Newsworthy Events

F&W Secures Fifth Consecutive Defense Verdict

On February 2, 2012, in the Philadelphia County Court of Common Pleas, Flynn & Wirkus attorney Heather Gamache secured the firm’s fifth consecutive defense verdict in favor of a railroad client.

The Plaintiff, a veteran railroad employee with twenty-four years of experience as a trackman, fractured the tip of his right pinky finger while using a claw bar to lift up the end of a railroad tie. The Plaintiff claimed that, due to the deteriorated condition of the railroad tie, as he applied pressure to the claw bar, the bar slipped through the tie and caused him to slip and to pinch his hand between an adjacent rail and the bar. The Plaintiff further argued that the railroad defendant failed to provide a reasonably safe workplace in that it failed to properly maintain the railroad tie and failed to have adequate manpower at the work site.

During trial, Ms. Gamache elicited damaging admissions from the Plaintiff including that he violated several company safety rules; that, at the time of the accident, he was admittedly unaware of his surroundings; and that, on several occasions under oath, he admitted he caused the accident and his injuries. Ms. Gamache also secured compelling testimony from the Plaintiff’s direct supervisor that the condition of the railroad tie in question was representative of a normal tie on the railroad, and that, in any event, given the Plaintiff’s lengthy railroad service he was well-qualified to work with ties in all conditions. The Plaintiff’s supervisor further affirmed that the Plaintiff failed to perform his job safely, and that the Plaintiff admitted he caused the accident.

After merely one and a half hours of deliberation, the jury returned a verdict in favor of the railroad defendant.

Soto v. CSX Transp. Inc., NO. 001494 (Phila. Ctny. Ct. Comm. Pleas, filed Oct. 14, 2009); Heather Gamache, Flynn & Wirkus, for Defendant, CSX Transportation, Inc.

F&W Gets Complaint Dismissed Under 12(b)(6)

Plaintiff, a 48 year-old man at the time of the incident, was trespassing through a West Springfield rail yard when his foot was allegedly crushed by a switching mechanism, and while attempting to escape, fell under a train sustaining a severed leg and degloving injuries. Plaintiff filed a complaint against the railroad that owns the rail yard alleging negligence and recklessness. Plaintiff’s mother also asserted loss of consortium and a claim sounding in emotional distress.

The railroad filed a motion to dismiss the complaint under Mass. R. Civ. P. 12(b)(6) arguing that Plaintiffs had failed to state a claim upon which relief can be granted. At the motion hearing, F&W attorney Redi Kasollja successfully argued before a federal judge that, as a trespasser, Plaintiff was only owed a duty to refrain from wanton and willful conduct. Kasollja further argued that Plaintiff’s allegations did not make out a claim for wanton and willful conduct because mere knowledge of trespassers does not rise to the level of “quasi criminal” behavior required by the tort and because the railroad was conducting its rail activities in the ordinary course. Even if the lesser standard of negligence applied, Kasollja pointed out that the complaint was insufficient as a matter of law because Plaintiff had not alleged how the rail yard was dangerous, what alleged danger the railroad’s activities presented to Plaintiff, and whether the railroad knew about such alleged dangers. Moreover, the complaint had not alleged whether the railroad could have even prevented Plaintiff’s injuries. In regards to the mother’s loss of consortium claim, it was successfully argued that Plaintiff did not allege “dependence” as required by Mass. Gen. Laws ch. 231, § 85X. Lastly, as to the purported emotional distress claim, it was argued that Plaintiff’s mother did not witness the incident.

Agreeing with the railroad, the court dismissed the complaint with prejudice and entered judgment for the railroad. In its decision, the judge held that the complaint did not allege sufficient facts to make out a claim for which relief can be granted because Plaintiff failed to establish: (1) who, if anyone, knew of his presence in the yard; (2) whether the railroad had time to act after learning of his presence in the yard; and (3) whether the railroad was engaging in activities other than normal rail operations. The court further noted that the railroad had no duty to warn Plaintiff of the dangers of trespassing in the yard, nor did it have a duty to prevent Plaintiff from trespassing. The court also dismissed the mother’s loss of consortium and emotional distress claims. Finally, the court rejected Plaintiff’s request to amend the complaint as futile. The matter is currently on appeal with the First Circuit Court of Appeals. Link to decision and order.

Facing $3.8 Million Demand, F&W Team Posts Another Defense Verdict

On October 14, 2011, an Erie County (NY) jury spent about an hour deliberating before returning a defense verdict for an F&W client, a short-line railroad, in a grade crossing case which took more than two weeks to try. The case was brought by a union electrician who on December 7, 2006, upon leaving his worksite at the Steel Winds windmill project, collided with a locomotive at a private crossing inside the former Bethlehem Steel plant in Hamburg, NY. The plaintiff alleged that he suffered a number of debilitating injuries including five herniated cervical disks, an avulsion fracture of his cervical spine, a torn rotator cuff, and a ruptured biceps tendon. He claimed that the railroad had parked two box cars on an adjacent track, thereby obstructing his view of the moving train as he approached the crossing, and that the railroad’s engineer and conductor negligently operated the locomotive.

