Schlichter, Bogard & Denton Receives Long-Awaited Justice for Injured Railroad Conductor

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A St. Louis Federal court jury ordered BNSF Railway to pay a former railroad conductor $1.67 Million for on duty spine injuries.

Following a one week trial, a St. Louis Federal court jury on November 8, 2013 finds in favor of plaintiff, Kevin Cowden, and issues a verdict assessing the defendant, BNSF Railway, to pay a former railroad conductor $1.67 million for on-duty spine injuries. Cowden v. BNSF Railway Co., United States District Court for the Eastern District of Missouri, Case No. 4:08-CV-1534.

Court room testimony in the case shows that Conductor Kevin Cowden, of Marshfield, Missouri, sustained neck and low back injuries in January of 2008 when his freight train ran over defective track and “bottomed out” near Golden City in southwest Missouri. The force from the impact was like a “rollercoaster”, throwing him above his seat and striking his spine forcefully when the locomotive shock absorbers recoiled. He was diagnosed with herniated discs in his cervical and lumbar spine. Cowden continued to work as a conductor for a year, despite significant pain, before undergoing surgery to remove a lumbar disc and fusing a vertebra to his sacrum. After a period of healing, a functional capacity test determined that he should be limited to light duty work and not return as a conductor.

Trial documents revealed a post-incident inspection of the track showed a 2 ½ inch dip in one of the rails on the track. Railroad track maintenance records revealed previous problems with the track, due to washouts from flooding, which deteriorated the track surface and wooden crossties. Cowden’s legal team retained a track maintenance expert, Alan Blackwell, who discovered that the track measurements failed to account for bigger dips in the track, under the load of a 200 ton locomotive.

According to legal filings in court documents, BSNF, a Fort Worth, Texas holding of Warren Buffet’s Berkshire Hathaway, denied any responsibility for causing the incident, claiming the track complied with the minimum standards set by the FRA. It also denied that any injury was sustained from incident but, instead, Cowden suffered from degenerative disc disease and surgery was not needed. BNSF claimed that, even if there was an injury, it occurred off the job, the next day, when Cowden rolled over in bed. BNSF also denied that Cowden was disabled from returning to work.

According to Cowden’s attorney, Nelson G. Wolff of the firm Schlicher Bogard & Denton, it is often said that ‘justice delayed is justice denied.’ In this case, almost six years passed from the date of injury until trial. Kevin was an outstanding conductor for over 10 years and a decorated Army Veteran of Desert Storm. He was injured doing the railroad’s work on its equipment and was without any fault. Because he was unable to safely return to work as a conductor due to the spine injuries, a jury ordered full compensation.”    

The case was filed under the Federal Employers' Liability Act (FELA), which is the exclusive remedy for railroad workers who suffer on-duty injuries. They are not eligible for workers' compensation benefits. Senior United States District Judge E. Richard Webber presided over the trial. Cowden v. BNSF Railway, United States District Court for the Eastern District of Missouri, No. 4:08-cv-1534. Beth Wilkins Flieger, also of Schlichter Bogard Denton, served as Kevin’s co-counsel. BNSF was represented by Tom Jones and Harlan Harla of the Thompson Coburn law firm.

For further information, please contact Nelson G. Wolff at 314-621-6115.

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