OTLA Trial Lawyer Spring 2021

39 Trial Lawyer • Spring 2021 By Paul Bovarnick OTLA Guardian W hen you travel the highways and byways of the Pacific Northwest, you are liable to see long, winding trains traveling along beside you. Unless you’re a train fancier, railroader or, like me, a train lawyer, you likely don’t give the long strings of locomotives, box cars and tank cars much of a thought. The trains you see passing by your car or moving in a rail yard can be anywhere from a quarter mile to two miles long. They will travel between five and seventy miles per hour. They may have one remote control loco- motive or six 4000 horsepower locomo- tives, and the trains you see can weigh anywhere from 800 to 13,000 tons. These are big, heavy mechanical mon- sters of iron and steel. Humans, the muscle, bone and tissue beings that we are, working on and around trains are always at great risk. Safety is paramount. This is my world. It is unique among all of the areas of law in which I practice, which include employment, ELL, truck- ing, medical negligence and workers’ compensation. In my railroad world, I am a railroad lawyer. I advocate on behalf of the humans who work with trains. My world is governed by the Federal Employ- ers Liability Act (FELA), the tort statute that allows injured railroad workers to sue their employers to recover damages. It doesn’t take much more than a bump from a train car or a piece of train equip- ment to cause a serious injury. Trying these cases can present some special chal- lenges. I want to tell you about two such cases to share the unique aspects of trying FELA cases. The coupler and the crossing Wally Kawasaki is a long-time rail- roader. He was working as a trainman in Klamath Falls when he was injured while trying to operate a defective coupler. Kawasaki usually worked as a yardmaster. But on the day he was injured he was working as the field man on a switch crew. This meant he walked alongside the slow-moving train in the train yard, coupling and uncoupling cars and throw- ing track switches. Kawasaki strained his shoulder and elbow while he was trying to release a coupler. It took him around 14 months and more than $30,000 in medical bills to fully recover. We sued Kawasaki’s employer, the Burlington Northern Santa Fe Railroad, for Kawasaki’s injuries. We claimed the coupler violated the Safety Appliance Act (SAA) and that BNSF was negligent in using the defective coupler. In another case, Michelle Kordopatis was working as an engineer for the Union Pacific Railroad when her train collided with a hay truck at a private crossing near Dillon, Montana. Kordopatis’ injury occurred when a tractor-trailer, loaded with hay, suddenly appeared in a crossing in front of her. The truck’s approach had been concealed by a shed about 80 yards long. Kordopatis’ train was traveling at a speed of 40 miles per hour and weighed around 3,600 tons. The truck weighed around 32 tons. The collision destroyed the truck and damaged the front of Kor- dopatis’ locomotive. The truck driver suffered a fractured elbow. Kordopatis’ injuries required a three-level cervical fusion and a clavicular resection and debridement. She never worked again after the collision. We sued UP and we also sued Drag- gin’ Y, the owner of the truck that pulled in front of Kordopatis’ train, and Barrett’s Minerals, the owner of the crossing. We argued the railroad negligently caused Kordopatis’ injuries by not requiring the owner of the crossing to make it safe and by not making the locomotive cab safe Paul Bovarnick See Working on the Railroad p 40 WORKING ON THE RAILROAD