Union Pacific did not include witness testimony; Fifth District reverses St. Clair County verdict

Kelly Holleran Feb. 9, 2012, 12:18am


A former railroad worker who was allegedly hurt while working for Union Pacific Railroad Company is allowed a new trial for knee injuries he sustained on the job, the Fifth District Appellate Court of Illinois ruled Friday.

Justices James M. Wexstten, Richard P. Goldenhersh and Melissa A. Chapman found that Kenneth Bradshaw, a brakeman, switchman and conductor for defendant Union Pacific Railroad Company from 1960 until 2003, proved that the railroad's attorneys violated an Illinois Supreme Court rule when they called forth two witnesses without including their planned testimonies in depositions.

Bradshaw filed a lawsuit on May 8, 2006, against Union Pacific after he claims he developed bilateral osteoarthritis in his knees due to repetitive stress caused from his work activities. Because of his injuries, Bradshaw underwent knee replacements in both of his knees.

In his complaint, Bradshaw claimed his knee conditions were caused because of his job, which required him to jump from moving locomotives onto uneven surfaces.

A jury initially returned a verdict in favor of Union Pacific. However, the Fifth District Appellate Court of Illinois reversed that ruling in part on Friday and remanded the case to St. Clair County Circuit Court.

The justices found that the defendants failed to comply with an Illinois Supreme Court rule that mandates attorneys to reveal any controlled expert witnesses they plan to interrogate during a trial. Lawyers must identify the witnesses in written interrogatories.

Attorneys for Union Pacific failed to disclose the conclusions or opinions that the expert witnesses planned to present during the trial, although they did identify the two men as expert witnesses and described the general subject matter intended to be discussed during the trial, Wexstten wrote in the opinion for the Fifth District Appellate Court of Illinois.

"It is not as if the defendant failed to disclose these two expert witnesses at all and then sought to ambush the plaintiff during trial by attempting to put them on the stand," Wexstten wrote. "Yet, because the defendant's Rule 213 disclosures failed to reveal any conclusions or opinions of these two intended expert witnesses, it is fair to say that the plaintiff may have been surprised by the extent of their testimony. It is also fair to assume that the plaintiff may not have been able to effectively cross-examine these two expert witnesses, given that their conclusions and opinions remained unknown."

Because St. Clair County Associate Judge Vincent Lopinot did not adequately reprimand Union Pacific's attorneys and because it allowed the testimony of the expert witnesses, justices for the Fifth District Appellate Court of Illinois remanded the case.

The justices, however, refused to remand the case for any other reasons brought forth by the plaintiff.

The plaintiff, for example, argued that the court erred when it failed to adequately instruct the jury of his claim under the Locomotive Inspection Act. The act states that railroads may require their employees to work on only safe equipment. Bradshaw contended the speed of the locomotive was not safe and led to his knee injuries, but justices disagreed.

"Nothing from either the plain language of the LIA itself or germane case law supports an interpretation that the liability under the LIA arises from the manner in which a railroad locomotive is operated," Wexstten wrote. "As such, we find that the trial court did not err in refusing the plaintiff's proposed jury instructions with regard to count II of his amended complaint."

Bradshaw contended that Lopinot also wrongly allowed testimony regarding his wages. He argued that the testimony swayed jurors to believe that he made enough money to assume the risks associated with the job. Justices again sided with Union Pacific on the issue.

"Reviewing the testimony at issue, we do not agree with the plaintiff's assertion that it constitutes improper assumption of risk evidence, especially in light of the fact that nothing in the record indicates that assumption of risk was ever raised or implied by the defendant as an affirmative defense during trial," Wexstten wrote.

Union Pacific handed the jury highlighted texts during its deliberation, which Bradshaw claims should not have been allowed because it emphasized rules that seemingly place all responsibility for safety on the employees. Justices on the Fifth District Appellate Court say the text was appropriate.

"Because the highlighted portions of the text in defendant's exhibits O, P and Q were actually read to the jury, we do not find that the trial court abused its discretion by allowing these exhibits to be submitted to the jury and certainly, such action does not rise to the level of reversible error," Wexstten wrote.

Finally, Bradshaw claims Lopinot should have allowed four pieces of evidence into testimony, which included all repetitive injury claims filed against the railroad from 1980 until now. The evidence, which was not permitted during the trial, would have shown the numerous injuries many of Union Pacific's workers sustained throughout their employment, Bradshaw contended.

Justices, however, ruled that the injuries outlined in the evidence were not similar to Bradshaw's knee problems. Therefore, refusal to admit the evidence was permissible.

"The exhibits at issue are too varied in the location and description of the accident site and/or the nature of the injury allegedly arising therefrom," Wexstten wrote. "Even if these exhibits were admitted as 'dissimilar prior accidents' to show that the defendant had notice of the hazardous nature of uneven ballast or of dismounting moving locomotives, this evidence would not be per se indicative of the need to establish an ergonomics program."

Fifth District Appellate Court case number: 5-10-554.

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