRACTICE – INVESTMENT ADVISORS – COMPLEX LITIGATION
In several lawsuits brought by the Kansas Public Employees Retirement System (KPERS), seeking millions of dollars in damages, we represented a group of investment advisors to KPERS.  A number of parties were involved in this litigation that worked its way through the courts over a period of years. We secured favorable outcomes for our client.  Originally brought in the state courts in Kansas, these matters were heard in the Kansas Court of Appeals and the Kansas Supreme Court, and ultimately reached the United States Supreme Court.

WRONGFUL DEATH – GRAIN CARS – COURT OVERTURNS JURY’S VERDICT
The family of a grain worker who suffocated inside a grain hopper car sued our client, a national railroad company, which was operating the train cars.  They claimed negligence and failure to warn of an unsafe condition. The jury hearing the case initially found in favor of the man’s family, but the judge determined that based on the evidence presented, the railroad company was not legally responsible and entered a verdict in favor of our client.  On appeal, the Federal Court of Appeals for the 10th Circuit affirmed the judge’s verdict for the railroad. 

PROFESSIONAL MALPRACTICE – ATTORNEY – SUMMARY JUDGMENT
An attorney representing a criminal defendant in Kansas State Court was later sued by that client who alleged breach of contract and negligence in the attorney’s handling of his defense.  Charged with possession of more than three hundred pounds of marijuana with the intent to sell and related counts, a plea was negotiated.  The disgruntled client intended to go forward at trial without expert opinion regarding the standard of care or intricacies of criminal defense representation.  We filed for Summary Judgment asserting the case would fail without expert testimony, and prevailed with the trial court.  The case was dismissed against our client.  That ruling was upheld on appeal and an attempt for rehearing of the appeal.

NEGLIGENCE – FITNESS CENTER – SUMMARY JUDGMENT
We represented a fitness center in this suit brought by a woman who claimed she lost her eye as a result of negligence and failure to warn of the dangers of rubber-band-type exercise equipment she used at our client’s facility.  Our Motion for Summary Judgment was granted by the Kansas District Court, and that decision was affirmed by the Kansas Court of Appeals.

PROFESSIONAL MALPRACTICE – ATTORNEY – SUMMARY JUDGMENT
In this legal malpractice case, we defended a lawyer against claims of fraud and malpractice in connection with the handling of a corporate bankruptcy matter.  The Federal Court in Kansas granted our motion for summary judgment, finding our client was not at fault.  This ruling was upheld in the Court of Appeals.

FELA – KNEE INJURY– DEFENSE VERDICT
A Wyandotte County District Court jury rendered a defense verdict in a case in which a railroad track worker claimed that a spike cart was defective because he fell through a hole in the cart and injured his knee.

WRONGFUL DEATH RAILROAD – GRADE CROSSING ACCIDENT – DEFENSE VERDICT – REVERSAL – FAVORABLE RESOLUTION
Decedent, a man in his 40’s, was driving a farm tractor on a gravel road in South Central, Kansas.  He approached a railroad grade crossing protected by advance warning signs, flashing lights, and crossbucks.  Decedent was familiar with the crossing.  The accident occurred in daylight.  The train crew testified that the tractor did not stop, but pulled onto the crossing in front of the train.  The train crew was operating the train in a proper manner, was blowing the whistle, and was operating within the federally mandated speed limit.  Plaintiff’s family, who brought the lawsuit, alleged that the flashing lights were not working, and that it was an unsafe crossing.

After a two-week trial, the jury returned a defense verdict.  Plaintiff appealed and the Kansas Court of Appeals reversed and remanded the case for a new trial on a technical issue involving jury instructions.  The case was then resolved on terms very favorable to the railroad.

FELA – BACK INJURY – DEFENSE VERDICT
A railroad conductor claimed that he injured his back while throwing a switch that he alleged was poorly maintained.  The Jackson County jury found in favor of the railroad.

DERAILMENT – WATER DISCHARGED ON RAILROAD PROPERTY – LANDOWNER HELD RESPONSIBLE
This case arose out of a railroad derailment that occurred in downtown Wichita, Kansas.  The derailment resulted in significant damages to railroad property, as well as buildings adjacent to the railroad’s trackage.   The firm’s investigation and discovery uncovered significant evidence that an adjoining landowner was discharging water onto the railroad’s property.  This evidence enabled the firm to defend the damages claims made by certain property owners and recover damages, via settlement, from the property owner who was discharging water onto railroad property.

GRADE CROSSING ACCIDENT – DIVERSITY ISSUES – REMOVAL TO FEDERAL COURT APPROPRIATE
This case involved a train versus motor-vehicle accident near Wichita, Sedgwick County, Kansas.  The railroad removed this case on diversity of citizenship grounds from state court to federal district court.  The firm successfully defended against Plaintiff’s attempt to remand the case by amending her Complaint to add  a new Kansas resident defendant.  The Court, in denying remand, for the first time in this district, adopted case authority from other jurisdictions that noted that diversity is determined at the time an Amended Complaint is filed.  At the subject time, the plaintiff was a resident of Texas and thus diversity was preserved.  Moreover, the Court adopted our argument that the plaintiff had not pled a colorable survivorship claim, thus the citizenship of the decedent did not matter in the diversity analysis.

GRADE CROSSING ACCIDENT –– RULE 35 MEDICAL EXAMINATION – PLAINTIFF’S UNREASONABLE CONDITIONS ON EXAM DENIED
A garbage truck collided with a train in rural Pottawatomie County, Kansas.  During discovery, the railroad sought to require a plaintiff to submit to a medical  examination as provided for in Rule 35 of the Federal Rules of Civil Procedure.  The subject plaintiff would only agree to appear upon certain conditions that would have corrupted the Rule 35 process and been manifestly unfair to the railroad’s discovery.  After briefing and arguing the issues, the Court adopted the Rule 35 reasoning advanced on behalf of our client, following the majority of judges of the Kansas federal district court and denied the plaintiff the unfair conditions he sought to impose on his Rule 35 exam.     

FELA – DISHONESTY IN PLAINTIFF’S DEPOSITION – CASE DISMISSED WITH PREJUDICE
A former railroad employee filed a lawsuit in Wyandotte County, Kansas under the Federal Employers’ Liability Act.  During this former employee’s deposition, while under oath, he made numerous claims about his employment with our railroad client, his alleged employment with a railroad in the Far East, and his service with the United States armed forces, which were  false and inaccurate.  On behalf of the railroad, we filed a Motion to Dismiss based on these discovery abuses.  The Court granted our Motion, and dismissed the case with prejudice.   

RAILROAD CROSSING ACCIDENT – SUBJECT MATTER JURISDICTION – IMPROPER PARTY –DISMISSAL AFFIRMED
This railroad crossing accident case was originally filed in the United States District Court for the Western District of Missouri.  We filed a Motion to Dismiss for lack of subject matter jurisdiction based on the lack of complete diversity between plaintiff and the defendants, including our railroad client.  The lawsuit was then filed in Missouri State Court.  On our motion, the state court dismissed the case because it was brought improperly in the name of the Estate of the Decedent and not by his heirs.  In opposing the plaintiff’s subsequent motion to amend the pleadings to reflect the proper party, we successfully argued that such an amendment would not save the lawsuit because a proper party had not timely commenced the lawsuit.    In an unpublished decision, the Missouri Court of Appeals for the Western District affirmed this decision.