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 1-888- 425-1212 or email [email protected].