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Railserve Employee’s FELA Amputation Claim Remanded to Arkansas State Court in Case Prosecuted by Schlichter, Bogard & Denton

The United States District Court for the Western District of Arkansas has remanded to state court the legal claim of a 19-year old Railserve employee whose arm was partially amputated after being crushed between a locomotive and a railcar during switching operations. Trent Burnside v. Railserve, Inc., Case No. CV12-32-3, Circuit Court of Ashley County.

According to the lawsuit, Trent Burnside was working as a trainman for Railserve, Inc. in Crossett, Arkansas, on June 9, 2011, at a Georgia-Pacific. When a railcar and locomotive failed to automatically couple upon impact, as required by federal law, Burnside was forced to go between the cars to attempt to manually couple the cars, according to the Petition. Burnside alleges that while he was attempting to manually raise the coupling mechanism on the locomotive, the railcar began to roll toward him and collided with the locomotive, crushing his forearm between the Railserve locomotive and Georgia-Pacific railcar.

On February 10, 2012, Burnside’s attorney, Nelson G. Wolff of Schlichter, Bogard, & Denton, filed a legal action against Railserve in Arkansas State Court under the Federal Employers’ Liability Act (FELA). Railserve sought to have a federal court dismiss the case, arguing that it was not a ‘common carrier’ railroad and thus could not be held responsible under the FELA for Burnside’s amputated arm. Burnside v. Railserve, Inc., No. 12-1025, Doc. 1 (W.D. Ark.). Federal District Judge Susan O. Hickey rejected Railserve’s position, finding that Railserve’s status as a common carrier railroad was very much in dispute, and ordering that the case must proceed and be resolved by the State Court in Ashley County Arkansas where it was filed. Doc. 25-6. Among other things, Judge Hickey’s Order noted that another federal judge had found Railserve to be a common carrier railroad, Benavidez v. BNSF Ry., No. 07-105, Doc. 131 at 1718 (S.D. Tex. Apr. 29, 2008), and that Railserve was a member of various railroad groups and had corporate relationships with other railroads. Doc. 25 at 4-5. The Court noted that Railserve’s employees were exposed to the same types of injuries suffered by other railroad workers, for which the FELA was intended to provide compensation. Doc. 25 at 5. In another case, Railserve switchmen Alejandro Benavidez and Perry Ashworth each had a leg amputated after being run over by a railcar while working for Railserve. Doc. 12 at 24. Judge Hickey later denied Railserve’s request for reconsideration of the remand order. Doc. 30.

After Judge Hickey’s order remanded the case to state court, Burnside’s attorneys have been working to gather corporate documents and other evidence, and will seek a trial date. According to Burnside’s attorney, a jury trial is expected to be set in 2014. The case seeks compensation for lost wages and earning capacity, as well as the value of pain and suffering caused by the injury. Complaint, Doc. 2.

For over 40 years, the attorneys at Schlichter, Bogard & Denton have represented railroad workers who sustain on-the-job injuries. The FELA affords workers a compensation remedy for on-duty injuries caused by unsafe or negligent working conditions and defective locomotives, railcars, and other equipment. It is vastly different from the State Workers’ Compensation laws. As such, it is very important to consult only with an experienced FELA attorney. The Burnside case illustrates some of the complexities involved in handling these cases. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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