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A Virginia jury has hit Norfolk Southern Railway Co. with what could be the largest ever verdict for a mild traumatic brain injury, ordering the railroad to pay nearly $46 million to a 33-year-old man who was injured when a Norfolk Southern train derailed. The jury also awarded prejudgment interest dating back to the day of the accident, bringing the total judgment to over $60 million. On May 2, 1997, plaintiff Donald French was sitting in his office at a Gainesville, Va., gas station when a Norfolk Southern train derailed. A railroad car fully loaded with Ford pick-up trucks turned over and skidded into French’s building, said plaintiff’s attorney Francis P. Hajek of Virginia Beach, Va.’s Wilson, Hajek & Shapiro. A LOUD BOOM He heard a loud boom, then saw a car coming through the wall, Hajek said. He was crushed by the rubble, sustaining an open fracture of the left femur with the bone sticking through his flesh. French also suffered a closed head injury, the lawyer said. French did not lose consciousness, said plaintiffs’ counsel Stephen M. Smith of Hampton, Va.’s Joseph Smith Ltd. As a result, he said, medical personnel initially were so concerned about the orthopedic injuries that they overlooked the brain injury. But significant brain damage became more noticeable over time, he said. Before the accident, French managed the gas station, supervising 30 employees and was on the way to a $70,000-a-year job as a regional manager for a gas station chain, Smith said. After the accident, he couldn’t even operate a cash register. French sued Norfolk, charging that negligence by railroad employees caused the derailment and his subsequent injuries. The accident happened because of a chain of mistakes by Norfolk Southern employees, Hajek asserted. One crew had left a control switch open, sending cars to a side track rather than the main line. The switch derailed the next train coming from the opposite direction, he said, sending three engines and more than 30 cars off the track. French v. Norfolk Southern Railway Co., 48914 (Cir. Ct., Prince William Co., Va.). On the eve of trial, Norfolk Southern admitted liability, but did not admit that the accident had caused a disabling brain injury to French. “We admitted liability right from the beginning for the derailment,” said defense attorney Aubrey R. Bowles III of Richmond, Va.’s Bowles & Bowles. “But we contested the extent of his injuries.” Mild traumatic brain injuries are difficult to prove, said Mr. Smith. “It’s the most overlooked form of injury in the United States today.” The changes in people with these types of injuries are more subtle than those with substantial brain damage. French, he said, “was a 33-year-old with the emotions of a six- or seven-year-old.” Smith, who handled this portion of the plaintiff’s case, focused on what French did before the accident and what his limitations were afterward. “He had scored 1,300 on his college boards. He lived for stress, it was just another challenge to him.” After the accident, he couldn’t handle stress at all, Smith said. A videotape of French taken by the railroad to prove the defense point that the plaintiff was minimally injured may have backfired, Hajek said. The edited tape showed the plaintiff bowling, an activity advised by his physician to decrease his social isolation, he said. But the plaintiff’s team acquired and played a segment not shown by the defense. In this segment, as French finished bowling, he sat down and laid his head on the table, “showing the effect even simple things had on him,” Hajek said. On Oct. 12, a Manassas, Va., jury awarded French $45.93 million. The verdict was the largest-ever personal injury award in Virginia history, said Smith. Prior to trial, the railroad had offered $175,000 to settle; this was raised to $1 million during trial, said Smith. “The verdict was excessive and contrary to law,” said Bowles. The defendant’s post-trial motions to set aside or reduce the award will be heard Nov. 22.

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