Dan Mohan of Mohan Groble Scolaro represented BNSF in the first ever Federal Railroad Safety Act (FRSA) Whistle Blower case tried before a jury in Chicago, the case of Glen Armstrong v. BNSF.  On September 21, 2016, the twelve-person jury in the U.S. District Court for the Northern District of Illinois unanimously rendered a verdict of no liability.   In contrast, recent jury verdicts in FRSA cases across the country have resulted in verdicts over $1 million, punitive damages and payment of the plaintiff’s attorney fees.

The Plaintiff, Glen Armstrong, tried the case on two theories: retaliation for filing an injury report and delay of medical treatment.  However, Judge Robert Blakey directed a verdict against Armstrong on the delay of medical treatment claim on the basis that he failed to rebut the defense’s medical expert’s testimony that the delay did not cause a different outcome in his treatment and recovery.

The case involved an alleged attack by Armstrong’s supervisor in a Chicago Union Station office. Armstrong claimed that his supervisor, a Trainmaster, crushed his knee and ankle in a door during the attack.  Armstrong claimed that BNSF’s Terminal Superintendent threatened him with retaliation if he filed an injury report, which initiated a chain of retaliatory events that ultimately resulted in Armstrong’s termination.

Following Armstrong’s report of an injury to company officers, he did not receive medical treatment for several hours, despite asking to be taken to a doctor.  Not long after this incident, a video showing portions of the incident was recovered.   During the months following, Armstrong underwent surgeries to both his knee and his ankle.  Armed with video evidence, BNSF conducted a disciplinary hearing pursuant to the collective bargaining agreement and terminated Armstrong for insubordination, dishonesty and misrepresentation. 

BNSF’s defense was that the attack never happened and that Armstrong invented this claim after he was removed from service for being insubordinate to his Trainmaster in order to avoid discipline.  BNSF also argued that Armstrong would have been dismissed, even if he had never filed a personal injury report, based on his insubordination and dishonesty regarding the alleged attack.  Although there were no third party witnesses to the alleged attack and the video only showed a small area inside the office, the defense was able to argue to the jury that it was physically impossible for the attack to have occurred.

The defense demonstrated that given the timing, Armstrong’s behavior as recorded on the video, and the partial images of the Trainmaster’s positioning, the attack could not happen as claimed.  For instance, Armstrong delayed reporting the alleged attack to anyone for almost an hour, despite interacting with several co-workers during that time, and he demonstrated no signs of an injury.

Cross examination of Armstrong’s three treating doctors, who opined on direct examination that his injuries and need for surgeries were consistent with the door-slamming attack, revealed that Armstrong had long-standing degenerative conditions in both his knee and ankle.  The defense orthopedic expert testified that Armstrong’s knee and ankle issues were pre-existing chronic arthritis and not acute or traumatic in origin.

Plaintiff’s attorneys claimed that alleged “missing” evidence proved that the attack happened as Armstrong claimed and that BNSF had demonstrated its retaliatory bias by withholding such evidence from Armstrong’s disciplinary hearing.  This missing evidence included an alleged “re-enactment” photograph of the Trainmaster holding the door at the scene and three confidential witness statements provided to BNSF’s Human Resources Department.  They claimed that the photograph did not depict a re-enactment and was irrelevant to a fair and impartial hearing as defined by the collective bargaining agreement.

The trial lasted seven days, and fourteen witnesses were called, including twelve by Plaintiff.  The jury returned a complete defense verdict in less than two hours. This was the second trial of this case, as the first trial ended with a hung jury (10-2 for the Plaintiff).  At the second trial, the defense attorneys narrowly focused on the implausibility of Armstrong’s claims, his inconsistent testimony and other contradictory circumstantial evidence.

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