Date: 12-02-2012

Case Style: James Castleberry, Jr. v. BNSF Railway Company

Case Number: CJ-2010-1623

Judge: Tracy Schumacher

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Clifton D. Naifeh and Jason P. Kelly

Defendant's Attorney: Rod L. Cook, Lance Chandler Cook, Sean Denton, Cary E. Hiltgen

Description: James Castleberry, Jr. sued BNSF Railway Company on a negligence theory claiming:

1. Defendant is a corporation duly organized and existing under the law and Defendant is engaged in the business of operating a railway system in interstate commerce and in the transportation of freight by railroad in interstate commerce, and Defendant engages in such business in Cleveland County, State of Oklahoma and owns, controls and operates a railroad running into and through Cleveland County, State of Oklahoma. Defendant maintains offices, yards, trackage and employees and agents within Cleveland County, State of Oklahoma for the conduct of its ordinary business.

2 This action arises under the provisions of 45 U.S .C. § § 51-60, commonly known as the Federal Employers’ Liability Act.

3. Plaintiff has been employed by Defendant BNSF Railway Company since June 1973, in various positions, including as an engineer, and as such was required to use/operate railroad provided equipment/machinery which required excessive use of his neck and spine, including awkward positions and movement, and operating equipment and riding track which exposed his neck and spine to cumulative trauma.

COUNT I - FELA

(CUMULATIVE TRAUMA)

4. Plaintiff re-alleges and incorporates by reference Paragraphs 1 through 3 of this Petition as though fully set out herein.

I Plaintiff has sustained cumulative neck and spine trauma and damage which resulted in whole or in part from the following negligent acts/omissions of Defendant, its agents, servants and employees in the following respects in violation of the Federal Employers’ Liability Act. 45 U-S.C. 51, etseq.:

a. It failed to provide a reasonably safe place to work;

b. It failed to provide reasonably safe conditions for work;

c. It failed to provide reasonably safe equipment for work;

d. a failed to provide reasonably safe methods for work;

e. It failed to take any effective action to reduce the amount of cumulative trauma of the neck, back and spine to which Plaintiff was exposed;

f. It failed to periodically test employees, such as Plaintiff, for physical effects of cumulative trauma to the neck, back and spine, and failing to take appropriate action including advising Plaintiff as to the test results;

g. It failed to warn Plaintiff of the risks, dangers, and harm to which he was exposed in working with and around cumulative trauma to his neck, back and spine;

h. It required and/or allowed Plaintiff to be exposed to dangerous levels of cumulative trauma to his neck, back and spine when it knew of the risks thereof;

I. It failed to inspect or monitor the occupational cumulative trauma in the job duties where Plaintiff was required to work; .1. It failed to warn Plaintiff of the risks of cumulative occupational trauma injuries to the neck, back and spine;

k. It failed to make reasonable efforts to ascertain the risks and hazards of cumulative trauma and cumulative trauma disorders;

1. Its tools and equipment have not been ergonomically designed to minimize exposure to risk factors for the development of cumulative trauma disorders to the neck and spine;

m. It failed to properly maintain, inspect or repair the equipment with which Plaintiff was required to work;

n. Its locomotive seats were not in a reasonably safe condition;

o. It has failed to maintain its track in a reasonably safe condition; and

p. It failed to comply with 49 C.F.R. § 229.7 (a)(1) and (2), 229.9, 229.41, 229.45, and 220.63 constituting negligence per se.

6. As a result, in whole or in part, of one or more of these negligent acts or omissions, the Plaintiff suffered injuries to his neck, back and spine; he sustained injuries to the soft tissues, ligaments, tendons, muscles, blood vessels and nerves of his neck, back and spine; he sustained bruising, straining and scarring of the soft tissues, ligaments, tendons, muscles, blood vessels and nerves of his neck, back and spine; he has been caused to undergo severe pain and suffering and will continue to undergo severe pain and suffering; he has sought and received medical care and attention, including a hemilaminectomy, foraminotomy, and decompression of the L4-5 level of his spine, and will continue to receive medical care and attention in the future; he has suffered psychological and emotional injury, mental anguish and anxiety and will continue to suffer psychological and emotional injury, mental anguish and anxiety in the future; he has incurred medical expenses and will continue to incur medical expenses; he has lost wages, earning capacity and benefits and will continue to lose wages, earning capacity and benefits; all to his damage.

