Train Law Blog : Railroad Injury Lawyer & Attorney : Cahill Goetsch & Perry Law Firm : Railway Worker Injuries & Accidents

Rail labor attorneys, union reps, employees, and even OSHA Whistleblower investigators: Your search is ended!  Everything you need to know about the Federal Rail Safety Act is now in one easy place.  In response to numerous requests, I have created a web page entitled FRSA LIBRARY.  This is a repository for information, texts, forms, decisions, pleadings, and anything else relevant to the FRSA.  Here's an outline of the topics included in the Library:

The FRSA In A Nutshell

Text of FRSA

FRSA Legal Standard Summary

FRSA Complaint form for filing with OSHA Whistleblower Office

(including link to OSHA Whistleblower Regional Offices & Investigations Manual)

Subsection (a) Injury Reports

Subsection (c) Medical Treatment

Subsection (e) Remedies

Subsection (f) Election of Remedies

FRSA Punitive Damages

FRSA Legislative History

FRSA Administrative Law Judge Proceedings

(including link to ALJ Rules of Procedure and Rules of Evidence)

Administrative Review Board appeals from ALJ Decisions

U.S. District Court Proceedings

(including U.S. District Court Complaint form)

FRSA Retainer and Attorney Fees 

(including sample Affidavit of Fees and Costs)

Other Whistleblower Protection Statutes Available to Railroad Employees

(National Transit Systems Security Act & OSHA Section 11(c))

This is a living library designed to grow organically for the use of everyone interested in the FRSA. Help this important new statute fulfill its purpose by sending along any decisions, pleadings, forms, etc to charlie@trainlaw.com so they can be added to the appropriate section. To access the Library, go to the trainlaw site  and click on the blue button on the left hand side labelled "FRSA LIBRARY"  To receive automatic updates on breaking FRSA developments, type your email address in the subscription box at the left hand margin of this blog page. 

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Teddy Roosevelt would be proud. 102 years after he signed the original rail safety statute into law, the Federal Employers Liability Act is still doing its job: exposing the unsafe practices of railroads and holding railroads accountable for the employee injuries that result.

The sad truth is, rail managers habitually ignore their own responsibility for the unsafe conditions that injure workers and instead focus all blame on the victim. This has the noxious effect of leaving the root cause of injuries in place, thereby prolonging the risk and guaranteeing more employee injuries. But in the right hands, the FELA is a powerful weapon that can pierce the armor of rail management denial and expose the truth about unsafe work practices. The remarkable story of electrician Jim Deacon is a case in point (see below for news links)

One of the most horrifying dangers on any railroad is a high voltage electrical arc explosion. During an arc explosion metal melts into a superheated plasma that engulfs workers in a fireball hotter than surface of sun, and is usually caused by defective cable connections. To prevent arc explosions, railroads must routinely inspect electrical equipment to confirm all connections are secure.  And to completely eliminate the risk of arc explosions, railroads must deenergize the power before employees begin working on the equipment.

On October 30, 2006, electrical tester Jim Deacon was assigned to work inside a third rail sectionalizing switch box that was an arc explosion waiting to happen. Because Metro North had not inspected that box, Metro North did not know there was a positive 700 volt cable under a metal motor housing that was completely disconnected and touching the metal housing, thus electrifying it. When Jim took off his protective gloves in order to thread a narrow #6 negative wire (following the practice in the field), the negative wire happened to touch the improperly electrified metal motor housing, sparking an arc explosion fireball. Jim spent a week in the Burn Unit with second and third degree burns over 15% of his body. Over the next year he endured three surgeries with multiple skin grafts.

And what of Jim's Metro North managers? Instead of taking responsibility for causing the explosion by their unsafe practice of not inspecting and not deenergizing, Metro North blamed Jim for his injury and disciplined him for not wearing gloves at the moment of the explosion. And instead of preserving the crucial evidence, the managers destroyed the cable end and connector barrel involved in the explosion, and denied they had shot any videotape during their investigation. Fortunately an anonymous source mailed Jim a copy of the video shot by the top manager showing him personally ordering workers to reach inside the live box without protective gloves on, the very same act for which the manager disciplined Jim.

