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Illinois Appeal Court Affirms $1.7 Million Jury Verdict for BNSF Track Laborer Represented by Schlichter Bogard & Denton

On May 28, 2014, an Illinois appellate court upheld a $1,779,000 jury verdict obtained by Schlichter Bogard & Denton in favor of George Mitchell, who suffered disabling cumulative trauma neck injuries after working over 14 years as a track laborer for BNSF. On appeal, BNSF argued that Mitchell’s claim was time-barred under the FELA’s three-year statute of limitations. The railroad claimed that Mitchell was put on notice of his injury from the very beginning of his career when he experienced temporary and intermittent aches and pains in his neck when using railroad track tools and equipment. The appellate court for the Third District of Illinois rejected the railroad’s argument, noting out that Mitchell was not diagnosed with a herniated disc until shortly before suit was filed in December of 2009. The Court held that there was a complete absence of evidence from which Mitchell reasonably should have known before December 2006 that he had a herniated disk in his neck. The appellate court concluded that the injury that was unknown and undiscoverable until 2008 (or, at least until late 2007 when the nerve symptoms first appeared).

The court’s decision also rejected BNSF’s argument that Mitchell was contributorily negligent for not seeking earlier medical attention for his temporary and intermittent aches and pains, which the railroad claimed would have mitigated his neck injury. The court explained that BNSF did not point to any testimony or evidence at trial making a causal connection between Mitchell’s reports of transient pain and his subsequent herniated disc and nerve damage symptoms.

Although BNSF may seek discretionary appeal from the Illinois Supreme Court, by law, post-judgment interest continues to accrue at the rate of 9%. Accordingly, the judgment has grown to an amount exceeding $2 million.

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