Virginia Lawyers Weekly VA Lawyers Weekly
The case involved a 52-year-old Norfolk Southern Railroad locomotive engineer who was injured on May 1, 2011, in the Waynesboro Yard. At approximately 11:00 p.m., he tripped over a metal “joint” bar that had previously been removed from one of the tracks, causing him to fall into a nearby switch stand and sustain serious injuries. Very poor lighting in the yard, coupled with the presence of the switch stand, which had been scheduled for removal at least eight months prior to the accident, provided additional evidence of negligence on the part of the defendant railroad.
Although two MRIs and two CT scans were negative for a torn disc at L3-4, a subsequent discogram showed the L3-4 disc to be torn and diagnostic as the painful disc that was generating the plaintiff’s chronic low back pain. This was in addition to an L2 facet joint fracture that was shown on all of the diagnostic films. Plaintiff claimed that these injuries disabled him from his previous occupation as a locomotive engineer and his doctors testified that this limited his potential employability to only sedentary work. In spite of this, plaintiff argued that there was no guarantee that he could find such an alternative job in light of his ongoing disability and his daily reliance on narcotic pain medication.
The defense called a neurosurgeon, Dr. Sander Leivy, who testified that all of the MRI’s and CT scans were negative for an L-3/4 disc rupture, even the post-discogram CT scan. He relied solely on a medical records review and had never seen or examined the plaintiff.
The jury awarded $2.4 million dollars after deliberating for five hours. Post-trial motions are anticipated.
[14-T-029]Type of action: FELA — Railroad Personal Injury
Injuries alleged: Fractured facet joint at L-2 (resolved); Torn disc at L-3/4 causing chronic pain
Name of case: Rothgeb v. Norfolk Southern Railway Co.
Court: Roanoke Circuit Court
Case no.: CL12-1036
Tried before: Jury
Judge: Charles Dorsey
Date resolved: Feb. 27, 2014
Special damages: Approximately $760,000 in economic loss, consisting of past lost wages and future lost wages and benefits
Demand: $750,000
Offer: $350,000
Verdict or settlement: Verdict
Amount: $ 2,400,000
Attorneys for plaintiff: Michael R. Davis and Willard J. Moody Jr., Portsmouth
Plaintiff’s experts: William Agnor, liability, Madison Heights; Elizabeth Davis, vocational assessment, Cedar Bluff; Larry Lynch, Ph.D., economics, Salem; treating physicians included Dr. Murray Joiner, Roanoke, and Dr. Jesse Stem, Lynchburg
Defendant’s experts: Dr. Sander Leivy, neurosurgeon, Roanoke; Barbara Byers, vocational assessment, Portsmouth; William Dacey, economics, Richmond