7. This claim is filed within three (3) years of the date that Pbintiff knew that his neck, back and spine injuries were work related.

WHEREFORE, Plaintiff James Castleberry, Jr., prays for judgment in Count I against Defendant BNSF Railway Company, in a sum which is fair and reasonable, which sum is in excess of Seventy-Five Thousand Dollars ($75,000), plus costs of suit.

COUNT II- LOCOMOTIVE INSPECTION ACT

(CUMULATIVE TRAUMA)

8. Plaintiff re-alleges and incorporates by reference Paragraphs 1 through 3 of this Petition as though fully set out herein.

9. Plaintiff has sustained cumulative neck and spine trauma and damage which resulted in whole or in part from the following negligent acts/omissions of Defendant, its agents, servants and employees in the following respects in violation of the Locomotive Inspection Act, 49 U.S.C. § 20701:

a. It failed to provide Plaintiff with reasonably safe locomotives on which to work;

b. Its locomotives did not effectively cushion shock, slack action, lateral action or vibrations from damaging the bodies of its employees;

c. Its locomotive seats were not adequately cushioned or securely suspended to reduce the dangerous effects of shock, slack action, lateral action or vibrations;

d. It permitted the use of engines which it failed to equip with cab seats securely mounted and braced in violation of 49 C.F.R. § 229.119;

e. It permitted the use of engines which were not in proper condition and safe to operate in the service to which each was put in violation of 49 C.F.R. § 229.7, 229.41 and 229.45; and.

f. Defendant failed to properly and timely inspect its engines.

10. As a result, in whole or in part, of one or more of these negligent acts or omissions, the Plaintiff suffered injuries to his neck, back and spine; he sustained injuries to the soft tissues, ligaments, tendons, muscles, blood vessels and nerves of his neck, back and spine; he sustained bruising, straining and scarring of the soft tissues, ligaments, tendons, muscles, blood vessels and nerves of his neck, back and spine; he has been caused to undergo severe pain and suffering and will continue to undergo severe pain and suffering; he has sought and received medical care and attention, including a hemilaminectomy, foraminotomy, and decompression of the L4-5 level of his spine, and will continue to receive medical care and attention in the future; he has suffered psychological and emotional injury, mental anguish and anxiety and will continue to suffer psychological and emotional injury, mental anguish and anxiety in the future; he has incurred medical expenses and will continue to incur medical expenses; he has lost wages, earning capacity and benefits and will continue to lose wages, earning capacity and benefits; all to his damage.

11. This claim is filed within three (3) years of the date that Plaintiff knew that his neck, back and spine injuries were work related.

WHEREFORE, Plaintiff James Castleberry, Jr., prays for judgment in Count II against Defendant, BNSF Railway Company, in a sum which is fair and reasonable, which sum is in excess of Seventy-Five Thousand Dollars ($75,000), plus costs of suit.

Defendant BNSF Railway Company answered as follows:

1. Defendant BNSF admits it is a Delaware corporation, and it does operate a railway system in interstate commerce. Defendant denies all other allegations contained within Paragraph 1 of Plaintiff’s Petition, and demands strict proof thereof

2. Defendant acknowledges the FELA but denies that Plaintiff has a cause of action thereunder, and demands strict proof thereof.

3. Defendant admits that Plaintiff was employed byBNSF. Defendant denies all other allegations contained within Paragraph 3 of Plaintiffs Petition, and demands strict proof thereof.

COUNT I - FELA

(CUMULATIVE TRAUMA)

4. In response to the allegations contained within Paragraph 4 of Plaintiff’s Petition, Defendant BNSF adopts, incorporates and restates each and every response it has provided in this Answer for each and every allegation contained in Paragraphs 1 through 3 of Plaintiff’s Petition.

