Updates in Railroad Employee Liability Law

by Jay Marshall Wolman

In addition to my usual lawyerly activities, I am also a Vice Chair of the Workers’ Compensation and Employers’ Liability Law Committee of the American Bar Association’s Tort Trial and Insurance Practice Section.  Probably the longest line on my resume.

The Committee’s Spring 2015 Newsletter is out.  I contributed an article on updates on the Federal Employers Liability Act (FELA), 45 U.S.C. sec. 51, et seq.  In short, before general workers’ compensation laws existed, the U.S. Congress established a liability and compensation framework for railroad employees.  That framework continues to govern on-the-job injuries to railroad employees.

Cases continue to develop, both in state and federal courts.  The article highlights four recent developments:

1. Expert medical opinions on differential etiology (diagnosing the cause of the injury) must meet Daubert requirements.  Shannon Brown v. Burlington Northern Santa Fe Railway Co., 765 F.3d 765 (7th Cir. 2014).
2. Injured employees cannot recover prejudgment interest for the gap between the verdict and the issuance of the judgment.  Dennis Kinworthy v. Soo Line Railroad Co., 860 N.W. 2d 355 (Minn., Mar. 4, 2015).
3. Questions of constructive knowledge of defects are Federal substantive questions, requiring that the defendant should have known at a time sufficiently before the incident to have taken preventative or ameliorative measures.  Andrew Spencer v. Norfolk Southern Railway Co., 450 S.W. 3d 507 (Tenn. 2014).
4. Railways are permitted to introduce statistical evidence  relative to when the injured worker might otherwise have retired.  John Giza v. BNSF Railway Co., 843 N.W. 2d 713 (Iowa 2014).

I highly recommend the other articles, including:

• A Committee Notice on a proposal dealing with Medicare set-asides in workers’ compensation claims;
• An article by Matthew Schiff and Kathryn Nadro on how different states (Ohio, Pennsylvania, Louisiana, Illinois, New Jersey & California) handle PTSD and other psychological injuries arising from the .workplace.

If you have an interest in these or other workers’ compensation topics, check out the committee at http://www.ambar.org/tipsworkers .