Yaeger 2007 Crowell Article
On January 19, 2007, a Cascade County jury in Great Falls, Montana awarded $1,000,000 to a BNSF Railway switchman from Belt, Montana. The Plaintiff is a 27-year railroad veteran named Crowell who suffered a career-ending soft tissue low back injury when he chased down and stopped a runaway train in BNSF’s Great Falls railyard.
On April 9, 2004, the Plaintiff was performing switching maneuvers in the Great Falls railyard when a runaway cut of cars collided with the train he was working on, causing a derailment. Immediately following the collision, the Plaintiff saw another cut of cars on a different track heading for a second collision with his train. Faced with an emergency situation, the Plaintiff took decisive action and ran down the tracks, jumped onto the runaway train and tied down the hand brake, stopping the train within a few feet of the first train, avoiding another collision.
Following this incident, the Plaintiff began to experience low back pain, but felt it was only a pulled muscle that would resolve on its own. He finished his shift and continued to work for the next two weeks. The pain became unbearable, so he sought medical treatment. The Plaintiff was initially diagnosed with a low back strain; however, after months of treatment and intense physical therapy, his pain continued. His treating physician, a pain specialist, ultimately determined he suffered from myofascial low back pain, a condition that would continue for the rest of his life. Due to his injuries, both his treating physician and the railroad’s own doctor took him out off the job.
At trial, the railroad denied any responsibility for his injuries, claiming all his lower back pain was due solely to pre-existing conditions. According to Defendant’s expert, Dr. James Burton, the Plaintiff suffered from severe degenerative disc disease of the entire lumbar spine as a result of his age, weight and history of smoking. Dr. Burton testified there was no evidence the Plaintiff suffered any kind of traumatic injury, and all of his pain was unrelated to any activity he performed for the railroad. Dr. Burton even went so far as to allege the Plaintiff had pain in his lower back prior to the April 9, 2003 incident, and that he just didn’t tell anyone because it would help his claim not to do so.
YJB attorneys Bob Dolan and Greg Yaeger never denied the Plaintiff had severe degeneration of his lower back; however, the damages he had suffered were due to soft-tissue injuries that are separate and distinct from the mechanical changes in his back. After an elaborate anatomy lesson from Dr. Burton on the degeneration of the spine and the pain caused by such degeneration, Mr. Dolan and Mr. Yaeger were faced with the daunting task of convincing the jury that the Plaintiff’s pain was completely unrelated to the degeneration.
Mr. Dolan effectively argued the Plaintiff’s pain was solely due to the soft tissue injuries he suffered on April 9, 2003, and had nothing to do with the degeneration in his back. The evidence in the case established that the Plaintiff had never complained of lower back pain prior to April 9, 2003, despite the degeneration of his spine. On cross-examination, Mr. Dolan got Dr. Burton to admit that an x-ray of the Plaintiff’s back the day before his accident would have been identical to an x-ray taken the day after. Thus, the only change that had taken place is that the Plaintiff began suffering pain immediately following the April 9, 2003 incident, and continues to suffer chronic pain to this day.
It is also significant to note that the BNSF spent a great deal of time hammering the Plaintiff on his efforts to mitigate his damages. The BNSF claimed that Mr. Crowell could have taken a yardmaster position that would have been within his physical restrictions. This position pays more than what he was making before his injury. Unfortunately for the BNSF, the Plaintiff had been a yardmaster several years prior to the accident and could not handle the position. Furthermore, despite the BNSF’s claims, the Plaintiff in fact had been mitigating his damages by going back to school after 27 years on the railroad in order to improve his skills and make him more marketable in the job market.
In the end, the jury did not buy any of the BNSF’s arguments. The jury returned a verdict of $1,000,000 and found that none of the Plaintiff’s damages where due to his pre-existing degenerative conditions, but rather where due to the myofascial soft-tissue pain he suffered as a result of running down the BNSF’s train. The jury also felt that the Plaintiff’s efforts to mitigate his damages by returning to school were reasonable, and they did not penalize him for not taking the yardmaster position.