Jury finds for CSX in FELA case

By Amelia Flood | Oct 15, 2010

Collignon Gunn

A Madison County jury awarded CSX Transportation a verdict Thursday evening in a Federal Employer's Liability Act (FELA) trial involving a former track supervisor.

Neither plaintiff Russell "Dewey" Aper nor defense counsel Richard Nash had comment following the verdict that came at about 4:25 p.m. after less than two hours of deliberations.

Aper, a track inspector, had sued CSX for allegedly failing to provide him with a safe work place.

The alleged failure, the plaintiff claims, led Aper to injure his back in October 2006.

CSX counters that Aper failed to take the proper care or call for help when he moved track parts that allegedly caused the injury.

According to statements made at the trial's opening and in video deposition testimony from economist Leroy Grossman, the plaintiff sought damages topping $500,000, including fringe benefits and lost wages.

The trial opened Tuesday with a day of jury selection.

Wednesday saw Aper's testimony and deposition testimony.

The start of the trial's second day of testimony was delayed until 10 a.m. as attorneys worked out jury instructions with Circuit Judge Dennis Ruth.

Aper's former supervisor, Chad Broski of Elk Park, Minn., took the stand to open the defense case.

Broski testified about CSX's emphasis on safety.

"That safety culture was the utmost from the first thing when you got in in the morning," Broski said. "The most important thing was for the employees to go home safely. We were a family."

Broski said that the railroad had daily and monthly safety meetings and that employees were free to call for help or to stop work they did not believe they could safely do.

He said Aper knew the proper lifting techniques and that he was also aware he could call for help if needed.

Broski said he was not aware of Broski's more than 15-year history of back problems until a September 2006 incident when Aper injured his back and had to go for medical treatment.

Broski said that Aper returned to work saying he was fine and that he had the proper clearance from his doctor.

Aper reinjured his back under a month after the September incident.

Broski said he had told Aper upon his return to work after the first injury that he needed to use proper lifting techniques or machine aids if necessary.

"That we couldn't afford for himself to get injured," Broski said.

In her closing argument, plaintiff's attorney Amy Collignon Gunn stressed that CSX did not ask for a capacity evaluation after Aper's September accident, telling jurors it was proof the company did not ask the questions needed to ensure her client's safety.

"They don't question whether their employee can do the work," Gunn said. "You walk in with a slip and you're good to go."

Gunn took issue with Broski's surprise at Aper's history of back issues, using his own words of "stunned" as further evidence the company did not consider Aper's health.

"Do you get to stick your head in the sand?" Gunn asked. "Do you get to be 'stunned' when it's your duty under the law to assign employees work they are suited for?"

The plaintiff's attorney stressed that her client's injury had occurred at work and that CSX stipulated to that fact Oct. 13.

"He wasn't off playing hooky somewhere and he got hurt and now he's trying to blame it on the railroad," Gunn said. "It's not a culture in the railroad where you cannot do your job. The culture is to go do your job and that's what Dewey Aper was doing."

Defense counsel Nash told jurors his client didn't see it quite that way.

"Needless to say, we have an incredible and total disagreement about what the evidence showed," Nash said.

Nash told jurors his client had provided what the law required, "a reasonably safe work place."

"Not an absolutely safe place to work where no one gets hurt," Nash explained.

Nash pointed to Broski's testimony as evidence that the company had been concerned about Aper's condition and that he would have been provided any help he asked for.

Nash highlighted CSX's policy of allowing employees to use their own doctors to evaluate injuries, telling jurors that no worker would favor being forced to use a company doctor in that situation.

But by going to his own doctor, Aper allowed the company to go by that physician's word.

"We have a right to rely on what you're telling us," Nash said. "And we have a right to rely on what your doctor is telling us. What they are saying is that we should have taken his job away from him, one way or the other."

Nash pointed to Aper's own testimony that he had felt well enough to return to work after the September injury.

"At every turn, where he had an opportunity to stop the process from the time he returned to work he should have said something," Nash argued. "If he had complained at any time there would have been help on the way. Mr. Aper didn't give them that chance."

In her response, Gunn reiterated that CSX turned a blind eye to her client's needs.

"They stuck their head in the sand and the law does not allow them to do that," Gunn said. "Mr. Nash is trying to convince you that it's Dewey Aper's fault and the law does not allow that. This company continues to benefit from the backs of its workers including Dewey Aper."

Jury deliberations began at 3 p.m. after instructions from Ruth.

Ruth entered judgment in the case immediately following the 4:20 p.m. verdict.

Gunn indicated in a question to Ruth following the judgment's entry that she plans to possible file a motion for judgment notwithstanding the verdict.

Gunn and Ann Brockland represent Aper.

Nash represents CSX.

The case is Madison case number 07-L-562.

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