Railroad Law Section Newsletter Spring 2012

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Newsletter | Vol. 18, No. 3, Spring 2012

Endowed by Alfred K. Nippert Jr., Nippert and Nippert

Letter from the Chair

By Robert C. Sullivan, Kansas City, MO

It seems like it was just last month that I was elected Chair of the Railroad Law Section. Time really flies when you are having the kind of fun we are all having battling day in and day out with the railroads, right? The year has gone by quickly and, I hope, smoothly for members of the Railroad Section. I want to congratulate Rick Shapiro for an excellent job this year as editor of the section newsletter. I knew when Rick volunteered for the job last year that we could expect interesting content and a quarterly newsletter that would be on time and engaging. Rick lived up to those expectations and then some.

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2011-2012 Section Leadership

Robert C. Sullivan
Kansas City, MO

Steven Groves
St. Louis, MO

Vice Chair
James R. Holland
Birmingham, AL

Secretary/Newsletter Editor
Richard Neal Shapiro
Virginia Beach, VA

Immediate Past Chair
J. Kirkland Sammons
Houston, TX


AAJ Annual Convention
Annual Convention
Jul 28, 2012 - Jul 31, 2012
Hilton Chicago
Chicago, IL

Railroad Law Section Meeting
Monday, July 30, 2012
10:00 am to 11:00 am
For more informaton and to register, click here

Battling against Open “Scope” Court-Ordered Medical Exams

By Paul S. Bovarnik, Portland, OR

In one of my recent cases, the railroad sought both a neuropsychological court-ordered medical exam and a neurological medical exam. Below is an excerpted version of my response to the railroad’s motion to compel both exams.

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Insufficiency: A Lost Vestige of the FELA Applicable When Railroads Move to Exclude Safer Alternative Methods

By James (Jamie) R. Holland, Jacksonville, FL

Since the passage of the Federal Employers’ Liability Act (FELA) over a century ago, the U.S. Supreme Court, the Court of Appeals for every federal circuit in United States, and virtually every state court at every appellate level, has repeatedly interpreted the statute. In all that interpretation, a portion of the statute has been lost and forgotten.

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Special Reports Not Required from Treating Physicians in Courts Following Federal Rule 26

By Gerard B. Schneller, St. Louis, MO & Richard N. Shapiro, Virginia Beach, VA

In Fielden v. CSX Transportation, Inc., the Sixth Circuit was presented with a FELA case where summary judgment was granted in favor of the railroad because the plaintiff did not file any expert report from his treating physician.1 The Sixth Circuit held that the treating physician could testify on the issue of causation (to wit, he believed that his patient’s extensive use of a “plate jack” at work caused the patient’s carpal tunnel syndrome), notwithstanding the absence of such a report. In doing so, the Sixth Circuit observed that Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires a party “to file an expert report from a treating physician only if that physician was ‘retained or specially employed to provide expert testimony.’”2 The Sixth Circuit went on to observe “[t]his conclusion is supported by the obvious fact that doctors may need to determine the cause of an injury in order to treat it” and that “[d]etermining causation may…be an integral part of ‘treating’ a patient.”3

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“Empowerment” Evidence Is Inadmissible Assumption of Risk Evidence

By Anthony S. Petru, Oakland, CA

A railroad may assert a valid contributory negligence defense to a claim that it breached its non-delegable duty of care under the FELA in a negligence action.1 However, the law restricts the type of evidence that supports such a defense. First and foremost, “[c]ontributory negligence may arise only from plaintiff’s own act or acts of negligence, not from knowingly taking on a risk inherent in the work environment or a risk created by defendant’s negligence.”2 In other words, defendant cannot blame the plaintiff for being injured due to defendant’s own negligence. The defendant then has the burden of proof to establish that plaintiff failed to exercise reasonable care when discharging his job duties.3

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Notes From the Editor

By Richard N. Shapiro, Virginia Beach, VA

I am pleased to provide the membership this newest edition of the newsletter. I reached out to members who had briefed various current issues, and requested that the author’s provide us a suitable article. Many of us are busy, needless to say, and I am grateful for those that have shared their knowledge in this edition. This will be my last newsletter as your current editor, and I look forward to seeing many of you in Chicago at the summer 2012 convention. Thanks to Paul Bovarnik, Jamie Holland, Gerry Schneller and Anthony Petru for their articles.

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