Jim returned to work in the Metro North Power Department for 17 months, but the ongoing unfair blame and unsafe working conditions took a severe toll on his psychological condition, to the point he was medically disqualified from working.

But the FELA finally forced the Railroad to admit the truth. After 3.5 years of blaming Jim, on the eve of trial Metro North admitted the explosion was caused by its negligence and that Jim did not contribute to his injuries in any way. This crucial vindication--plus the $1.1 million Metro North will pay Jim--would not have happened without the FELA.

So Teddy Roosevelt's rail safety law is indeed working as intended. For a two minute video regarding the arc explosion, go to the New Haven Register news site, where a copy of rail safety expert James Sottile's excellent Report detailing the failures of Metro North management is available as well.

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Joe Coleman from Seattle asks whether union reps can be present when a worker gives a statement to a railroad claims agent. The real question is, why would a railroad worker NOT have his union rep present?

No way can there be ever be a level playing field between a claim agent and an injured worker. Think about it. A claim agent is a manager whose only job is to save the railroad money. He is a professional trained to ask leading questions that steer the worker into incriminating answers that will insulate the railroad from liability. The injured worker, on the other hand, finds himself suddenly thrust into a bewildering process with no idea how to protect his legal interests.

Always remember, you don't have to give a statement to a claim agent. If a claim agent asks you to come in and give a statement, ask the claim agent if your union rep can be there with you. If the answer is no, that is all the proof of unfairness you need, and just walk away.

Before giving any statement, it is always best to at least consult with an experienced FELA attorney who can advise you how to protect your long term interests. But at the very least, talk to an experienced union rep who can be there to keep the claim agent honest.

So don't be fooled by the "friendly" claim agent who just "wants to help" and, by the way, just needs to take a "short statement on the record" before he will process your medical bills and so on. He will smile and joke and take your statement, and then months or years later when you go to settle your claim, he will pull out your statement and say, "Gee, what do you want from us? You yourself stated it was just an accident that could not have been avoided. You're lucky we even paid your medical bills."

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Our hearts go out to the family and friends of Metro-North Railroad worker Kevin McGrath, whose life came to an end on the tracks just west of Rye Station while he was on duty January 9th. Just as every human life is unique, each fatal railroad accident like this is uniquely tragic. 

As Kenny's family, friends, and co-workers celebrate his life and mourn his loss, they cannot help but ask themselves, "Why? What went wrong? How could this possibly happen to an experienced 25 year Railroad veteran?" It is only human to try to make sense out of such a tragedy by asking such questions. But if experience is any guide, the full truth as to what really happened will not emerge until long after the period of initial shock and grieving. 

From my point of view as a railroad accident FELA lawyer, at times like this I am always struck by the disconnect between the superficial news reports in the media and the complex depths of the true story. One article from the Connecticut Post is typical.  Click here for article. It gives the bare known facts, and then refers to two earlier Metro North railroad accident worker fatalities, both of which were FELA cases handled by my firm. The Robert Ard, Jr. case is instructive. After Bob was killed by a Metro North train in Stamford Yard, Metro North Railroad management issued a Report placing all the blame on him, a conclusion other law firms endorsed when declining to help his wife and two daughters. Of course Bob could not speak for himself, but by aggressively using the tools of federal court discovery we were able to uncover the truth: the underlying cause of Bob's death was in fact Metro North's failure to follow its own failsafe procedures for safe switching operations. After a two week federal court trial, the jury rejected Metro North's "blame the victim" defense and returned a gross verdict of $4.3 million for Bob's wife and daughters.  For information on the Ard verdict, click here and here.  

As the Ard case illustrates, the full truth will not emerge even when the Railroad conducts its own investigation and issues its Report. Indeed, it is likely Metro North's Report actually will avoid or obscure the truth as to what really happened and why. It takes time and hard work, but the truth as to what really happened can and must be discovered, if only to provide closure for Kevin McGrath's loved ones and to ensure that such a tragedy never happens again.

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