One year ago I tried the first FRSA federal jury trial in the nation for my client Andy Barati. The U.S.District Judge who oversaw that trial now has upheld the jury’s verdict in full. In a 16 page landmark Decision, Judge Janet Bond Arterton rejected the Railroad’s arguments that the jury’s award of maximum punitive damages was excessive and that emotional distress damages should not be available in Federal Rail Safety Act cases.
The FRSA has a statutory cap of $250,000 for punitive damages. But as is the proper practice, the jury was not informed of that limit and was allowed to award the amount of punitive damages it felt was just in light of “the degree of reprehensibility of the defendant’s misconduct.” The Barati jury awarded $1 million in punitive damages. As Judge Arterton explained, that award was supported by the evidence:
Here, by their award of four times the statutory maximum, the jury registered their measure of reprehensibility to underscore their finding that the Railroad’s conduct was in reckless disregard of Mr. Barati’s safety and FRSA rights. Their conclusion was supported by the evidence that the Railroad singled Barati out for discipline for a safety violation. The jury also had evidence that Metro North’s termination of Barati was contrary to its written policies and FRA regulations, was a self-serving effort to discourage employee injury reporting in order to keep its injury and lost workday statistics low, violated Metro North’s own obligation to accurately report employees’ on-the-job injuries and resulting lost work days, and contravened Metro North’s “safety statement” that “we are committed to the safety of our employees and our customers,” and “we are determined to provide a work environment where all employees work safety.”
Accordingly, the Court found the maximum punitive damages amount of $250,000 “does not violate due process” because it was fully justified by the evidence.
After noting “the issue of whether compensatory damages for emotional distress are recoverable under the FRSA appears to be one of first impression,” the District Court went on to hold “the Court concludes that damages for emotional distress are available under the FRSA.” Judge Arterton explained that the term “compensatory damages” includes both “pecuniary” and “non-pecuniary” damages, and that “non-pecuniary compensatory damages includes compensation for bodily harm and emotional distress, and are awarded without proof of pecuniary loss.” The plain language of the FRSA text controls, and “in the absence of any indication from the statutory language of an intention to limit ‘compensatory damages’ to less than its generally accepted definition, the Court concludes that the FRSA permits recovery for emotional distress.”
The plaintiff’s expert was George Gavalla, a former Head of the FRA’s Office of Safety. The Court flatly rejected the Railroad’s argument that his expert testimony was “unduly prejudicial.” Gavalla testified about the FRA imposed standards of care governing every railroad’s treatment of employees who report injuries. Gavalla also testified about the “categories of conduct” the FRA identifies as violating the regulatory prohibition against the “harassment or intimidation of persons calculated to discourage or prevent the reporting of injuries”:
The categories he identified included: “singling out employees who are injured for disciplinary action,” disciplining employees who are injured on the job because of safety violations while other employees who commit the same safety violations and are not injured are not disciplined, and having management or railroad officials “threaten or recommend to employees that they’re better off not reporting an injury or an accident.” Mr. Gavalla spoke of these “categories of conduct” in a general manner, without providing any opinion as to whether Metro North had or had not engaged in any such conduct. That testimony came from Metro North’s own employees which focused specifically on Metro North’s safety regulations, policies, and “culture.” . . . Given the testimony about Metro North’s own safety rules, reporting policies, and disciplinary practices, juxtaposed with the general testimony provided by Mr. Gavalla about the FRA’s role in investigating railroad workplace safety and the importance of accurately reporting work-related injuries, it is clear that Mr. Gavalla’s testimony was proper and not unfairly prejudicial to Metro North.
So, hats off to Andy Barati for standing up and asserting the FRSA right of all railroad workers to freely report injuries without fear of retaliation. No doubt this will be the first of many jury verdicts responding to the abusive hypocrisy of railroads with the maximum amount of punitive damages. For the full text of Barati v. Metro North Railroad.