Defense Verdict for Norfolk Southern Affirmed in Federal Employers’ Liability Act Lawsuit

June 2025 • Source: Gallagher Sharp LLP

Partner, Joe Santoro, and the Appellate team, Partner Richard Rezie and Associate Phil Kelly, obtained a decision from the 11th District Court of Appeals upholding the defense verdict for Norfolk Southern rendered by a jury in a FELA case on March 15, 2024.  Plaintiff Drew Herman alleged that he was struck by a backhoe due to the negligence of the operator. Norfolk Southern contended that the accident was caused by the Plaintiff’s negligence in entering the backhoe’s swing radius without communicating with the operator.  Plaintiff’s counsel asked the jury to award his client over $14 million in compensatory damages. 

The jury found that Norfolk Southern was not negligent in any respect leading to the defense verdict.  On appeal, Plaintiff argued that a new trial was necessary due to the trial court’s jury instructions on negligence, assumption of the risk, and contributory negligence. With respect to the instructions on negligence and assumption of the risk, the appellate court held that Plaintiff failed to properly preserve his objections in the record and failed to invoke plain error review. As a result, the appellate court held in a 3-0 decision that Herman forfeited his right to plain error review and, even if he had not done so, the instructions did not constitute plain error. Finally, with respect to the other instructions at issue, the court held that the instructions were correct statements of the law and did not mislead the jury. 

The court of appeals decision can be found at https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2025/2025-Ohio-1498.pdf

Defense Triumph in Philadelphia: Overcoming Bias in Truck Accident Case

June 2025 • Source: Zarwin Baum

On June 2, 2025, following a three-day trial, Zarwin Baum Partner Joseph M. Toddy, Esq., with the assistance of his trial paralegal, Marina Abi Rached, obtained a defense victory in the Philadelphia Court of Common Pleas representing a national trucking company and their employee involved in a “trucking vs. motor vehicle” accident. The case arose from an accident at the intersection of Bridge Street and Torresdale Avenue. While stopped at a light, the truck operated by an employee of our client is alleged to have reversed into Plaintiff’s vehicle. According to Plaintiff’s claims the accident caused severe injuries, including herniations to five discs in her neck, ongoing headaches, and limited movement to the left shoulder and lower back.

Despite Plaintiff’s allegations, Mr. Toddy was able to persuade the jury that the injuries claimed by Plaintiff were due to pre-existing degenerative disc disease and not from the impact from the truck. Truck accident cases can be extremely difficult to defend because so many people and drivers have negative opinions or feelings about trucks on our roadways. Mr. Toddy was able to overcome this prejudice and prove that the Plaintiff was overreaching with her claims and simply trying to take advantage of the accident.

Dawn A. Moore and Christine Wood Obtain Final Summary Judgment in Premises Liability Case

May 2025 • Source: Pappas Grubbs Price

Dawn Moore and Christine Wood were successful in getting final dismissal via summary judgment for an apartment complex owner in a premises liability case filed in Brazoria County district court.  Elderly female plaintiff claimed she fell as a result of a defective curve on the complex grounds.  She alleged the fall resulted in severe injuries, including a torn muscle in her shoulder that required surgical intervention.  Plaintiff was seeking damages for medical expenses, both past and future, disfigurement in connection with the surgical scarring, impairment due to the loss of movement in her arm, pain suffering, and mental anguish.

Ms. Moore and Ms. Wood argued to the court that after more than two years of litigation, Plaintiff failed to develop evidence in support of any of the elements of her cause of action.  Moreover, dismissal was appropriate given the testimony secured during direct examination of the lack of notice or constructive notice by the apartment complex of the presence of an unreasonably dangerous condition.  The court granted Defendant’s motion in all respects.

Rideshare Driver Prevails in Major Injury Lawsuit: Defense Deflates $1.9M Medical Cost Projection at Trial

May 2025 • Source: Zarwin Baum

Zarwin Baum’s client, a rideshare driver faced with a bodily injury claim from a passenger arising from a motor vehicle accident and faced with a Future Medical Cost Projection of more than $1,900,000, had a successful outcome at trial in the Philadelphia Court of Common Pleas in front of Judge John A. Padova, with top-notch representation from Shareholder, Frank Love.

The Plaintiff passenger alleged that she was injured in a motor vehicle accident where the vehicle she was riding in rear ended the vehicle in front of it, allegedly jerking the Plaintiff’s body and causing permanent injury to her neck.  Plaintiff had a course of chiropractic treatment with physical therapy and proceeded on a course of injections and radiofrequency ablations.

Plaintiff was 19 at the time of the accident and 22 at the time of trial.  At trial, Plaintiff’s medical expert and cost projection expert testified that Plaintiff would need a litany of future medical treatment including physical therapy, epidural steroid injections, repeat ablations and surgical intervention.  The Medical Cost Projection report set her life expectancy at an additional 59 years; hence the nearly $2,000,000 claim for future medical costs.

At trial, Frank admitted negligence but not all causation of alleged injuries, so the case basically came down to an assessment of damages trial.  Frank cross-examined the Plaintiff with a photograph of the vehicle from after the accident, which showed very minimal property damage.  Plaintiff also delayed seeking medical attention, until she hired her lawyers.  She had attended one medical visit in the preceding 18 months before trial, when she saw her treating doctor/expert trial witness for a repeat ablation.  Frank also pointed out that the one visit occurred six months after the lawsuit was instituted.  She claimed to lose her job, due to her injuries from the accident but cross examination using her deposition testimony disproved her claim.

Frank also successfully overcame some credibility issues with the defense medical expert, who had some medical malpractice issues 30 plus years ago by pointing out that the expert had been accepted by the Philadelphia Court of Common Pleas, as well as many other courts, many times.  The expert had also never been disciplined in any way by any medical board, had never lost hospital privileges and never been denied medical malpractice insurance.  Frank argued to the jury that Plaintiff did not challenge any of the expert’s medical opinions in the case, including the testimony about why Plaintiff’s expert’s treatment and opinions were not medically supported.

Frank elicited testimony from Plaintiff’s medical expert that he had only seen her on five total occasions and despite Plaintiff’s repeated arguments that her expert was more credible than the defense expert because he was Plaintiff’s “treating doctor”. The “treating doctor” had not even spoken to Plaintiff but once in more than 18 months before his trial testimony and despite learning that she had not had any other treatment but the one visit to his office, he neglected to revise his opinions in any way.  Similarly, Frank elicited testimony from the Medical Cost Projection expert, a registered nurse, that she had no information about Plaintiff’s current medical condition and despite being a nurse, was not concerned with obtaining more information about the Plaintiff, or even speaking with her, before testifying that she required $2,000,000 in future medical costs.

After deliberating for only approximately two hours, the jury fully agreed and awarded the Plaintiff $10,622.67 in total damages.  They awarded Plaintiff a little over $7,000 for future medical costs and $0 for future pain and suffering.  The jury award indicated that the jury compensated Plaintiff for her pain and suffering for this very minor accident and was not at all convinced by Plaintiff’s case and her experts.  Given the admission of liability, the jury verdict basically amounted to a defense verdict.