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Straight
Track Special Verdict Report
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Jury Returns $3.4 Million Record
Verdict In West Virginia For Injured Railroader
James L. Farina, Attorney
Hoey & Farina
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Designated Counsel James L.
Farina of Hoey & Farina, P.C., is proud to report that he obtained a
$3,431,026.00 verdict on November 23, 2009, in Bluefield, West Virginia
on behalf of Larry L. Koger, a former railroad conductor, and against
the Norfolk Southern Railway Co. (“NS”). The jury trial under the
Federal Employers' Liability Act (“FELA”) began on Monday, November 16,
and concluded Monday, November 23, 2009.
Mr. Koger was 32 years old when injured on July 29, 2007, while working
as a conductor for the Norfolk Southern Railway Co. in the Eckman Yard,
Keystone, WV. He was riding in a locomotive unit when it derailed. Mr.
Koger sustained a severe back injury that required surgery. Mr. Koger is
now disabled from his former job as a railroad conductor, but can work
in light duty jobs.
Immediately after the derailment, the locomotive engineer admitted to
his supervisors that the accident was his fault. The engineer stated
that he misinterpreted an advance approach signal as being for his track
and operated the train through a red signal. Mr. Koger told the same
supervisors that he couldn't see the signal from where he was seated
because the locomotive was operating in reverse with the long hood
forward and the crew was operating around a curve.
The supervisors decided to challenge Mr. Koger's statement. The NS
re-railed the unit, and called another crew to re-create the
locomotive's approach to the signal. The conductor was told to sit in
the same seat where Mr. Koger was seated and throw a crew pack out the
locomotive cab window at the moment when he was able to see the signal.
The test was conducted at least twice, and at no time did the conductor
throw the pack. When the conductor was asked why he never threw the pack
out the window, the conductor responded that he couldn't see the signal.
Several days after Mr. Koger received medical treatment for his injury,
he received a notice of investigation from the NS. The investigation was
conducted on August 8, 2007. One of the supervisors, the Road Foreman of
Engines, testified at the investigation that based on the re-enactment,
Mr. Koger could have seen the signal at approximately 261 feet away. The
Road Foreman failed, however, to disclose that the re-enactment
conductor confirmed that Mr. Koger could not see the signal. Also,
during the investigation, the engineer admitted the accident was his
fault, and Mr. Koger did not do anything wrong. Nevertheless, Mr. Koger
was fired by the Norfolk Southern Railway Co.
During the FELA trial, the same employee who participated in the
railroad's re-creation of the accident was called as a witness to
testify regarding the railroad's investigation of the incident. During
cross-examination at trial by the railroad, the employee was handed a
letter by the railroad's attorney informing him that his employment with
the NS had been terminated because, ostensibly, he had been unavailable
for service since mid-August, 2009. The termination letter was dated October 30,
2009, the same date that the plaintiff's liability expert gave his
videotaped evidence deposition. In the deposition on October 30, the
expert testified he relied greatly upon the re-enactment conductor's
deposition testimony, in which the conductor testified that an accident
re-creation staged by the railroad in 2007 proved the opposite of what
the railroad claimed.
Up to three weeks before trial the Norfolk Southern Railway Co. offered
only $100,000.00 to settle the case. At the commencement of trial, the
NS increased its offer to $700,000.00 to settle the case.
Congratulations to Larry Koger. Preliminary research indicates that the
verdict is a record for a single plaintiff in the Southern District of
West Virginia. If you have any questions regarding this case, please
contact Hoey & Farina at (888) 425-1212 or email
info@hoeyfarina.com.
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