OTLA Trial Lawyer Spring 2021

40 Trial Lawyer • Spring 2021 linking railroad cars together, one after another, to complete one single unit — the train. Couplers are made of steel or cast iron and have four moving parts. Each coupler is a mirror image of the coupler into which it fits. When the coupler is locked in with another coupler ( see photo, p. 41), a pin in each coupler holds each coupler’s knuckle in place so it cannot release the opposing knuckle. To uncouple two cars, Kawasaki had to pull on a pin lifter which was supposed to pull up a pin on one coupler to allow the knuckle to open as the cars pulled apart. Our client pulled the pin on a car that was one of fifty cars still attached to the engines. Unfortunately, the pin was defective and would not remain in the unlocked position. To allow the cars to separate, Kawasaki had to hold the pin- lifter while he trotted alongside one car as it pulled away. As he did so, the train jerked, causing a strain to his elbow and a strain to his shoulder. We had to teach the jury about couplers, or we would not get our SAA strict liability jury instruc- tion, nor a verdict on any of our counts. Kordopatis v. UP, Barrett’s Minerals and Draggin’ Y Ranch presented some differ- ent challenges. In that case, the locomo- tive’s track image recorder clearly showed the truck suddenly emerging from be- hind the shed, failing to stop and being struck by the train. The negligence of the truck driver was inarguable, and the hazard posed by the shed was indisput- able. Moreover, we had plenty of for its occupants in a collision. In Kawasaki’s case, BNSF denied the coupler was defective, denied the defect caused his injury and blamed the injuries on Kawasaki’s negligence. In Kordopatis’ case, Union Pacific denied the collision was capable of caus- ing Kordopatis’ injuries, denied the locomotive cab was unsafe or that it had any duty to make the crossing or the cab safe, and blamed the crash on the owner of the crossing and the owner of the truck. The laws of rail To prove these two cases, I had to understand both FELA and railroading. The law is fairly straightforward. Under FELA, an interstate railroad has a con- tinuous, nondelegable duty to use reasonable care to furnish its employees with safe tools and equipment, and with a safe place to work. To recover under the statute, the injured employee must prove the railroad’s negligence was even the slightest cause of the injury. Moreover, a railroad’s violation of related safety stat- utes, like the Safety Appliance Act or the Locomotive Inspection Act, can confer strict liability on the railroad, without regard to negligence. Learning the law is the easy part. Figuring out the language of railroading, how the equipment is supposed to work, how it is operated and what can go wrong take much longer to learn and can often be mystifying. Kawasaki’s trial lasted four days. The Kordopatis trial lasted two weeks. Both cases produced positive verdicts for my clients. In both cases, the railroad defen- dants failed to understand their risk, in part because, surprisingly, each railroad and its lawyers did not fully understand the facts that concerned railroading. In Kawasaki’s case, BNSF did not appreciate its strict liability risk. In Kordopatis’ case, UP was blinded by the risk to the other defendants and its failure to comprehend the mechanics of the collision. In Kawa s ak i ’s case, we pled three different counts of strict liability and one of negligence. Our first task was to introduce the court to an area of law with which it was entirely unfamiliar. First of all, FELA explicitly prevents removal to federal court. This makes it one of the very few federal remedies that can be litigated in Oregon state courts. Second, railroad cases are different from almost any other kind of case seen in any court. This tends to be true in all of the other jurisdictions in which I practice. In fact, right now there are no state judges in Multnomah County who have ever pre- sided over a FELA trial. So, unless I know that my judge has handled at least one FELA trial, I assume that railroading, railroad law and railroad lingo are unfa- miliar to my judge. That’s why I spend a lot of time on my trial memoranda in FELA cases, and I did so in this case. In Kawasaki v. BNSF , I spent extra time explaining what a “safety appliance” is and how a coupler works. We had to make sure our judge understood the legal framework with respect to negligence, strict liability and causation. We also needed to be sure our judge knew enough about the facts that she had a context for evaluating the admissibility of the evidence that would be offered. Fortu- nately, in Multnomah County, most general docket judges are frequently ex- posed to law and facts that are new to them. As I expected, our judge was un- fazed by the novelty of an FELA trial and quickly learned what she needed to know to preside over the trial of Kawasaki v. BNSF . The design of the coupler used by most American railroads, including BNSF, dates back almost 150 years. Couplers are the mechanical means for Railroad Continued from p 39 On-board video recorded a hay truck suddenly pulling in front of the train driven by enginineer Michelle Kordopatis.