"If you see something, say something, except if you work for the railroad . . . " That was the theme of the nation’s second FRSA jury trial, resulting in a $1.5 million verdict for two workers who were disciplined after reporting a safety hazard. This was a FRSA only claim, and combined, the two workers lost one day of work due to the disciplinary finding against them.

In March 2010 PATH signalmen Jason Brig and John Buchala were working along the right of way at dusk. Without warning, an unlit work train going 40 mph entered their work site, forcing them to jump out of the way at the last second. When they complained about the unsafe equipment and procedures that allowed such a close call to happen, instead of thanks they were charged with "unsafe work practices," tried, and found guilty.

Neither sustained any FELA injury, and they only lost a single day’s pay between them, but they wanted to stand up for their FRSA-protected whistleblower rights. They filed a FRSA only complaint, and opted for a jury trial in federal court. My colleague and fellow ARLA Board member Marc Wietzke tried the case in Manhattan, and on June 28th the jury returned a verdict awarding each worker $500,000 in punitive damages plus $250,000 in compensatory damages. Even when the punitive damages are reduced to the statutory cap of $250,000, each man still will receive half a million dollars for discipline that resulted in almost no economic loss. And that does not include the fees and costs the Railroad will have to pay their attorney. And the judge has agreed to order the Railroad to expunge the records of both workers.

A pattern is emerging in these FRSA jury trials. In the first trial, Barati v. Metro North, the Railroad fired Andy Barati, reinstated him three months later, and eventually paid his lost wages and expunged his record. Nevertheless, the jury responded with $1 million in punitive damages. In this second trial, the disciplined workers lost almost no time and little economic loss, and the jury responded with $500,000 in punitive damages for each plus a significant emotional distress award.

So now the first two juries to hear FRSA cases have spoken. And the message they sent to railroads nationwide is loud and clear: the public will not tolerate any violations of the FRSA, and railroads who ignore the FRSA will be slammed with the maximum amount of punitive and emotional distress damages.

So hats off to Marc and his two clients for standing up and delivering another body blow to the railroad culture of retaliation. For the jury charge and verdict in Barati, click here and here. For the jury instructions and verdict in Brig & Buchala, click here and here.