Left to right: Matthew J. Grossman and Howard A. Spier Rossman, Baumberger, Reboso & Spier in Miami. Courtesy photos.

Howard A Spier and Matthew J. Grossman of Rossman, Baumberger, Reboso & Spier in Miami won a $2.6 million jury verdict for 29-year-old freight train conductor Justin Downing, who suffered unrelenting back pain after crashing into a tractor-trailer at a railroad crossing.

On Nov. 19, 2015, Downing’s 34-car train left Lakeland for Jacksonville but never made it. Minutes after setting off, the tractor-trailer pulled out at a crossing ahead, leaving Downing with a few seconds to yank the emergency brake.

“The emergency brake is the most severe brake a train has,” Spier said. “Once you apply it, all you can do is brace and pray to god you survive.”

Despite its severity, an emergency brake can’t bring a train traveling 29 miles per hour to an immediate halt.

“Seconds before impact, our client gets off the chair, gets down low and he braces to avoid objects that could come through the windshield and kill him in his chair,” Spier said.

The other driver, Jose M. Santiago-Ramos, got his tractor over the tracks in time to escape injury. The train instead plowed into his trailer, owned by trucking company Hansen & Adkins Auto Transport Inc. and piled high with vehicles.

Downing sued the truck company and its driver in March 2016, alleging that if Santiago-Ramos had been looking at the road rather than his phone, the crash would never have happened.

“When you approach a railroad crossing, you’re supposed to stop, look and listen, and he didn’t do so,” Spier said.


Railway. Photo: royalty free.

Click here to read the full complaint 


The defendants denied liability and relied on a Jacksonville orthopedic surgeon, who testified that Downing had problems with his back before the accident — thanks to a prior car crash and early signs of scoliosis, a back condition which causes the spine to curve.

“According to that expert, the scoliosis, combined with a motor vehicle accident contributed to his issues, and the train-truck collision produced nothing more than a sprain from which he should have recovered within six weeks,” Spier said.

Downing had also been lifting plenty of weights before the accident, in preparation for a bodybuilding competition. According to the defense, that had compromised his ability to heal.

Counsel to Santiago-Ramos, Ellis T. Fernandez III of Fernandez Trial Lawyers in Jacksonville, did not respond to requests for comment before deadline.

Downing wounded his head and sprained his lower back in the accident, according to Spier, who admitted that his initial injuries weren’t major.

“$2 million was not awarded for a back sprain,” Spier said. “Otherwise, we’d all have back sprains, wouldn’t we?”

 

All in the mind

Chiropractic back adjustment. Photo: Albina Glisic/Shutterstock.

As Downing wasn’t severely injured in the crash, Spier and Grossman had to show the jury how disabling and problematic pain can be.

“One of the things the defense likes to say is that pain is subjective,” Spier said. “You can’t measure it, you can’t see it, you can’t test it, you can’t X-ray it. So therefore it’s in the mind of the plaintiff. That may be true, but treating physicians have to make decisions to give injections, medications, physical therapy and spinal cord stimulators based upon their examinations and a patient’s complaints.”

The trick, according to Spier, was ensuring “the opinions and insights of the treating physician came across to the jury as legitimate, as compelling and as valid.”

Much of the case hinged on what happened after the accident, as Downing’s sprain triggered a string of hospital visits in an attempt to manage chronic pain — until one pain management device almost killed him.

Downing tried medications, injections and nerve-numbing treatments, then eventually opted for something more drastic — a spinal cord stimulator, surgically implanted into his spine. The device comes with a battery, which sends electrical pulses to block pain signals.

“It’s very gentle,” Spier said. “It’s supposed to confuse the brain, which picks up on this calming feeling and ignores the pain from the back.”

But Downing’s surgery didn’t go well. Before the device was even switched on, he developed sepsis and ended up in the intensive care unit, organs failing.

“Within 10 days of being implanted, he is surgically back on the table and having the device removed to save his life,” Spier said.

The infection eventually cleared, and Downing is scheduled to have a new device implanted. According to Spier, Downing has since left CSX, having failed a functional capacities test, which determined he wasn’t fit for the moderate to heavy work required of a train conductor.

 

‘A hot knife through butter’

CSX train. Photo: Photo: Jonathan Weiss/Shutterstock.com.

Another problem for Spier and Grossman was ensuring the jury understood how the crash impacted Downing as he braced inside the train. Sure, there was dashcam footage of the crash from inside, but the train didn’t derail, lose cars or turn over.

According to Spier, the defense described the collision as being “like a hot knife through butter,” suggesting that being inside a steel train cab as it sliced through a trailer wasn’t the worst place to be.

“We had to convince the jury that there were forces inside that cab which you don’t see on the video,” Spier said.

To demonstrate, the pair brought impact analysis experts to the stand, equipped with simple equations to explain how much force Downing would have felt during impact.


Click here to read the defense’s answer to complaint


While the defense argued that Downing and his employer, CSX Transportation, could have done more to curb the impact of the crash, Spier and Grossman contended that the train ran correctly and Downing did everything he should have. And they had an event recorder to prove it.

“These recorders, like a little black box in an airplane, capture data,” Spier said. “And the data will tell you the time, the date, the speed, whether the brakes were applied, whether the horn was blowing.”

Luckily for Spier and Grossman, they began trial bolstered by prior summary judgments. Before the jury heard the case, a judge had already imposed liability on the truck company, Hansen & Adkins, and batted away the idea that train company CSX was partly at fault.

Under Florida’s Fabre doctrine, defendants can add parties that aren’t being sued to the verdict form, potentially limiting their damages.

A Hillsborough jury found Santiago-Ramos negligent, awarding $244,00 in lost earnings, $325,000 in pain and suffering damages, and more than $2 million in past and future medical expenses.

Spier expects the defense to appeal the decision as it has already filed a motion for a new trial.

 


Read the full jury verdict:

 

 

Case: Justin J. Downing v. Hansen & Adkins Auto Transport, Inc; Hansen Auto Transport, Inc. and Jose M. Santiago-Ramos

Case No.: 2016-CA-002243

Description: Train/truck collision

Filing date: Mar. 8, 2016

Verdict date: Nov. 9, 2018

Judge: Hillsborough County Court Judge Cheryl Thomas

Plaintiffs attorneys: Howard A. Spier and Matthew J. Grossman, Rossman, Baumberger, Reboso & Spier in Miami

Defense attorneys: Ellis T. Fernandez; Fernandez Trial Lawyers in Jacksonville

Verdict amount: $2,576,069

 

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