Last week Hoey & Farina wrote about §60 of the FELA and the broad protection that it provides from railroad interference in voluntarily providing information to interested parties concerning the facts or circumstances of a railroad injury.
Hoey & Farina discussed this article and agreed that we would develop this topic in two parts. It was our plan to write about the substantial protection afforded to railroad employees by the Courts. However, just last week, the 7th Circuit Court of Appeals wrote a decision which may significantly restrict the protection provided to your attorneys. This decision, Weibrecht v. Southern Illinois Transfer, Inc. No. 00-1563, addressed the relationship between §60 and the ethical rule prohibiting contact with a party represented by counsel.
§ 60 OF THE FELA PROVIDES:
Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense: Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports.45 U.S.C. §60.
The legislative history of § 60 can be found almost entirely in a single Senate Committee Report which provides:
The railroads maintain well-organized and highly efficient claim departments. When an employee is injured, the claim agent promptly endeavors to procure statements from all witnesses to the infliction of the injury, takes photographs, measurements, and obtains all available information considered necessary to protect the railroad company against a possible suit for damages.
On the other hand, the claimant may be seriously handicapped in his attempt to procure the information necessary to the determination of the question of liability. For example a substantial number of the railroads subject to the FELA have promulgated rules which prohibit employees from giving information concerning an accident to anyone excepting certain specified company officials and claim agents.
The purpose of the amendment under consideration is to prohibit the enforcement of such rules and permit those who have information concerning the facts and circumstances of a personal injury to give statements to the injured employee or his dependents, or to someone authorized to represent him or them.
In relation to the investigation of facts upon which claims for injuries are based, humanity and justice demand that injured railroad men be accorded as much freedom of action as their employers enjoy.S. Rep. No. 661, 76th Congress, 1st Sess. 5 (1939).
It has long been settled law under this statute that a lawyer retained by an injured railroad worker for the purpose of pursuing a FELA claim is a “person in interest” to whom voluntary information regarding the facts incident to an injury or death may properly be provided. Sheet Metal Workers’ International Ass’n. v. Burlington Northern Railroad Co., 736 F 2d 1250, 1252 (8th Cir. 1984).
Various courts, State and Federal, have been asked by the railroads to consider whether the broad protection afforded by § 60 is restricted by the attorney ethics rules which are enacted in both the State and Federal courts. Prior to the Weibrecht Decision, Illinois Courts, both State and Federal, have construed § 60 to provide broad protection for the free flow of communication. These Courts have found generally that the attorney ethical rules are subordinate to the directives of Congress in enacting § 60 of the FELA. See generally: Mayfield v. Soo Line R.R. No. 95 C 2394, 1995 WL 715865 (N.D. Ill. December 4, 1995), Alejandria v. Burlington Northern Railroad No. 93-1512 (C.D. of IL 1995), Harper v. Union Pacific Ry. Co. 264 Ill. App. 3d 238 (5th District, 1994).Various courts of other jurisdictions have held that § 60 is subordinate to ethics rules, and that § 60 does not authorize communication independent of these rules. See generally: White v. Illinois Central Railroad Company, 162 F.R.D. 118 (S.D. Miss. 1995), Branham v. Norfolk and Western Railway Co., 151 F.R.D. 67 (S.D.W. Virginia 1993). Taking a different tack, at least one court has held that § 60 is an exception authorized by the ethical rules, which provides for communications established by law. Pratt v. National Railroad Passenger Corporation, 54 F. Supp. 2d 78 (D.C. Mass. 1999).
HOW FELA AFFECTS THE INJURED RAILROAD WORKER
You may be wondering how these legal approaches may affect you. Your attorney will at some point notify the railroad that you are represented by counsel. Often, the railroad will write back acknowledging your representation, and state that it is represented by counsel. The railroad may further admonish your attorney not to speak to any railroad employees. The legal issue now becomes to whom your attorney may speak without the presence of the railroad’s attorney.
