Cases
Significant Cases: Kreps, Special Representative of the Estate of Arenz v. BNSF: (2018) Represented BNSF Railway Company in the Circuit Court of McDonough Co., IL
the Appellate Court of Illinois, Third District in a FELA case. The trial court granted summary judgment for the railroad
the appellate court affirmed. Before that, the defense was successful at having the lawsuit transferred to McDonough County on a contested motion to transfer for intra-state forum non conveniens . Plaintiff claimed he sustained severe
permanent injuries to his foot, shoulder,
body while stepping off a railroad truck during work. Plaintiff's complaint alleged that ... defendant failed to provide plaintiff with a safe place to work by having large rocks or debris in the yard compound which prevented plaintiff from having secure footing while exiting the truck. The plaintiff's supervisor's report taken on the day of the alleged injury disclosed that [Plaintiff] says he didn't step on anything or twist his ankle, only he had a sharp pain which caused his right foot to give way .... . The defense presented additional evidence from witnesses
treating physicians that showed a complete lack of evidence that supported the plaintiff's theory that he was injured in whole or in part because he stepped on a large rock
that he had not stepped on any rock at all. In granting summary judgment, the trial court noted there was no evidence that there were large rocks in the yard, nor that that an illusory large rock caused (Plaintiff's) injury. The defense also proved that there was no causal relationship between the incident
the plaintiff's claimed shoulder
body injuries. In affirming the trial court, the appellate court ruled that ... plaintiff failed to establish a question of material fact concerning defendant's negligence in not using reasonable care to ensure plaintiff a safe work environment.
Winkler v. BNSF: (2015) Defended BNSF Railway in a FELA jury trial in state court in Galesburg, IL. Plaintiff, who was 47 years old at the time of the incident with four years of service, suffered a broken left rib, lacerated left kidney,
a bruised lung after being struck by a cut of railroad cars while setting h
brakes in the Galesburg train yard in December of 2009. Much of the testimony
evidence at trial centered around how the accident occurred
the applicable rules. Plaintiff alleged that just before the accident he received communication from the Hump Tower Yardmaster that there was a block on Track 19,
that after the accident he was told for the first time that the track was blocked
rolling, which means that train cars could still be coming down the track. Plaintiff
his expert opined that the use of the term blocked
rolling is ambiguous
that a track cannot be blocked
also have cars rolling. Plaintiff also alleged that he had never heard the term until after the incident, although several BNSF witnesses testified that the term was explained during plaintiff's training
on at least two other occasions. Plaintiff also alleged his training was deficient because he was told it was permissible to straddle the rail when setting a h
brake in the bowl,
that he was not familiar with his job responsibilities on the day of the accident. Plaintiff asked the jury for a minimum of $767,000, but received net verdict of $28,000, which reflected the jury's decision to reduce his overall damages by 50% based on the plaintiff's own negligence.
Burke v. BNSF: (2015) Represented BNSF Railway at trial in a railroad crossing case in which plaintiff claimed he injured his back while lifting a man
his electric wheelchair that had been caught in the BNSF railroad tracks at a pedestrian crossing. The lawsuit alleged that BNSF failed to properly maintain the crossing,
that an oncoming train put the wheelchair-bound individual in imminent peril. The crossing in question has two main sets of train tracks bisecting the intersection at an angle. At the time of the incident, the crossing was equipped with active advance warning devices (automatic gates, flashing lights,
a bell). At trial, the defense presented evidence that there was no immediately oncoming train, including evidence that none of the warning devises were activated at the time of the alleged incident. Plaintiff alleged he sustained a herniated disc
nerve damage in his back
right leg,
related medical bills totaling $147,000. Plaintiff testified that he experiences pain when he attempts to sit, st
, walk or lie down,
that he continues to have to walk with a cane. The defense presented evidence from multiple physicians that revealed no significant findings of back injury, including testimony from plaintiff's treating neurosurgeons that confirmed that his MRI showed only normal degenerative changes. In addition, the defense presented expert testimony in the areas of railroad engineering,
compliance with the Federal Railroad Administration, the Illinois Commerce Commission
other relevant st
ards. After a five-day trial the jury returned a defense verdict on all counts.
Furrow v. BNSF: (2014) Represented BNSF Railway Company at trial in case that was brought under the Federal Employers Liability Act (FELA),
tried to a defense verdict in state court in Galesburg, Illinois. In the underlying incident, the plaintiff, a BNSF machine operator, claimed he injured his neck while operating an end-loader to move 20-30 pieces of rail from one side of the tracks to the other. The plaintiff alleged his injury resulted in his undergoing a two-level discectomy
spinal fusion. Plaintiff argued at trial that the operating procedures in place at the time of his injury were improper,
, based on other prior events, BNSF should have known to instruct him to perform the task differently. In defense, BNSF called a biomechanical engineer to refute the way the injury allegedly happened,
presented testimony, including from a former Director of Maintenance for another railroad, that the equipment was safe, appropriate for the task,
consistent with industry practices.
