Texas Jury Awards $1.9 Million To BNSF Engineer For "Whole Body Vibration" Spinal Injuries

On Friday, Feb. 18, 2011, a Tarrant County jury awarded Mr. James Phillips $1.9 million for career-ending spinal degenerative disk injuries following a four-week trial in Fort Worth, Texas. Mr. Phillips, a locomotive engineer, worked for the BNSF Railway for 30 years, the last 18 of which were spent on freight trains operating between Clovis and Belen, New Mexico.

In 2005, Mr. Phillips underwent MRI scans that revealed multilevel degenerative disk disease in his neck, middle and low back. Doctors initially told Mr. Phillips he needed a multilevel fusion surgery in his neck to treat herniated and degenerated disks and to stabilize his cervical spine. Later, after undergoing the neck fusion, Mr. Phillips needed additional fusion surgery in his lumbar spine to treat the disk problems in his low back. Following these surgeries, his doctors told Mr. Phillips, who was then only 55 years old, that he could not continue with his job as an engineer without risking additional damage to his spine. As a consequence, he lost the last 10 years of his career with the railroad. Under the seniority system at BNSF, these would have been his highest-earning years.

Mr. Phillips retained Bremseth Law Firm to bring legal action against BNSF under the Federal Employers' Liability Act (FELA), which is the sole method of recovery for railroad employees nationwide who are injured on the job. Railroad employees, unlike most workers, are not covered by state workers' compensation laws. To recover damages under the FELA, a railroad employee like Mr. Phillips must prove that his injuries were caused by his railroad employer's negligence or violation of a federal safety law. Bremseth Law Firm specializes in representing injured railroad employees throughout the country under the FELA.

In his lawsuit, Mr. Phillips alleged that his spinal degeneration was caused by years of working on poorly maintained locomotives with inadequate seats that exposed him to excessive whole body vibration (WBV). Mr. Phillips claimed that medical, scientific and government studies prove that long-term exposure to vibrations, shocks and jolts from rough-riding locomotives while sitting for long hours in seats that have inadequate protection can cause degenerative disk disorders. Mr. Phillips claimed that BNSF knew about this injury risk for decades, but did not address the problem. Mr. Phillips claimed that BNSF was more concerned about keeping the locomotives pulling freight and producing revenue than it was with properly maintaining its locomotives and locomotive cab seats despite the fact that many workers had complained about this problem for many years.

According to Fred Bremseth, lead trial attorney, the medical and scientific evidence demonstrates convincingly that spinal disorders like the one Mr. Phillips suffers from are caused by long-term exposure to WBV. Attorney Bremseth explained, "This is a well-recognized injury to professional drivers who must spend long hours sitting in an environment full of vibration, jolts and shocks. Most other industries, like over-the-road
truckers, for example, solved this problem long ago by installing air ride or suspension-type seats in their trucks. Regrettably, the evidence presented at trial shows that BNSF continues to be in denial on this important safety issue."

The Bremseth firm retained Eckardt Johanning, M.D., from Albany, NY, to explain this safety issue to the court and jury. Dr. Johanning is a nationally recognized expert in occupational medicine who has studied the WBV problem in the railroad industry and published his findings on the risk of spine injuries due to long-term exposure to WBV. The Bremseth firm had Dr. Johanning perform vibration testing on a locomotive en route from Clovis to Belen to obtain scientific measurements of the vibration levels. By using accepted scientific standards, Dr. Johanning gave his professional opinion that Phillips' spinal problems were caused by his overexposure to WBV over his career.

BNSF was represented by its own lead corporate attorney and by an independent law firm. At trial, BNSF claimed its vibration testing contradicted Mr. Phillips' claims. BNSF claimed its locomotives have very low WBV levels. BNSF hired its own scientific and medical experts to attempt to defend against Mr. Phillips' claims. Those experts blamed Mr. Phillips' spinal problems on other factors, including normal aging, childhood injuries and congenital problems.

The trial, which began on Jan. 25, was twice interrupted by snow and ice storms in the Dallas/Fort Worth area that closed the court for a total of five days. After hearing all of the evidence, the jury returned a verdict finding that BNSF was negligent and that it had violated the Federal Locomotive Inspection Act and locomotive safety regulations issued by the Federal Railroad Administration. The jury also found that Mr. Phillips' spinal injuries and disability were caused by these violations. The jury's award for $1.9 million includes Mr. Phillips' economic losses as well as pain and disability for the rest of his life.

Fred Bremseth stated, "This is an extremely important jury verdict for all engineers and conductors on the BNSF railroad. In this trial, the BNSF had the full opportunity to show all of its evidence. It was represented by its best lawyers and presented its side of the scientific and medical evidence from its hand-selected expert witnesses. The jury resoundingly rejected the railroad's case and accepted the science and medicine as presented by Mr. Phillips."

Phillips said he is "overwhelmed with the jury award." He expressed his deepest gratitude to the jury for taking time away from their families and lives to hear his case and render its verdict. "I am filled with emotions of gratitude to this jury and deeply humbled by the award. We engineers have tried to get better seats and better maintenance for decades. Management needs to listen to us and be more concerned about safety. I loved my job and care deeply for this company. I wish they would have cared as much about me as I cared about them."
Phillips also expressed thanks to Judge Thomas Lowe, the court staff and his lawyers.

"Before all of this happened to me, I had little understanding of how hard it is to stand up to a large and powerful corporation like BNSF. Without the dedicated professionals at the Bremseth firm, none of this could have been accomplished. They are the best. We have taken this journey together and have become very close."

Fred Bremseth urged the company to accept the jury's conclusion: "We sincerely hope BNSF management will now accept this jury verdict and stop spending millions of dollars on defense lawyers, hired courtroom experts and other expensive legal proceedings. It is time for this company to recognize and accept its responsibility, to pay fair compensation to its injured employees, and to take the steps necessary to fix the problem so the next generation of railroaders can be spared these disabling spinal injuries."