Stack dismisses FELA claim pursuant to forum non conveniens

Steve Gonzalez Nov. 5, 2008, 7:57am

A Federal Employers' Liability Act (FELA) lawsuit filed in Madison County by an Indiana resident has been dismissed based on the doctrine of forum non conveniens.

Madison County Circuit Judge Daniel Stack entered his order on Oct. 22, dismissing the claims brought by George Ertel against Norfolk Southern Railway.

Norfolk argued Ertel's suit had no substantial connection to Madison County and that he resides in Fort Wayne, Ind., which is 355 miles from the courthouse in Edwardsville.

Ertel filed suit against Norfolk on June 12, alleging his ear injuries were the result of Norfolk failing to reduce noise levels or to provide heavy protection to employees working in the vicinity of lump yards, retarders and track machinery.

In addition, Ertel alleged that train whistles and/or horns were located in close proximity to occupants and the railroad failed to take steps to "engineer out" excessive noises.

Ertel has been employed as a conductor with Norfolk since 1979.

Ertel also alleged that when Norfolk "finally" instituted an audiometric testing program, it was only for the purpose of developing a defense to hearing loss lawsuits.

Ryan M. Furniss, Steven L. Groves and Gerard B. Schneller of Holland, Groves, Schneller & Stolze in St. Louis represent Ertel.

Shortly after the suit was filed, Norfolk asked Stack to dismiss the claim arguing all of the known witnesses live in Indiana or Ohio.

The railroad also argued all of Ertel's medical providers are located in Fort Wayne.

Norfolk also argued that there is no legitimate reason to "burden the jurors and taxpayers of Madison County when the state of Indiana has a legitimate interest in this case."

According to Norfolk, the unfairness of imposing the expense of a trial and the burden of jury duty on the residents of a county with little connection also favored dismissal of the case.

A witness for the railroad, Frank Mahoney, a district claim agent based in Fort Wayne signed an affidavit stating it would be "inconvenient for Norfolk Southern to replace any employee/witnesses who may be required to travel to Edwardsville, Illinois for the trial."

Mahoney also said it would inconvenient for Norfolk to transport the witnesses to Edwardsville for trial and also pay their wages and expenses for the duration of the time spent at trial.

Kurt Reitz of Thompson Coburn in Belleville represented Norfolk.

Stack does not have the jurisdiction to transfer a case to Indiana; therefore, he dismissed it. Ertel will have to refile the case in Indiana.

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