Higgins v. BNSF: US Central District of Illinois, 12 CV 3072, 2014 WL 2598815: Plaintiff filed a complaint alleging that his osteoarthritic knee was caused by working as a laborer
machinist for over 34 years with the railroad. He spent the last part of his career as a machinist in the diesel pit
then later as a ready-side machinist preparing locomotive consists for departure. Plaintiff ultimately underwent a total knee replacement
retired, claiming that he could not do the work. Defendant's biomechanical expert found that Plaintiff's job duties were reasonably safe, that the forces of said job duties did not expose Plaintiff to osteoarthritis,
that the injury was not forseeable. Defendant's orthopedic expert opined that Plaintiff's condition could be explained by non-occupational factors. The railroad moved for summary judgment arguing that there was no evidence of negligence, that it was unforeseeable that the work would result in a degenerated knee,
that Plaintiff had failed to prove, even under the relaxed st
ards of the FELA, a causal relationship between the work
the knee degeneration. The Court granted Defendant's motion for summary judgment finding that Plaintiff failed to provide any genuine issue of material fact with respect to causation, forseeability,
negligence.
Nunez v. BNSF: (2013) Represented BNSF in a Seventh Circuit railroad crossing fatality case in which the court affirmed summary judgment for the railroad. The appellate court agreed with the district court that there was no evidence the railroad was negligent. The appellate court also upheld the railroad's exclusion of both of plaintiff's expert witnesses under a Daubert st
ard.
Willis v. BNSF: (2013) Represented BNSF in the Central District of Illinois in a case that involved a Federal Safety Appliance Act (FSAA) count
a FELA count in which the court granted summary judgment for the railroad on the FSAA count. Plaintiff employee argued he was injured by a h
brake in violation of the FSAA, but the court agreed there was no evidence the railroad violated the FSAA. Due to the aggressive defense of the remainder of the case, Plaintiff settled his FELA claim as well as two other, unrelated claims, for less than his stipulated lost wages figure in the case.
Brown v. BNSF: (2013) Represented BNSF in the Central District of Illinois in a FELA case in which Plaintiff alleged his work caused multiple cumulative trauma injuries
that he needed permanent work restrictions in order to continue to perform his job. The court excluded all testimony of plaintiff's expert doctor because his testimony established a diagnosis of cumulative trauma, but did not establish causation. The court then granted the summary judgment to the railroad, finding that plaintiff had presented no evidence of causation to support his FELA claims. The United States Circuit Court of Appeals for the Seventh Circuit affirmed the summary judgment based on the lower court's exclusion of the plaintiff's expert's testimony.
Mwesigwa v. DAP, Inc.: (2011), United States District Court Eighth Circuit, summary judgment affirmed in a wrongful death case. The court held that the Federal Hazardous Substances Act preempts any state law cause of action based upon a theory that a product's label should have included warnings not required by the FHSA.
Thurman v. Hamm's Holiday Harbor: (2005), Peoria County. Represented the defendant in a wrongful death trial that resulted in a defense verdict.
O'Rourke v. Samsung: (2001), United States District Court, Central District, Rock Isl
Division, obtained summary judgment for our client, the seller of television satellite dishes, set-top boxes
software developers, in the defense of a complex commercial claim involving alleged faulty software code
warranty claims. Court found that the governing state law precluded recovery under the Uniform Commercial Code for incidental
consequential damages,
the contractual limitation was enforceable.
Bell v. BNSF: (2001), Successful defense of catastrophic injury claims of driver
passenger who struck the side of a st
ing flat car in a rural area in the dark. The appellate court affirmed the st
ing car rule entering judgment for the railroad.
Rogers v. Gould: Defense of products liability claim for claimed explosion causing blindness.
Moore v. Diamond-Star Motors: (1993), McLean County, multi-party trial.
Miller et al. v. Koch: (1993), Madison County, four week trial of multi-party death
serious injury claim.
Fearnow
Colvin v. Steidinger: (1997), Livingston County. Represented the defendant in a multi-party death trial that resulted in a defense judgment against the driver.
Bishop v. S.B., M.D.: (1989), LaSalle County. Represented the defendant in a four-week trial of a medical malpractice claim involving loss of limbs from diabetic vascular insufficiency. The trial resulted in a defense verdict.
Whittaker v. Mueller: (1993), Successful defense of pseudorabies claim from commercial hog producer for veterinarian resulting in outright dismissal after discovery
investigation of viral contagion characteristics.