F&W’s defense team, led by Mike Flynn and John Young, successfully argued that the railroad had complied with every applicable operating rule and that the accident was caused by the plaintiff, who had ignored a stop sign that governed his approach to the crossing. The defense also argued that the plaintiff’s injuries were not caused by the accident, and instead were due to pre-existing degenerative conditions and a prior traumatic incident in which the plaintiff had injured his biceps.

Prior to trial, the plaintiff had demanded $3.8 million.

As noted, the jury spent very little time deliberating before reaching a defense verdict. The jury did not reach the issue of causation, instead answering “no” to the first of several special verdict questions, which simply asked if the railroad was negligent. Link to full article from the NY Daily Record.

Michael Flynn and John Young secure Flynn & Wirkus's fourth consecutive favorable FELA defense verdict

On June 22, 2011 in Worcester Superior Court, Mike Flynn and John Young secured the fourth consecutive FELA favorable outcome for F&W's clients. Plaintiff, an employee of a regional railroad with a history of significant pre-existing degenerative conditions in his shoulder and knee, alleged two separate workplace injuries resulting from two different incidences.

Plaintiff alleged he injured his shoulder as a result of a fall on a Tamper Plaintiff was using as part of his normal job responsibilities. Plaintiff alleged the Tamper was unsafe and defective due to Plaintiff's inability to adjust the handholds and oil on the Tamper's surface. Plaintiff also alleged that he tore his medial meniscus as well as his rotator cuff as a result of a fall while walking along an embankment in the rail yard.

Mr. Flynn and Mr. Young were able to elicit testimony during trial, from Plaintiff and other current and former railroad employees, that Plaintiff was merely engaging in the routine functions of his job when both incidences occurred. They were able to elicit further testimony that the railroad provided a reasonably safe work job site, resulting in a jury verdict in favor of the defense and a finding that the Defendant railroad was not negligent. link to full article on MLW Link to blurb from the FELA Reporter.

Michael Flynn featured presenter at the ASLRRA Annual Convention in San Antonio, Texas

Michael Flynn was recently featured as a speaker and presenter at the American Short Line & Regional Railroad Association Annual Convention in San Antonio, Texas. Mr. Flynn's presentation focused on defending trespasser fatality cases, and featured case studies from four jurisdictions. Mr. Flynn discussed common issues in defending trespasser cases, such as the duty owed by railroads to a trespasser, the Attractive Nuisance Doctrine and state-specific standards associated with its application, and the Persistent Trespasser Doctrine.

The American Short Line & Regional Railroad Association (ASLRRA) is a non-profit trade association that represents the interests of its more than 475 short line and regional railroad members in legislative and regulatory matters.

1/20/11 Defense Verdict in U.S. District Court.

In January 2011, F&W attorneys Michael B. Flynn and Heather M. Gamache received a defense verdict in consolidated actions in favor of two railroad clients. In the first action, the plaintiff alleged that he developed osteoarthritis of the neck, knees, left thumb and left elbow as a result of repetitive workplace activities during the course of his 32-year career with the railroad. The plaintiff also claimed that his workplace activities aggravated the osteoarthritis of his knees, left thumb and left elbow. In the consolidated action, the plaintiff alleged that he sustained a traumatic injury to his left forearm as result of unsafe work conditions including inadequate manpower and equipment. The consolidated FELA cases were tried to a jury in Springfield, Massachusetts after the defense rejected Plaintiff’s demand to settle the case. After nearly three weeks of trial, the plaintiff rested his case and the defense moved for directed verdict. The court granted directed verdict in part on the grounds that the plaintiff’s claims were barred by the applicable statute of limitations and because the plaintiff failed to present sufficient evidence for the issues to reach the jury. Thereafter, the defense presented its entire case in one day and through only one witness before it rested. After merely 2 ½ hours of deliberation, the jury returned a verdict in favor of the defense on the plaintiff’s remaining claims and found that the railroads were not negligent and did not cause any injury to the plaintiff. link to full article

9/1/10 Mike Flynn and Lori Wirkus Negotiate Favorable Settlement in Wrongful Death Action

In September 2010, F&W attorneys Michael B. Flynn and Lori A. Wirkus negotiated a favorable defense settlement for an imminent trial case involving the Wrongful Death Act. Plaintiff's decedent, a former B&B Mechanic for a local railroad, was killed in an accident during a snowstorm. The decedent was allegedly acting as a watchman while the other members of his crew removed snow from the platforms and crosswalks at a commuter rail station. F&W's position was that the decedent and his crew were trespassing as the crew failed to obtain foul time on the night in question and did not have permission to be on the tracks. At the time he was struck, the decedent was either snowblowing or attempting to move a disabled snowblower. He was facing away from the oncoming train. The case was aggressively litigated over the course of several years. A month before trial Plaintiff's counsel made a demand to F&W's client in the amount of $5,250,000. During the course of preparing the case for trial, negotiations were continued aggressively on both sides and the matter finally settled for six figures a few days before trial was scheduled to begin.