5. Defendant denies all allegations of Paragraph 5 ofPlaintiff’s Petition, including each and every subpart contained therein, and demands strict proof thereof.

6. Defendants denies all allegations of Paragraph 6 ofPlaintiff’s Petition, and demands strict proof thereof.

7. Defendants denies all allegations of Paragraph 7 of Plaintiff’s Petition, and demands strict proof thereof.

COUNT II- LOCOMOTIVE INSPECTION ACT

(CUMULATIVE TRAUMA)

8. In response to the allegations contained within Paragraph 8 of Plaintiff’s Petition, Defendant BNSF adopts, incorporates and restates each and every response it has provided in this Answer for each and every allegation contained in Paragraphs 1 through 3 of Plaintiff’s Petition.

9. Defendant denies all allegations ofParagraph 9 of Plaintiffs Petition, including each and every subpart contained therein, and demands strict proof thereof’.

10. Defendants denies all allegations ofParagraph 10 ofPlaintiff’ s Petition, and demands strict proof thereof.

11. Defendants denies all allegations ofParagraph 11 ofPlaintiff’ s Petition, and demands strict proof thereof.

AFFIRMATIVE DEFENSES

1. For fUrther answer and separate defense, Defendant denies every material allegation of Plaintiff’s Petition not specifically admitted herein.

2. For fUrther separate answer and defense, Defendant BNSF alleges that Plaintiff’s Petition fails to state a claim upon which relief maybe granted.

Defendant believes and therefore avers that Plaintiff was negligent and that his own negligence was the sole superceding and independent proximate cause of the injuries complained of in his Petition. Alternatively, if Plaintiff’s negligence/fault is not a complete bar to his claims, BNSF avers that the negligence/fault of the Plaintiff’s negligence did contribute in a substantial way to the happening and/or occurrence of his alleged injuries. Accordingly, Defendant pleads Plaintiff’s contributory negligence as a complete and/or partial bar to the entirety of Plaintiffs claims.

9. For further answer and separate defense, Defendant alleges that Plaintiffs injuries, if any, were caused, in whole or in part, by his own culpable conduct, including voluntary assumption of the risk. Plaintiffs claims therefore are completely barred. Alternatively, Plaintiff’s claims are reduced by this conduct.

10. For further separate answer and defense, Defendant would show that Plaintiff’s injuries and damages, if any, were caused, in whole or in part by Plaintiffs failure to exercise ordinary care.

11. While denying that Plaintiffhas sustained the damages as averred, Defendant believes that Plaintiffs recovery, if any, is limited to the provisions of the Federal Employer’s Liability Act, and said recovery is limited to those damages specifically enunciated therein. Any of Plaintiffs claims outside the Federal Employer’s Liability Act fails to state upon which relief can be granted and should be dismissed.

12. For further answer and separate defense, Defendant alleges Plaintiffs injuries, if any, were caused, in whole or in part, by the culpable conduct of other persons or entities who are not parties to this action.

13. For further answer and separate defense, Defendant BNSF alleges that ifPlaintiffwas injured or damaged as alleged, which injuries and/or damages are not admitted but specifically denied, that the accident and injuries, if any, were caused or contributed to by reason of a negligence of third parties over whom this Defendant had no control or which were unforeseeable. These third parties’ actions were an intervening cause.

14. For further answer and separate defense, Defendant BNSF claims the accident and injuries to Plaintiff alleged in his Petition, which injuries and/or damages are not admitted but are expressly denied, if any, were caused solely by the combination ofthe negligence ofPlaintiff and/or the negligence of third parties over whom BNSF had no control.

15. For further answer and separate defense, Defendant BNSF claims that if it was negligent as alleged, which negligence is not admitted but expressly denied, that Plaintiffand/or third parties over which BNSF had no control, were also negligent and that such negligence must be considered in diminution of Plaintiff’s claim for damages.

16. For further answer and separate defense, Defendant alleges Plaintiff’s injuries, if any, were caused, in whole or in part, by an intervening and/or superceding causes, and/or the acts or omissions of others for whom Defendant is not responsible.

