CVN screenshot of plaintiff attorney Victor Russo delivering his closing argument
Santa Ana, CA - A California state court jury awarded roughly $469,000 on Wednesday to a former BNSF conductor who sought millions of dollars in damages after being thrown from his caboose following a train derailment, and the full trial was recorded gavel-to-gavel by Courtroom View Network.
The Orange County jury returned their verdict following a lengthy trial that began in early December and straddled the holiday break. Plaintiff Javier Lopez accused his former employer of responsibility for a range of injuries that he claims left him unable to work, however while BNSF conceded liability for the derailment itself they argued it occurred at too slow a speed to cause any serious injuries.
The trial featured two highly experienced teams of rail injury attorneys. Lopez is represented by Victor Russo of Hildebrand McLeod & Nelson, widely considered one of the top plaintiff railway injury firms in the country, and BNSF is represented by a team lead by Lewis Brisbois’ railroad practice co-chair Anthony Sonnett.
Subscribers to CVN's online trial video library get unlimited on-demand access to the full trial, including all witness testimony and hundreds of other trials featuring many of the top plaintiff and defense attorneys in a wide range of practice areas in California and throughout the United States.
The trial hinged on the derailment accident in 2022, which BNSF admitted occurred because of a braking device meant to stop runaway trains that was accidentally left on the tracks. The train was traveling at about 7-8 miles-per-hour at the time, and while Lopez initially only received a diagnosis of contusions after visiting the emergency room, Russo argued his injuries developed into disabling wrist and back pain in addition to hearing loss supposedly caused by the pain medication he took.
Russo asked the jury to award roughly $2.18 million in economic damages and $7.3 million in non-economic damages, but Sonnett told the panel during his closing argument Lopez’s claimed injuries didn’t warrant any damages despite BNSF’s responsibility for the underlying derailment.
Lopez initially sued BNSF under the Federal Employers Liability Act, or FELA, a federal statute that allows many railway workers to file personal injury claims in state courts.
With liability for the underlying accident stipulated, the trial focused exclusively on causation and the extent of Lopez’s alleged injuries. Russo told CVN he largely based those arguments on testimony from Lopez’s treating physicians, which he said jurors told him after the trial contributed to their eventual verdict.
“The case came down to a battle between the treating doctors and the retained witnesses on the issue of injury causation,” Russo said. “The jurors indicated they felt the treating doctors were giving causation opinions without sufficient foundation simply based on what their patient was telling them.”
Russo explained how presenting Lopez’s supposed hearing loss from his pain medication posed a challenge during the trial. He said Lopez’s tinnitus and hearing loss was more disabling than his other injuries, but it’s admittedly uncommon complication.
“There is medical literature that indicates Celebrex/Celoxib and most NSAID’s can cause such hearing loss. It’s a known but very rare risk,” Russo told CVN. “The defense retained witness testified that the literature does not, in fact, support that opinion sufficiently, and that Mr. Lopez’s hearing loss was due to unrelated prior medical conditions.”
CVN screenshot of defense attorney Anthony Sonnett delivering his closing argument
Russo acknowledged the overall challenges in the case, noting he and the defense gave some consideration to a high/low agreement late in the trial, but the jury reached a verdict without it in place. He also disclosed he never made a settlement demand due to BNSF’s position they could win on causation.
“We knew it was a high-risk case for Mr. Lopez, but felt strongly that he deserved his day in court,” he said.
Russo offered kind words for his opposing counsel Anthony Sonnett, echoing Sonnett's acknowledgment during his opening statement that the two FELA trial veterans are frequent sparring partners who enjoy a healthy mutual respect for each other.
"I think we have a mutual respect for one another but when the bell rings he comes out swinging and so do I," Russo said. "Fortunately, we manage to shake hands when the fight is over and look forward to the next one."
Sonnett did not respond to requests for comment from CVN.
The trial took place before Judge Deborah Servino.
The case is captioned Javier Lopez v. BNSF Railway Company, case number 30-2022-01279637-CU-PO-CJC in Orange County Superior Court.
Email David Siegel at dsiegel@cvn.com
