OTLA Trial Lawyer Spring 2021

41 Trial Lawyer • Spring 2021 evidence about past collisions, near misses and complaints to the UP about this very crossing. We had to emphasize to the court and the jury UP’s legal, nondelegable duty to Kordopatis. But more challenging was explaining to the jury how Kordopatis, the locomotive engineer, was more vulnerable to injury in the steel-clad cab of a 200 ton locomo- tive than was the driver of the truck. The laws of physics I get a crossing case nearly every year, so I have had to learn the physics of train collisions. Fortunately, the concept is relatively straightforward. The amount of force the occupant of a vehicle experi- ences in a collision is a product of the time over which the vehicle’s speed changes. As I explained to the jury, sim- ply saying an airplane went from 400 mph to 0 mph doesn’t tell you whether the plane landed and everyone disem- barked, or whether it crashed and every- one was killed. You have to know whether the plane slowed in 20 minutes or in a millisecond. In addition, there are other factors including “slack action,” “stretching,” “run-ins” and vehicle stiff- ness that factor into the forces in a train collision. In Kordopatis’ case, her train slowed around 2 mph in just under 18 milliseconds, generating 10 g’s or gravi- tational force units. That is more than what fighter pilots experience in extreme maneuvers. The initial impact was fol- lowed by a second impact caused by a “run-in.” But unlike fighter pilots, Kor- dopatis was sitting in a chair with no seat belt, little padding and no other protec- tion from the utterly predictable forces she experienced. And like every other engineer I’ve represented in a crossing collision, she was completely unbraced because she was operating the locomo- tive’s controls. Her injury was predictable and consistent not only with the science, but also with the injuries suffered by numerous other engineers in crossing collisions. Fortuitously for Kordopatis, UP’s expert testified to what UP wanted the jury to believe instead of to the actual science. Not surprisingly, the jury went with the science. And because we had briefed this, the judge did not interfere. In Kawasaki’s case, we had a freight car repair person explain to the jury how the coupler worked and why it could fail, and we had Kawasaki and a manager explain how switching operations worked, and why the train might suddenly jerk. That has to do with some- thing called “slack action” and “bunch- ing.” We spent some time explaining those concepts to the jury. The railroad brought in an expert to explain to the jury why it was not a good idea to run alongside a moving train while holding onto a pin lifter. In the Kordopatis case, we settled with Barrett’s, the crossing owner, before trial, and with Draggin’ Y, the truck owner, during trial, leaving only UP. Our $500,000 verdict against UP was satisfy- ing because UP offered only $5,000 before trial. Midtrial, UP upped its offer to $10,000, because, as the railroad rep- resentative told me in the men’s room where the offer was made, UP wanted to “send me a message.” In Kawasaki’s case, BNSF offered zero. The jury was more impressed with the BNSF’s point that Kawasaki should have let go of the pin lifter or stopped the train when he realized the coupler was broken, so they assigned 100% of the fault to Kawasaki. Luckily, the verdict form posed that question only after the verdict form asked the jury whether the coupler was SAA noncompliant and whether it was a cause of the injury. The answers to those questions were “yes” and “yes,” so Kawasaki was awarded $168,000 for his injured elbow. Gained insight Railroading, like practicing law, is not rocket science. But understanding rail- roads and railroading is an indispensable part of handling FELA cases and even cases on behalf of civilians injured by railroads. The knowledge I’ve gained working on these cases has given me insight into a unique corner of litigation, along with some really terrific clients and some great stories to tell. Paul Bovarnick is of counsel to Rose Senders and Bovarnick. He specializes in personal injury and employment law, with a particular interest in FELA cases. Bovar- nick contributes to the OTLA Guardians at the Guardians Club level. His office is located at 1205 NW 25th Ave., Portland, OR 97210. He can be reached at 503-227- 2486 or pbovarnick@rsblaw.net. The design of the coupler, used by most American railroads, dates back almost 150 years. Couplers are the mechanical means for linking railroad cars together. A defective coupler was at the heart of the Kawasaki case.