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Corporate rep must go first in depositions, judge rules

A Virginia circuit court judge has ruled that a railroad’s corporate representative must sit for a deposition before the injured railroad worker is deposed in the worker’s lawsuit under the Federal Employers Liability Act.

The unusual ruling comes in a case in which the injured worker was unable to see the circumstances that allegedly led to his injury. The plaintiff’s lawyer argued the defendant railroad had more information about the cause of the accident than the victim.
The same case also produced a ruling that the railroad’s discipline letter to another employee involved in the accident was not protected from discovery by a “self-critical analysis” privilege.

The rulings from Judge Paul W. Cella in Nottoway County Circuit Court come in the case of Webb v. Norfolk Southern Railway (VLW 013-8-068)

Railyard crash

Ricky Webb was a Norfolk Southern engineer who, on Aug. 10, 2011, was driving a locomotive to move cars about in the company’s rail yard in Crewe, according to his lawyer, Richard N. Shapiro of Virginia Beach.

Webb’s locomotive was pushing a string of cars. Because the locomotive was at the back of the line of cars, Webb could not see whether the track ahead was clear. He was being directed by another employee, a brakeman, using a two-way radio, Shapiro said.

“The eyes and ears of the engineer are the brakeman on the ground,” Shapiro said.

The brakeman allegedly failed to realize that the track was blocked by four rail cars sitting in the way with brakes on. The engineer, Webb, believed the track was clear.

The train slammed into the standing rail cars, and Webb was injured as he was thrown about in the cab of his locomotive, according to Shapiro.
Webb’s spinal injury required a cervical fusion and he was deemed medically disabled from any railroad job, Shapiro said. His lost wages could top $1 million, Shapiro said.

Corporate designee must go first

After suing the railroad on behalf of Webb, Shapiro promptly sought a deposition of a company-designated representative.

Norfolk Southern objected, noting Shapiro scheduled the corporate representative deposition before responding to any written discovery and before depositions of any fact witnesses were even scheduled.

“To reward this tactic would result in parties racing to notice depositions without regard for the progress of the case or the legitimate need for those depositions,” the railroad’s lawyers wrote.

“It makes little sense to compel the deposition of a corporate representative before the parties have developed the basic facts of the case through written discovery and/or fact witness depositions,” the defense said.

Shapiro said the railroad threw up objections to the topics of the corporate designee deposition “solely to delay its production of the corporate representative.” Shapiro asked to be allowed to depose the corporate representative before the plaintiff was deposed.

“I agree with plaintiff’s position,” wrote Cella in a Feb. 15 opinion letter. He ordered the corporate representative to go first among depositions.

Cella’s decision to allow the corporate representative to be deposed first is a rarity, Shapiro said.

“That’s the first time for me in any practice,” he said.

Shapiro noted there is often “a lot of jockeying” about the timing of corporate representative depositions. “The plaintiff would like to pin down the corporate defendant first, if possible,” he acknowledged.

In this case, Shapiro said, the facts supported his request to make the company representative sit for questioning before other witnesses. His client, Webb, was not in a position to see what happened to cause the accident, but the railroad had done an investigation.

“I felt like I had a very valid argument in this case,” Shapiro said.

Split rulings on privilege issues

Cella ruled against Webb on one privilege issue. He denied access to a recorded statement of a railroad conductor taken by an in-house claims agent. The judge held the statement was privileged because it was prepared in anticipation of litigation and a deposition of the conductor should offer a “substantial equivalent.”

Cella denied another claim of privilege by the railroad, which sought to block Webb’s access to a discipline letter sent to the brakemen who allegedly failed to ensure the track was clear for Webb’s train. The railroad contended the letter was protected by a “self-critical analysis” privilege.

The letter resulted from an “internal investigation” by railroad supervisors, the defense lawyers said. The railroad intended for the information to remain confidential, they told the judge.

The railroad “has a strong interest in preserving the free flow of this type of information,” the railroad lawyers wrote. “The ability to evaluate the conduct of railroad workers and to freely exchange criticism is critical to the overall improvement of railroad safety,” they said.

Shapiro wrote that he could find no Virginia case, state or federal, affirming the self-critical analysis privilege to prevent discovery of documents.

The judge agreed. “In my opinion current Virginia statutes and case law do not recognize the self-critical analysis privilege,” Cella wrote in a March 1 opinion letter.

Cella noted a variant of the claimed privilege is codified in the Virginia Medical Malpractice Act, protecting medical peer reviews, but he rejected any suggestion the statute extends to other kinds of litigation. The judge ordered the railroad to produce its letter to the brakeman.

Railroads have been raising the self-critical analysis argument “for years,” Shapiro said.

“It’s almost like the Cloak of Invisibility from Harry Potter,” he said. “They’re hoping the judge will buy it because then the plaintiff will never get anything.”

“We haven’t ever had a judge in Virginia rule that it applies,” Shapiro said.

Trial in Webb’s lawsuit is scheduled for five days in December.

“We are still hoping to get the case settled before then,” Shapiro said.

C. Stephen Setliff of Glen Allen, counsel for Norfolk Southern, did not respond to a request for comment by press time.

VLW 013-8-068

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