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Long-Awaited Justice for Injured Railroad Conductor

Following a one week trial, a St. Louis Federal court jury ordered BNSF Railway to pay a former railroad conductor $1.67 Million for on duty spine injuries. Conductor Kevin Cowden, of Marshfield, Missouri, sustained neck and low back injuries in January of 2008 when his freight train rain over defective track and bottomed out near Golden City in southwest Missouri. The force from the impact was like a rollercoaster, throwing him above his seat and striking his spine forcefully when the locomotive shock absorbers recoiled. He was diagnosed with herniated discs in his cervical and lumbar spine. Cowden continued to work as a conductor for a year, despite significant pain, before undergoing surgery to remove a lumbar disc and fusing a vertebra to his sacrum. After a period of healing, a functional capacity test determined that he should be limited to light duty work and not return as a conductor.

A post-incident inspection of the track showed a 2½ inch dip in one of the rails on the track. Railroad track maintenance records revealed previous problems with the track, due to washouts from flooding, which deteriorated the track surface and wooden crossties. Instead of repairing the track and replacing the ties, the railroad continued operating heavy coal trains over the track. Federal Railroad Administration (FRA) regulations allow railroad traffic to continue over defective track, but only if train speed is reduced, thereby minimizing the risk of derailments and injury to train crews. Cowden’s legal team retained a track maintenance expert, Alan Blackwell, who discovered that the track measurements failed to account for bigger dips in the track, under load of a 200-ton locomotive. After accounting for that weight, the track defect was much larger and should have been repaired, or train speeds reduced dramatically.

BSNF, a Ft. Worth, Texas holding of Warren Buffet’s Berkshire Hathaway, denied any responsibility for causing the incident, claiming the track complied with the minimum standards set by the FRA. It also denied that any injury was sustained from incident but, instead, Cowden suffered from degenerative disc disease and surgery was not needed. BNSF claimed that, even if there was an injury, it occurred off the job, the next day, when Cowden rolled over in bed. BNSF also denied that Cowden was disabled from returning to work.

The almost 6 year delay between the injury and trial resulted from BNSF’s ill-fated attempt to dismiss the case before trial. However, the United States Eighth Circuit Court of Appeals reversed the dismissal in 2012 and ordered the case to be reconsidered for trial. After the lawsuit was amended, the railroad again sought dismissal, which was denied.

According to Cowden’s attorney, Nelson G. Wolff of the firm Schlichter, Bogard & Denton:

“It is often said that ‘justice delayed is justice denied’. However, in this case, we persevered despite by the significant delays and hardship wrought by BNSF on its loyal employee. Kevin was an outstanding conductor for over 10 years and a decorated Army Veteran of Desert Storm. He was injured doing the railroad’s work on its equipment and was, himself, without any fault. Yet, when he was unable to safely return to work as a conductor due to the spine injuries, the railroad turned its back on him and even terminated his family’s health insurance. Today, a jury restored a small measure of the dignity stripped by BNSF and ordered full compensation.”

The case was filed under the Federal Employers’ Liability Act (FELA), which is the exclusive remedy for railroad workers who suffer on-duty injuries. They are not eligible for workers’ compensation benefits. Senior United States District Judge E. Richard Webber presided over the trial. Beth Wilkins Flieger, also of Schlichter Bogard Denton, served as Kevin’s co-counsel. BNSF was represented by Tom Jones and Harlan Harla of the Thompson Coburn law firm.

For further information, please contact Nelson G. Wolff at 314-621-6115.

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