• April 17, 2013

Coke Pause that Refreshes ImageRecently the Minnesota Court of Appeals unanimously, and correctly it would seem, reversed a decision by a very able Hennepin County judge to dismiss a FELA case in Gallagher v. BNSF.  ((FELA stands for Federal Employer’s Liability Act, which is a century old federal law creating fault based liability for railroads when their employees are injured on the job.  It is a kind of “workers compensation” for railroad workers, but it is dramatically different from typical workers compensation schemes.  The employee injured on the job must prove fault or statutory equipment violations to recover compensation, but the level of proof of fault required is usually lower than in common law personal injury cases.  If the employee proves fault then they are entitled to full compensation, subject to pure comparative fault reduction, and there is no severe, arbitrary limitation of damages as there is in workers compensation systems.))  Plaintiff Gallagher was a railroad worker who hurt his back when he had to repeatedly manipulate the coupling device on a railroad car.  The plaintiff had to move the drawbar holding the coupling device so that it would be straight and aligned with the movement of the car.  Yet the car failed to couple, in apparent violation of the statute requiring the coupler device to work automatically when properly aligned.  Appeals Court Judge Cleary writes a plain and meticulous explanation of the law and the conflicting evidence in the record that supports his conclusion that summary judgment was inappropriate and the case should go to a jury trial. What intrigues me is that such a smart and capable District Judge saw the case differently and dismissed the case despite the evident fact issues.

The District Court decision seems skeptical that there is any evidence of fault and is reluctant to accept that the fact of a malfunctioning coupler may itself be proof of defect and a statutory violation under the right circumstances.  The District Court’s opinion emphasizes that the plaintiff saw nothing out of the ordinary about either the faulty equipment, or the fact that it was difficult to manipulate, when he injured his back.  ((The fact that equipment is customarily difficult to operate might be argued to suggest its condition was not the product of negligence, but some customs are “the result of careful thought and decision, while others arise from the kind of . . . cost-paring and corner cutting that normally is associated with negligence”.  William L. Prosser, Law of Torts, 167 (4th Ed. 1971). ))  The District Judge emphasizes the opinion of the railroad manager, who did not see the event in question, but who believes the equipment failure must have been due to misalignment of the couplers since the plaintiff kept trying to realign them again after each failed coupling attempt. The plaintiff, however, contended that each time he aligned the couplers, he thought he properly aligned them and they then appeared straight.  How can that not raise a fact issue?  Sure there were no witnesses and one can question whether plaintiff’s claim is self-serving, but keep in mind he was assigned to do a job all by himself and so the lack of other witnesses is inherent in the situation.  It seems a question made for the jury.

I have a theory, purely speculative, that may explain the district judge’s skepticism about the plaintiff’s case.

Judge Cleary sets forth the conflicting evidence, some of which suggests that the railroad coupler’s failure to work was not due to misalignment by the worker, but rather may evidence a mechanical defect.  At the heart of the evidence for the plaintiff was the plaintiff’s own deposition testimony.  Cleary’s opinion notes that plaintiff’s testimony was marred by that awkward situation many litigators have experienced.  Namely, that the witness’ testimony appears to have changed following a presumably strategic break in the deposition.  It is reported that at one point in his deposition, plaintiff suggested there was nothing “wrong” with the coupler, and that he simply needed to realign it.  As the opinion notes, however, after “a lengthy break in the deposition”, the plaintiff “changed his theory” and began to allege a mechanical problem.   I am guessing that as part of the summary judgment motion, the railroad suggested, and the district court may have suspected, that the plaintiff’s new “theory” was the tainted product of a conference with his lawyer.   Could this “break” have been the “pause that refreshed” the plaintiff’s case?

Certainly most opposing lawyers and, often the court, are highly suspicious that such breaks are the occasion for a “sandpaper job” by the lawyer for the witness.  Undoubtedly that does occur sometimes, and depending on the circumstances, may be highly inappropriate, or even unethical if it leads to subornation of perjury.  But I have some sympathy for the plaintiff’s lawyer in this case.  Having handled these types of cases myself, let me suggest some things that may help place this in perspective.

Railroad workers who are charged to operate this type equipment rarely have much knowledge about the mechanical workings of the equipment itself.  Mechanical failures are often due to circumstances or conditions that are not visible or evident to people lacking the relevant mechanical knowledge.  Thus, when an equipment operator testifies that the equipment causing injury looked “fine” or had “nothing wrong with it”, this merely means there were no visible defects.  It is hardly definitive evidence that the equipment was actually fine.   Nonetheless, hearing such simplistic conclusions or misleading “concessions” coming from the mouth of the plaintiff under expertly crafted cross examination questions, produces a good deal of heartburn for the plaintiff’s lawyer.  Such testimony will most certainly be taken out of context later to suggest that the plaintiff’s lawsuit alleging defect is baseless since he “admits” the equipment was not defective.  Checkmate.  Motion to dismiss !

While the plaintiff’s lawyer can backfill with other evidence, or try to explain away the deposition testimony later, such explanations always lack the simplicity and appeal of the basic assertion that the plaintiff himself “admits” the equipment was not defective!  It can be a deep hole from which to climb.

The temptation for the plaintiff’s lawyer is overwhelming to “coach” the witness to avoid characterizing the equipment as non-defective.  The plaintiff need only be reminded of the simple fact that the plaintiff knows to be true – that despite his repeated attempts, the equipment failed to work as it was supposed to.  The artfully phrased cross exam will make it hard for the plaintiff to explain this simple fact in his deposition response, or to bring in this “theory” as he testifies.  But enough prodding by the plaintiff’s lawyer is bound to help encourage the plaintiff to be more forthcoming in his testimony and to qualify any concession by explaining that while things may have looked normal, they certainly didn’t work that way.

Is such “coaching” an improper distortion of the witness’s truthful testimony?  When the opposing lawyer and the court see such a change in direction after a deposition break, they often suspect the worst.  While such skepticism is understandable, it still remains a quintessential matter for the jury to decide.  The plaintiff lawyer’s advice to the witness, during break, may also be viewed as simply helping to avoid misinterpretation of the witness’ testimony and therefore better assure the opportunity for his honest testimony to be considered in the jury’s search for truth

The “pause that refreshes” may be just as harmless as a cold bottle of Coke on a warm day.

By Michael W. Unger

Mr. Unger, of Unger Law Office in Minneapolis, is a certified civil trial specialist who represents plaintiffs in personal injury, wrongful death and medical malpractice cases.

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