7/29/10 F&W Legal Team Obtains Summary Judgment in Multi-Million Dollar Wrongful Death Case

Members of the F&W legal team recently obtained summary judgment on behalf of a railroad in a wrongful death case. The decedent was struck while walking at night in the middle of the railroad's mainline track, facing away from oncoming train traffic. The decedent's family and estate filed suit in Massachusetts Superior Court against the railroad and 5 other defendants, where lengthy discovery and motion practice ensued. Prior to summary judgment, the decedent's estate made a multi-million dollar global settlement demand, which was rejected by all defendants involved. In granting summary judgment on behalf of F&W’s client, the court held the decedent was a trespasser and the tracks were an open and obvious danger, on which the railroad had no duty to warn. The Court also determined that the railroad did not, as a matter of law, act wantonly, willfully or recklessly. link to full article

6/11/10 Favorable Defense Settlement Following Seven-Figure Demand

F&W attorneys Michael B. Flynn and Seth C. Turner recently obtained a favorable defense settlement after a four-day trial. The plaintiff, a former railroad conductor, allegedly injured his ankle while climbing over a fence to access a train separation. His initial ligament injury developed into a sympathetic nervous system disorder known as Complex Regional Pain Syndrome (formerly Reflex Sympathetic Dystrophy) that affected his left lower extremity, disabling him from all gainful employment. The case proceeded to trial after the defense rejected the plaintiff’s demand of $3.6 million. After four days of trial, including the cross examination of the plaintiff’s experts and medical providers, the defense obtained a settlement well-below the plaintiff’s seven-figure expectations. The case was tried in Federal Court in Illinois.

5/26/10 Defense Verdict in U.S. District Court in Massachusetts

In May 2010, F&W attorneys Michael B. Flynn and Seth C. Turner received a defense verdict in favor of a railroad client. The plaintiff alleged that he was injured while operating a defective railroad switch and sustained permanent disabling injuries to his neck with symptoms radiating into his arms and hands. The FELA case was tried to a jury in Federal Court in Boston, MA, after the defense rejected the plaintiff’s demand of $500,000 to settle the case. After five days of trial and three hours of deliberations, the jury returned a verdict in favor of the defense and found that the railroad was not negligent and did not cause any injury to the plaintiff.

Flynn & Wirkus win defense verdict in Boston FELA case.

Flynn and Wirkus takes great pleasure in announcing the opening of new offices in Philadelphia.

Our new address is 2 Penn Center Plaza, Suite 312, Philadelphia, PA 19102, tel: (215)568-1440, fax: (877) 299-3962. Our new space is conveniently located in the heart of the City of Brotherly Love – our conference room overlooks City Hall Plaza, and we are connected via concourse to Philadelphia’s rapid transit system. The new office will be instrumental to serving the needs of our existing clients in greater Philadelphia, and we also hope that the space provides the flexibility necessary to attract additional clients in the area.

A recent issue of the FELA Reporter included an article on Flynn & Wirkus

Premises Liability — Trucker Falls in Icy CSX Parking Lot — Massachusetts Jury Returns Defense Verdict. The plaintiff arrived at CSX’s Framingham yard at about 7:30 a.m. on January 3, 2003 and began to load his vehicle transport rig with cars. At about 9:00 a.m., he was inspecting a vehicle prior to loading it when he slipped on ice and/or snow in the parking lot, and twisted his back. According to plaintiff, the incident resulted in lumbar strain and a herniated disc at L4-L5 which required laminectomy and discectomy. Link to full article.

Flynn & Wirkus Celebrate New Partnership

On June 26, 2009, Flynn & Wirkus held a cocktail reception in honor of the new partnership between Mike Flynn and Lori Wirkus. The reception took place at the Granite Links Golf Club in Quincy. The firm’s attorneys and staff, a number of clients and client representatives, family members, friends and several colleagues were in attendance. Attorneys Flynn and Wirkus both addressed the crowd of well-wishers. Attorney Flynn stated that he was “thrilled to welcome Lori (Wirkus) as a partner, having been consistently inspired and motivated by her over the course of the many years that I have known her.” In her comments, Attorney Wirkus described some of the humorous moments that formed the beginnings of her association with the firm, and remarked that “she was looking forward to experiencing the unlimited potential of our firm’s future.” Link to full article.