Montana Jury awards $2M to injured railroad engineer

By Correy Stephenson

The Daily Record Newswire

BOSTON -- A jury in Billings, Mont. has awarded $2 million to a Burlington Northern Santa Fe Railroad engineer who was seriously injured on the job after tripping over a radio handset cord.

Chad Silliker was injured in 2001, but it took 10 years to receive a verdict.

Jon Moyers, a sole practitioner in Billings, Mont. who tried the case with another Billings solo, Russell Yerger, said one of the plaintiff's major challenges was the defense's destruction of evidence relating to Silliker's injury.

"Fortunately," he said, "the court gave us the relief that was appropriate," noting that the judge ruled in the plaintiff's favor on the liability issues before trial.

The trial focused on causation and damages, Moyers said, but the plaintiff faced continued challenges as the defense "contested everything."

According to Moyers, Burlington Northern argued that Silliker was injured due to his own negligence, that he continued to work after the accident and therefore hadn't suffered any real loss and that the nature and extent of his damages was not consistent with the original injury.

But the jury apparently disagreed, deliberating less than three hours before awarding Silliker $2 million.

Neither the public relations department of Burlington Northern nor Jeff Hedger of Hedger Friend in Billings, Mont., who represented the railroad, returned calls requesting comment on the verdict.

Silliker was 31 years old when he was injured on the job, Moyers said. Silliker was on the conductor side of the locomotive (as opposed to the engineer side) when he became entangled in the extra-long cord of a radio handset on the floor.

At 6'4'', Silliker had a long way to fall, Moyers said, going down three steps.

The plaintiff was "the picture of perfect health" prior to the accident, Moyers said, "doing everything you do in Montana: fishing, skiing, snowmobiling. ... [Then he] smashed into the interior steel bulkhead and herniated his L4 and L5-S1 discs."

Eventually Silliker had a complete rupture of the L5-S1 disc, with the interior nucleus completely extruded through the damaged outer layer. Although he underwent surgery, Silliker still suffers from chronic back pain for which there is no medical treatment, Moyers said. "It is a permanent condition that will only progress with age."

For the 10 years between Silliker's injury and the jury's verdict, he attempted to continue working as an engineer, but was unable to keep pace in activity and earnings with his peers, Moyers said.

Burlington Northern disciplined Silliker for time missed due to medical reasons and even threatened to terminate him, Moyers added.

The case was filed in 2004, but took an interesting turn when the plaintiff learned that in 2007 Burlington Northern destroyed the radio handset cord that Silliker had tripped over.

Part of the railroad's defense had been predicated on Silliker's contributory negligence, but Judge Gregory Todd ruled in January 2010 that because of the spoliation of key evidence, Silliker was entitled to a ruling on liability in his favor on all issues.

"The handset and cord are key evidence of liability in this case, and their disposal/destruction cannot be satisfactorily cured," Todd wrote, finding that an adverse inference instruction would be inadequate.

Because of the judge's ruling on the issue of liability, the five-day trial focused on causation and damages.

"Our claim was for future medical care, past wage loss and future wage loss, predicated on the idea that [Silliker] would be medically disqualified from working as a railroad engineer," Moyers said.

The plaintiff presented testimony that the railroad was unwilling to accommodate him and unwilling to accept his medical restrictions, and that he was subject to being terminated because of his inability to work the requisite number of trips or hours.

"We presented future wage loss based on some earnings, assuming he would find an alternative job -- but I'm not sure what he would do in his current condition," Moyers said.

Despite having whittled down the relevant issues, the defense "disputed everything," Moyers said.

"They claimed that [Silliker] had a preexisting condition and that his surgery was for an unrelated condition," he asserted.

Specifically, the defense contended that fuse bulges like that suffered by the plaintiff are "common and don't reflect a traumatic injury," Moyers said. The railroad also argued that the complete failure of the disc that occurred a few years after the accident was "spontaneous and wholly unrelated to the original injury."

During the plaintiff's four-day presentation, the jury heard testimony from a vocational rehabilitation specialist, a union representative, three doctors, two officers from Burlington Northern and an economist, as well as the plaintiff and his wife.

The defense presented just two witnesses, a company officer and an IME occupational physician.

The plaintiff's economist calculated that Silliker's total mitigated wage loss was between $1.1 and $1.7 million, and "we suggested to the jury that his personal losses were worth the same as his economic loss," Moyers said.

During the defense's closing argument, they suggested an award of less than $200,000, he said.

The verdict form offered jurors the chance to apportion fault to "other causes," Moyers said, but they declined to do, placing 100 percent of the blame on the railroad's shoulders.

Published: Mon, Sep 19, 2011

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