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U.S. Supreme Court Turns Down Norfolk Southern's Petition

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The nation’s top court will not take up a record-breaking railroad injury case from Cook County. John M. Power and George T. Brugess, partners at Cogan and Power P.C., represented the plaintiff, Michael Parsons who was awarded $22,474,102 million after a work injury at Chicago's 51st St. rail yard.

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U.S. Supreme Court Turns Down Norfolk Southern's Petition

  1. 1. Volume 164, No. 192 Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media. CHICAGOLAWBULLETIN.COM TUESDAY, OCTOBER 2, 2018 ® It’s end of the line for $21.4M Cook County railroad-worker case BY ANDREW MALONEY Law Bulletin staff writer The nation’s top court will not take up a record-breaking railroad injury case from Cook County. The U.S. Supreme Court on Monday declined to hear a rail- road’s argument that the $21.4 mil- lion verdict for a conductor whose heel was sheared off between two train cars was premised on a mis- leading jury instruction. According to the Jury Verdict Reporter, a product of Law Bulletin Media, the award is the largest ever given for a heel injury-related set- tlement or verdict in Cook County. A petition for certiorari filed by the railroad was one of 18 from Illinois and one of hundreds in general that the court turned away Monday to start its new term. Lawyers for Norfolk Southern Railway Co. argued the trial judge potentially confused jurors by telling them Michael Parsons, the plaintiff, “shall not be held to have assumed the risks of his employ- ment.” That instruction stems from the assumption-of-risk doctrine, which states employees are presumed to know that certain jobs come with certain risks. It used to be part of the Federal Employers Liability Act — a 110-year-old statute that pro- vides a cause of action for injured railroad employees against their employers rather than common law. FELA claims require a railroad worker to prove the injury was at least partly caused by negligence on part of the railroad. But railroads would cite the doc- trine to argue against recovery of any kind by their workers. The law since incorporated a contributory-negligence setup, al- lowing juries to attribute some fault to the plaintiff and reducing the damages proportionately. In addition to the assumption-of- risk instruction, then Cook County circuit judge Donald J. Suriano told jurors several times they should determine how much Parsons was at fault for his own injury and reduce the award accordingly. In November 2015, they deemed the railroad 100 percent at fault for causing the injury by moving two tracks at the 51st Street rail yard closer together, giving conductors less clearance to ride on the side of cars while passing another train. The jury awarded Parsons $22,474,102. The award for lost earnings was lowered by $1 million in April 2016 after Norfolk South- ern argued in post-trial proceed- ings it was excessive. A 1st District Appellate Court declined to reduce or overturn the verdict in August 2017. The Illinois Supreme Court rejected an appeal in January. In a 70-page plea to the nation’s high court filed after the denial from Springfield, Norfolk Southern argued it never asked for the as- sumption-of-risk instruction and that it’s common for plaintiff’s lawyers to seek it out in order to mislead jurors. They wrote that “the jury is likely to equate a no assumption-of- the-risk instruction with a no-con- tributory-negligence instruction,” making them believe a plaintiff can’t be held liable at all in the case. They also pointed to state supreme courts in Utah, Nebraska and Vir- ginia, which held that giving such guidance is reversible error. But Parsons’ lawyers countered that the vast majority of opinions, including all the ones from federal appeals courts, have found that even if the instruction is given erroneously, it’s not so problematic that the decision should be re- versed. They also cited the 1st District’s decision in the case, which noting there was “nothing to suggest that [the instruction] caused the jury to believe that it could not consider contributory negligence.” They wrote that, to the extent there is a split among lower courts, it’s “no split worthy of this [c]ourt’s review.” On Monday at least, the court agreed. Carter G. Phillips of Sidley Austin LLP in Washington, D.C., is counsel of record for the railroad company. In an e-mail Monday, he said he was disappointed the court didn’t take the appeal. He added that the assumption- of-risk instruction “had no role in this case except to mislead the jury.” He said despite the fact the federal liability law is one based in comparative negligence, it made the railroad seem like it was an insurer. “The denial of review will merely embolden others to follow this course and eventually the railroads will convince the [c]ourt that its intervention is warranted to stop a practice that everyone recognizes is improper,” Phillips said. John M. Power and George T. Brugess, partners at Cogan and Power P.C., represented Parsons. They said in a joint interview Mon- day that the judge gave the in- struction because the defense es- sentially tried to argue Parsons “assumed the risk” of the job. “They opened the door, ran right through it, then complained to us that we were availing ourselves of the jury instruction that countered that when they raised it,” Brugess said. Power said the defense had long odds of getting any case to the high court, let alone one that turned more on facts than law. “They were trying to create a square peg and put it in a round hole,” Power said. “They tried to say this is a conceptual problem versus a factual problem.” They both said the railroad’s own training video instructed conduc- tors to ride the train cars and that their client “felt like he was finally vindicated” Monday after the high court turned down the appeal. Par- sons still works for the railroad, his attorneys said. “All he wanted to do was to go back to work, and hopefully this proves that he was a hard worker and he just wants to get back to some sense of normalcy, despite the fact that for three years after the trial, they kept blaming this on him,” Power said. The case is Norfolk Southern Rail- way Company v. Michael Parsons, No. 17-1376. amaloney@lawbulletinmedia.com U.S. Supreme Court turns down Norfolk Southern’s petition on first day of term George T. Brugess John M. Power “They opened the door, ran right through it, then complained to us that we were availing ourselves of the jury instruction that countered that when they raised it.” Serving Chicago’s legal community for 163 years

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