To illustrate the problem, consider the following example. You are yarding your train in a railroad yard. You have dismounted from the train and are in communication with the engineer by radio. Another employee of the railroad is driving a crew through the yard in a van. That employee negligently runs into you with the railroad’s motor vehicle. This event is witnessed by the President of the railroad, and the members of the crew who are riding in the van.
Under the Harper decision, assuming the case is proceeding in a State Court in Illinois, your attorney can speak to any of the individuals on the scene of your accident. This means your attorney can speak to the President of the railroad (a managerial employee), the driver of the van (a person who’s negligent conduct may be imputed to the railroad) and the passengers in the van who are railroad employees and mere witnesses to the event (even if their statements are considered admissions of the railroad).
If we now look at the same facts from the Federal Court perspective announced for the first time in Weibrecht, the analysis will proceed differently. For purposes of the ethical rule involved, the Weibrecht Court had to define who is a party represented by counsel. In doing so, it adopted the broadest test known to apply to a corporate defendant. Under the Weibrecht analysis, managerial employees are considered one-in-the-same with the corporate defendant. Thus, once your claim is filed in the Federal Court, your attorney could not attempt to interview the President of the railroad who witnessed your accident due to his or her position within the corporation. Further, under the definition of a represented party, a person whose acts can be imputed to the corporation is also considered a party. Therefore, your attorney could not speak to the negligent driver of the van. The remaining individuals, the crew that witnessed the accident, may still be fair game for ex parte communication under § 60.At this point, the issue becomes whether the statements of these witnesses would constitute admissions on the part of the corporate party.
Whether or not the statements of these mere witnesses would be considered admissions is usually not determined by the Court until their testimony is offered at trial. The Weibrecht decision makes it clear that in an Illinois or Indiana Federal Court, managerial employees and employees whose acts may be imputed to the railroad cannot be contacted outside the presence of the railroad’s attorney. The Weibrecht decision also makes it clear that not all employees are represented by the railroad’s attorney. It remains less clear, however, just who these unrepresented employees are for purposes of § 60. The Weibrecht Court cited with approval a decision rendered by Magistrate Keys of the Northern District of Illinois. See generally: Orlowski v. Dominick's Finer Foods Inc., 937 F. Supp. 723 (N.D. Ill. 1996).Magistrate Keys, in a non-FELA case, was confronted with a motion to prohibit contact with corporate employees by attorneys representing the plaintiff. Magistrate Keys, applying the same ethical rules, determined that employees who were members of a collective bargaining unit could not be considered managerial employees for the purpose of the ethical rule. He also determined that if plaintiff’s counsel sought ex parte communications with non-management employees, whose conduct would not be imputed to the corporation, they are free to do so. However, if this is done outside the presence of an attorney, none of the statements made will be considered binding admissions on the corporation at the time of trial. Thus, under the Orlowski decision, your attorney would be free to contact the witnesses to your accident who were members of the crew riding in the van. Any statement made by these witnesses could be introduced in Court, however, the statement would not be considered a binding admission on the railroad.
EXERCISE YOUR WORK RIGHTS UNDER FELA
Although § 60 continues to provide you with the broad protections described by Hoey & Farina in last week’s article, the Weibrecht decision restricts the persons whom your attorney may contact. The full impact of this decision will have to be developed on a case by case basis. The FELA provides for jurisdiction in both the State and Federal Courts. We are reviewing the impact of this decision on how your claim will be investigated. We wish to present your claim in the forum which provides you with the most favorable legal treatment. However, nothing in the Weibrecht decision prevents you or your witnesses from exercising their right to provide information. It may be that this right will have to be exercised in the presence of the railroad’s attorney. If § 60 is to provide the level playing field intended by Congress, you will have to stand on your rights. If a railroad attorney attempts to discourage you from the exercise of your rights, this should be reported to your union officials.