Facts

Plaintiff Perry Mack Jr., 52, was working as a hostler/groundman/crane operator at Union Pacific Railroad's Intermodal facility in Long Beach when he was injured on March 1, 2011. His supervisor instructed Mack to operate one of the company's "Cone" vehicles, which permits the worker to drive along the tracks to access the stacked containers and lock them together with intermediate bulk containers.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Union Pacific had never trained him on the Cone vehicle and that he informed his boss. Plaintiff claimed his supervisor told him not to worry about it. Plaintiff claimed that, without getting out of the van, his supervisor gave him nearly a minute of verbal instruction on how to control the vehicle, and sent plaintiff off to work.

As plaintiff was driving the Cone vehicle over the rails at the AB break, a break in the railroad tracks, the machine stopped abruptly throwing plaintiff to the deck. Plaintiff argued that vehicle plaintiff was operating should have been able to drive without difficulty through this AB break area, which is an asphalt paved crossing area where vehicles can drive over the railroad tracks, but it abruptly stopped due either to some defect in the vehicle or perhaps operator error due to his lack of training.

Plaintiff claimed the railroad violated numerous Occupational Safety and Health Administration regulations that mandate training, and that negligent maintenance of the vehicle also contributed to the incident.

Plaintiff claimed that after his physician ordered additional restrictions to his work duties, Union Pacific would not accommodate the restrictions and plaintiff went on leave from work in March 2012. Six months later, the railroad terminated his employment due to a provision in the Intermodal Container Transfer Facility agreement. His union successfully got him reinstated and then the railroad fired him again for alleged failure to turn in updated medical information. Plaintiff claimed he refused to work with Union Pacific's retained vocational rehabilitation counselor, Amy Koelner, because he didn't trust the company after they had terminated his employment.

DEFENDANT'S CONTENTIONS:
On the first day of trial, the railroad admitted negligence so the trial was limited to a damages presentation.

Settlement Discussions

Plaintiff offered to settle for the policy limit of $1 million. The railroad offered $150,000 prior to trial and $350,000 during trial.

Specials in Evidence

$60,000 $164,521 $549,742

Injuries

Mack missed three months of work, then returned to restricted duty, which he performed for nine months until his treating doctor imposed an additional restriction of no prolonged sitting, due to Mack's allegedly worsening condition. A positive electromyography, or EMG, test indicated nerve damage, but no one recommended spinal surgery.

Result

Plaintiff's verdict for $1,319,263. The jury awarded past wage loss of $164,521, and future lost earning capacity to age 64 in the sum of $549,742. These were the numbers proposed by plaintiff's economist. The jury also awarded plaintiff $175,000 for past, and $430,000 for future, general damages.

Other Information

EXPERT TESTIMONY: Plaintiff's treating doctor and plaintiff's two medical experts opined that the incident permanently aggravated pre-existing, asymptomatic degenerative disc disease in the low back. The defense doctor, Robert Wilson, testified that the aggravation would have lasted three months and then Mack would have returned to his baseline.

Deliberation

four hours

Length

10 days