FELA claimant files legal malpractice claim against Alton firm

Kelly Holleran Apr. 29, 2009, 7:51am

A Jacksonville man says he lost his chance to earn more than $500,000 after a lawyer failed to timely file a complaint for injuries the man claims he sustained while working for a railroad.

In a lawsuit Jesse M. Berry filed against Gregory M. Tobin and Pratt and Tobin in Madison County Circuit Court on April 24, Berry says he hired Tobin and Tobin's law firm on Jan. 27, 2005, to represent him for repetitive trauma damages he received while working for Norfolk Southern Railway Company.

Berry had valid damages under the Federal Employers' Liability Act, which included injuries to his lumbar spine, right knee, left knee and bilateral carpal tunnel syndrome, the complaint says.

Tobin obtained medical records from Berry's doctor, Harvey Scott III, that showed he only treated Berry for osteoarthritis of his left knee, which had been aggravated by Berry's job duties, according to the complaint.

However, Tobin never filed a complaint against the railroad on behalf of Berry, causing Berry to lose a substantial amount of money, according to the lawsuit.

"Plaintiff Berry's legal claims against said Norfolk Southern Railway Company for repetitive trauma damages – including his claim for left knee injury – were legally, scientifically, and medically meritorious causes of action under the FELA; and said FELA claims, if properly prepared and prosecuted, would ultimately have been won to a Macon County, Illinois jury in favor of Plaintiff Berry or would have settled for a sum in excess of $500,000," the suit states.

After continuously making phone calls to Tobin's office with no response, Berry decided to hire David Blunt of Blunt and Associates to represent him in the case.

Blunt filed a complaint in Missouri Circuit Court on Aug. 10, 2006, Berry claims.

However, that complaint was dismissed without prejudice to file in a more convenient forum within one year under the doctrine of forum non conveniens, Berry says.

So, on June 21, 2007, Blunt filed a complaint for the repetitive trauma he sustained in his left knee in Macon County Circuit Court.

This time, the court ruled in favor of N&S, saying Berry should have filed his complaint by late September of 2005 because he discovered the injury in September 2002, the complaint says.

Berry's remaining FELA claims – his claims pertaining to body parts other than his left knee – were settled for $40,000, according to court documents.

Berry claims Tobin was negligent and breached his fiduciary duties.

In the three-count suit, Berry is seeking a judgment of more than $150,000 in compensatory damages, plus costs.

Robert M. Owen of Decatur will be representing him.

Madison County Circuit Court case number: 09-L-422.

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