Conductor's personal injury suit at trial on damages in Lopinot's court after prior mistrial

By Heather Isringhausen Gvillo | Jul 11, 2017

After a mistrial was ordered in a railroad employee’s personal injury lawsuit against Union Pacific, the case is at trial on the issue of causation and damages in St. Clair County Circuit Judge Vincent Lopinot’s courtroom.

After a mistrial was ordered in a railroad employee’s personal injury lawsuit against Union Pacific, the case is at trial on the issue of causation and damages in St. Clair County Circuit Judge Vincent Lopinot’s courtroom.

The suit alleging plaintiff Matthew Silberman was knocked unconscious while setting railcars first went on July 11, 2016. After four days of trial, defendant Union Pacific Railroad Company informed the court that the download data it provided to the plaintiff was false, resulting in a mistrial.

On Sept. 26, 2016, Silberman filed a motion to strike Union Pacific’s answer and affirmative defenses and sought default judgment on the issue of liability for the defendant’s alleged destruction of evidence and false representation of evidence.

The plaintiff argued that he and engineer Ulysses Evans argued at trial over where the train eventually came to a stop, which would not have been an issue “if Defendant had not destroyed the TIR, which is the video from the lead locomotive engine that would have shown exactly where the train stopped for Silberman to disembark.”

“Having destroyed a known piece of evidence, Defendant arrived in Court on Friday morning with a new download, claiming they ‘incorrectly’ calibrated the first download because the wheel size was measured incorrectly by [Kirk] Spratlen. Defendant then produced a ‘revised’ new download,” the motion stated.

Spratlan was identified at the first trial as the manager who downloaded data from both locomotive engines at issue.

Silberman moved to exclude the new download and any related testimony during the first trial. The court granted the motion at first but later reversed its position and granted Union Pacific’s motion for a mistrial over Silberman’s objection.

The court concluded that it could not permit the case to go to the jury if there was a question on the accuracy of what Union Pacific originally produced as the download.

“Not surprisingly, the new download Defendant magically came up with on the fifth day of trial turned out also not to be correct,” the motion for default judgment stated.

The plaintiff explained that the new download from the lead locomotive unit did not match up with the data from the second unit.

Plaintiff’s counsel Mark P. Dupont of Dupo was advised that he could file a motion for sanctions for attorney fees and costs and a motion to strike the defendant’s pleadings after the parties had a chance to review the “new” download.

In his motion, Silberman argued that default judgment is an appropriate sanction.

“A default judgment is the only sanction that can fix what Defendant caused, whether it is viewed in terms of what it initially caused by producing the download which is clearly inaccurate when measured against the second unit or the physical evidence at the scene,” the motion stated.

Silberman also filed a motion for sanctions and attorney’s fees on Sept. 26, 2016.

“Defendant is responsible for all costs and attorney fees associated with its disclosure of false evidence as Silberman will now have to ‘start all over’ and incur duplicative expenses and costs that would not have been incurred but for Defendant’s supplying false evidence, data which it represented under oath and sworn testimony on numerous occasions as the true and accurate download data from the locomotive engine UP4885,” the motion stated.

Union Pacific filed an opposition to the requests for sanctions and default judgment on Dec. 2.

Lopinot granted Silberman’s motion on Feb. 10, entering judgment in favor of the plaintiff on the issue of liability.

Union Pacific filed a motion to reconsider on March 7 through attorneys Thomas E. Jones and Harlan Harla of Thompson Coburn LLP in Belleville, arguing that default judgment is not proper.

The defendant argued that there is no evidence that it intentionally destroyed evidence. Silberman allegedly requested “actual video of the incident” in discovery, which was allegedly preserved.

However, the video shows an area in front of the lead locomotive, over 3,700 feet from where the alleged incident occurred.

“There never was an actual video of the incident,” the defendant argued.

Union Pacific further argued that the plaintiff’s issue with the destroyed footage from when the train made its first stop at 11:18 p.m. would not have been useful because the plaintiff never got off the train at the first stop.

As for the dispute involving the event recorder download, the defendant argued that it acknowledged that the wrong wheel size had been entered, making the initial download inaccurate.

“There is no evidence of any deception or intention to misrepresent on the part of Defendant,” the motion states.

The second download allegedly had the correct wheel size.

Lopinot denied Union Pacific’s motion to reconsider on March 21.

Silberman filed his one-count complaint on May 21, 2012.

He alleged he was employed as a brakeman/conductor in the operating department for Union Pacific out of its Dupo or Alton Southern yards in St. Clair County.

He claimed he was called to take a train from Dexter, Mo., to the defendant’s Alton Southern yard on March 31, 2012. He was working with Union Pacific engineer Evans. The train consisted of 109 railcars, consisting of a mixture of hopper cars, refrigerated cars and loaded auto racks.

His crew was required to set out 50 hopper railcars in the Flinton yard just after midnight on April 1, 2012. The crew allegedly stopped the train, and Silberman dismounted to do his work.

The plaintiff alleged Evans knew he was riding the last railcar of the train when he allegedly brought it to a sudden stop.

Silberman alleged he was injured due to “slack action” and rapid braking. He allegedly struck his head on the rail car, was knocked unconscious and was thrown from the rail car to the ground during the shoving movement near Clinton, Ill.

Silberman alleged Union Pacific failed to provide reasonably safe conditions for work, failed to provide sufficient lighting in the yard to see the tracks and/or rail cars, failed to operate the locomotive unit in a safe manner, failed to employ a sufficient number of employees to perform the job by requiring the plaintiff to ride the point during a shoving move, failed to have proper communication equipment so that signals given by the conductor could be heard by the locomotive engineer and failed to follow its own safety rules.

Union Pacific answered the complaint on June 19, 2012, denying negligence.

The defendant argued that the plaintiff’s own conduct during and prior to the incident contributed to his alleged injuries.

It also argues that the plaintiff’s injuries were caused by preexisting conditions.

Union Pacific also alleged Silberman failed to mitigate damages by failing to return to work in his former occupation or failing to seek vocational retraining and rehabilitation. He also allegedly refused offers of vocational retraining and failed to attempt to obtain other employment for which he is physically qualified, the defendant’s affirmative defenses state.

St. Clair County Circuit Court case number 12-L-270

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St. Clair County Circuit Court Thompson Coburn LLP Union Pacific Railroad

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