The nation’s top court will not take up a record-breaking railroad injury case from Cook County. John M. Power and George T. Brugess, partners at Cogan and Power P.C., represented the plaintiff, Michael Parsons who was awarded $22,474,102 million after a work injury at Chicago's 51st St. rail yard.

1. Volume 164, No. 192
Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.
CHICAGOLAWBULLETIN.COM TUESDAY, OCTOBER 2, 2018
®
It’s end of the line for
$21.4M Cook County
railroad-worker case
BY ANDREW MALONEY
Law Bulletin staff writer
The nation’s top court will not
take up a record-breaking railroad
injury case from Cook County.
The U.S. Supreme Court on
Monday declined to hear a rail-
road’s argument that the $21.4 mil-
lion verdict for a conductor whose
heel was sheared off between two
train cars was premised on a mis-
leading jury instruction.
According to the Jury Verdict
Reporter, a product of Law Bulletin
Media, the award is the largest ever
given for a heel injury-related set-
tlement or verdict in Cook County.
A petition for certiorari filed by
the railroad was one of 18 from
Illinois and one of hundreds in
general that the court turned away
Monday to start its new term.
Lawyers for Norfolk Southern
Railway Co. argued the trial judge
potentially confused jurors by
telling them Michael Parsons, the
plaintiff, “shall not be held to have
assumed the risks of his employ-
ment.”
That instruction stems from the
assumption-of-risk doctrine, which
states employees are presumed to
know that certain jobs come with
certain risks. It used to be part of
the Federal Employers Liability Act
— a 110-year-old statute that pro-
vides a cause of action for injured
railroad employees against their
employers rather than common
law. FELA claims require a railroad
worker to prove the injury was at
least partly caused by negligence
on part of the railroad.
But railroads would cite the doc-
trine to argue against recovery of
any kind by their workers.
The law since incorporated a
contributory-negligence setup, al-
lowing juries to attribute some fault
to the plaintiff and reducing the
damages proportionately.
In addition to the assumption-of-
risk instruction, then Cook County
circuit judge Donald J. Suriano told
jurors several times they should
determine how much Parsons was
at fault for his own injury and
reduce the award accordingly.
In November 2015, they deemed
the railroad 100 percent at fault for
causing the injury by moving two
tracks at the 51st Street rail yard
closer together, giving conductors
less clearance to ride on the side of
cars while passing another train.
The jury awarded Parsons
$22,474,102. The award for lost
earnings was lowered by $1 million
in April 2016 after Norfolk South-
ern argued in post-trial proceed-
ings it was excessive.
A 1st District Appellate Court
declined to reduce or overturn the
verdict in August 2017. The Illinois
Supreme Court rejected an appeal
in January.
In a 70-page plea to the nation’s
high court filed after the denial
from Springfield, Norfolk Southern
argued it never asked for the as-
sumption-of-risk instruction and
that it’s common for plaintiff’s
lawyers to seek it out in order to
mislead jurors.
They wrote that “the jury is
likely to equate a no assumption-of-
the-risk instruction with a no-con-
tributory-negligence instruction,”
making them believe a plaintiff
can’t be held liable at all in the case.
They also pointed to state supreme
courts in Utah, Nebraska and Vir-
ginia, which held that giving such
guidance is reversible error.
But Parsons’ lawyers countered
that the vast majority of opinions,
including all the ones from federal
appeals courts, have found that
even if the instruction is given
erroneously, it’s not so problematic
that the decision should be re-
versed.
They also cited the 1st District’s
decision in the case, which noting
there was “nothing to suggest that
[the instruction] caused the jury to
believe that it could not consider
contributory negligence.”
They wrote that, to the extent
there is a split among lower courts,
it’s “no split worthy of this [c]ourt’s
review.” On Monday at least, the
court agreed.
Carter G. Phillips of Sidley
Austin LLP in Washington, D.C., is
counsel of record for the railroad
company. In an e-mail Monday, he
said he was disappointed the court
didn’t take the appeal.
He added that the assumption-
of-risk instruction “had no role in
this case except to mislead the
jury.” He said despite the fact the
federal liability law is one based in
comparative negligence, it made
the railroad seem like it was an
insurer.
“The denial of review will merely
embolden others to follow this
course and eventually the railroads
will convince the [c]ourt that its
intervention is warranted to stop a
practice that everyone recognizes
is improper,” Phillips said.
John M. Power and George T.
Brugess, partners at Cogan and
Power P.C., represented Parsons.
They said in a joint interview Mon-
day that the judge gave the in-
struction because the defense es-
sentially tried to argue Parsons
“assumed the risk” of the job.
“They opened the door, ran right
through it, then complained to us
that we were availing ourselves of
the jury instruction that countered
that when they raised it,” Brugess
said.
Power said the defense had long
odds of getting any case to the high
court, let alone one that turned
more on facts than law.
“They were trying to create a
square peg and put it in a round
hole,” Power said. “They tried to
say this is a conceptual problem
versus a factual problem.”
They both said the railroad’s own
training video instructed conduc-
tors to ride the train cars and that
their client “felt like he was finally
vindicated” Monday after the high
court turned down the appeal. Par-
sons still works for the railroad, his
attorneys said.
“All he wanted to do was to go
back to work, and hopefully this
proves that he was a hard worker
and he just wants to get back to
some sense of normalcy, despite
the fact that for three years after
the trial, they kept blaming this on
him,” Power said.
The case is Norfolk Southern Rail-
way Company v. Michael Parsons,
No. 17-1376.
amaloney@lawbulletinmedia.com
U.S. Supreme Court turns down Norfolk
Southern’s petition on first day of term
George T. Brugess John M. Power
“They opened the door, ran right through it, then
complained to us that we were availing
ourselves of the jury instruction that countered
that when they raised it.”
Serving Chicago’s legal community for 163 years