17. For further separate answer and defense, Defendant BNSF alleges that Plaintiff’s alleged injuries and damages, if any, were caused in whole or in part by preexisting conditions or other contributory or concurrent conditions or factors.

18. For further answer and separate defense, Defendant alleges that the acts or averred omissions of Defendant were not the proximate cause of Plaintiff’s injuries, if any.

19. For further separate answer and defense, Defendant BNSF alleges that Plaintiff has failed to mitigate his damages.

20. For further answer and separate defense, Defendant alleges that Plaintiff’s damages, if any, should be barred or reduced as caused by Plaintiff’s own negligence, his failure to take reasonable actions to avoid and/or mitigate his damages.

21. For further answer and separate defense, Defendant alleges that Plaintiff’s Petition is barred by the doctrine of laches to the extent applicable.

22. For further answer and separate defense, Defendant alleges that Plaintiff’s Petition is barred by the doctrine of estoppel.

23. For fhrther answer and separate defense, Defendant alleges that Plaintiff’s Petition is barred, in whole or in part, on the basis of a prior release.

24. For further answer and separate defense, Defendant alleges Plaintiffs injuries, if any, were not the result of his employment, but rather, resulting from conditions outside the workplace.

25. For fbrther answer and separate defense, Defendant alleges the incident or matters underlying Plaintiffs causes of action were not foreseeable.

26. For further separate answer and defense, Defendant states that it is not an insurer of the safety of its employees.

27. For further separate answer and defense, Defendant states that Plaintiffs Federal Employer’s Liability Act and Locomotive Inspection Act claims are bared as a matter of law.

28. For further answer and separate defense, Defendant alleges it had no notice or knowledge, nor should it have had notice or knowledge, ofthe averred unsafe conditions complained of in Plaintiffs Petition.

29. Defendant to the extent by law claims a credit for any medical and/or other expenses paid to Plaintiff pursuant to the collective bargaining agreement and other agreements between the Plaintiff, his union, and the Defendant.

30. While denying any liability whatsoever to Plaintiff, on any grounds, Defendant believes and therefore avers that it would nevertheless be entitled to a set off, against any claim asserted by Plaintiff, of such sums which have been paid by or funded by Defendant on behalf of Plaintiff, including, but not limited to, all amounts Defendant contributed to the Railroad Retirement Board for any and all sickness and/or disability or other benefits enuring in favor of the Plaintiff

31. For fUrther separate answer and defense, Defendant BNSF asserts and alleges that Plaintiff is a member of a labor union that has acted in his behalf and as his collective bargaining agent. This labor union has entered into written collective bargaining agreements with the Defendant by the terms of which the Defendant is obligated to pay certain wage disability and/or medical benefits to union members, such as the Plaintiff, who are allegedly injured and/or disabled under certain prescribed circumstances; provided however, that payment by Defendant of such benefits shall be offset against any judgment, settlement or damages subsequently awarded to said union members and claims or lawsuits arising out of the same incidents as gave rise to the eligibility for, and receipt of, such benefits, Defendant is informed and believes and thereon alleges that Plaintiff has received certain benefits afforded by one or more of the aforementioned collective bargaining agreements. Defendant is uncertain at this time of the amount of the benefits which have been paid to the Plaintiff and prays for leave of court to amend this Answer at the time of trial to assert said figures.

32. For further separate answer and defense, Defendant BNSF asserts that venue is improper, and the case should be transferred to a Court of proper venue.

33. For fUrther answer and separate defense, Defendant alleges that the accidents/incidents in question were unavoidable and occurred without the negligence of Defendant.

34. Plaintiff has failed to join parties necessary to this action under 12 0.5. § 2019(A). 35. Defendant reserves the right to supplement this answer and/or defenses.

WHEREFORE, Defendants pray that Plaintiff take nothing by way of his Petition and that this Court grant Defendants all relief this Court deems just and proper.

Outcome: Plaintiff, James Castleberry, dismisses all claims against Defendant, BNSF Railway Company, with Prejudice to re-file.

Plaintiff's Experts:

Defendant's Experts:

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