CVN screenshots of plaintiff attorney Victor Russo, left, and defense attorney Anthony Sonnett, right
Santa Ana, CA - Two trial teams with deep expertise in railway injury cases squared off Wednesday in California state court in a lawsuit filed by a former BNSF conductor who was thrown from a caboose after his train derailed, and the full trial is being webcast and recorded gavel-to-gavel by Courtroom View Network.
An Orange County Superior Court jury heard opening statements in the case filed by plaintiff Javier Lopez, who alleges he suffered wrist and back injuries after the derailment in 2022. BNSF conceded liability for the accident, which was caused by a device left on the tracks meant to prevent runaway trains from running into work sites, but the parties took starkly differing positions on the nature and scope of Lopez’s alleged injuries.
Lopez is represented by Hildebrand McLeod & Nelson, widely recognized as one of the top plaintiff rail injury firms in the country. BNSF is represented by a team lead by Anthony Sonnett, a partner at Lewis Brisbois who serves as chair of the defense powerhouse’s Railroad Practice.
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Attorney Victor Russo of Hildebrand McLeod & Nelson explained to jurors during his opening statement how Lopez, then 52, was manning the rail of a caboose while working the night shift as a conductor. He described how the train jumped the tracks after encountering a “derail device” accidentally left in place.
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.
Russo told jurors that while Lopez left the emergency room diagnosed only with contusions, he would eventually develop pain from wrist and back injuries that would render him entirely unable to work. Russo also suggested Lopez developed hearing problems from the pain medication he received.
While Russo acknowledged Lopez had back issues before the accident, he insisted testimony from treating physicians would show the impact significantly exacerbated those underlying conditions. He didn’t ask for a specific amount of damages during his opening statement, but did state during jury selection that he would seek an unspecified amount in the millions of dollars.
Representing BNSF, Sonnett acknowledged BNSF bore responsibility for leaving the derail device on the tracks but insisted the collision didn’t expose Lopez to impacts that could cause his level of claimed injury.
He explained the train was only moving 7-8 miles-per-hour when it derailed, and that accident reconstruction experts would show the g-forces Lopez experienced were minimal. He also argued Lopez’ current symptoms are more likely caused by his underlying back problems, repeatedly stressing to jurors that the radiological scans he received immediately after the impact showed no acute injuries.
Sonnett also did not mention a specific amount of damages in his opening, but he insisted an award of millions of dollars would be unreasonable and not supported by the evidence.
Sonnett’s opening did include a brief moment of comity between the parties, a rarity during a contentious, adversarial jury trial. Sonnett remarked that he and Russo frequently appear on opposite sides of the courtroom in FELA cases.
“He comes in all the time and sues the railroad. Quite frequently I come in and defend the railroad. So we’re not new to each other. He always comes up with surprises, but I would call us respectful adversaries,” he said.
“Agreed,” a smiling Russo responded.
The trial is taking place before Judge Deborah Servino, and CVN’s on-demand coverage will continue on a rolling next-day basis for the duration of the proceedings.
The case is captioned Javier Lopez v. BNSF, case number 30-2022-01279637-CU-PO-CJC in Orange County Superior Court.
Email David Siegel at dsiegel@cvn.com
