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St. Louis man wins verdict against employer after passing out twice at rail yard

Plaintiff claimed heat exhaustion, prank were causes

A former St. Louis railway switchman won a verdict for injuries he claimed he suffered when he passed out twice at work.

Plaintiff Michael Patton claimed heat exhaustion and illness brought on the first attack in August 2001 and his reaction to a prank by co-workers in October 2002 brought on the second.

Attorneys for defendant BNSF Railway Co. argued that factors unrelated to Patton’s work caused his loss of consciousness on both occasions.

The jury awarded $25,000 for the first incident and $781,540 for the second. The railway paid the award for the first incident, minus taxes and “wage continuation” paid to Patton after the first incident, defense attorney William Brasher said in a phone interview.

But the defense will appeal the second award on the issue of whether employees pulled the prank in the course of their employment, Brasher said. To recover damages for railroad workers under the Federal Employers’ Liability Act, plaintiffs have to show a railroad company was at fault or negligent.

There was testimony that other pranks prior to the one involving Patton had occurred at the work place, plaintiff’s attorney Phillip Cervantes said.

According to an account from plaintiff’s attorneys, Patton passed out the first time after being told to report to work even though he had had a fever and chills the night before and had called in to take a sick day. He lost consciousness about an hour and a half after starting his shift on a day when the temperature was over 90 degrees. He was diagnosed with heat exhaustion, a separated shoulder and neck pain at St. Joseph Health Center.

After surgery on his left shoulder, Patton returned to work the following June. He worked until Oct. 8, 2002. On that day, he worked away from the rail yard where he had parked his van. When he returned, he found his co-workers had filled his van with trash and debris as a prank. There was evidence that BNSF supervisors, including the yardmaster, knew about and participated in the prank, according to the plaintiffs’ attorneys’ description. Patton was upset when he saw the van, lost consciousness, and fell, re-injuring his neck, hurting his head and cutting his left eye. He was diagnosed with a seizure disorder after the incident and never returned to work.

There was no doubt that an inappropriate prank took place, defense attorney Brasher said.

“It shouldn’t have been done,” Brasher said.

But whether the employees did it in the course of their employment and for their employer is a separate issue, Brasher said.

Patton’s medical records referred to a prior skull fracture that caused brain damage, a prior history of seizures and a claim that exposure to lead caused the seizures, according to an Aug. 26 court filing signed by Brasher. Defense experts also opined that withdrawal from anti-anxiety medications caused or contributed to Patton’s seizures.

Defense experts’ hypothesis was that Patton could have had a seizure because there were some references to the need to decrease some of the medications Patton was taking, Cervantes said.

“Their own experts admit there was no documented [medical] evidence of a seizure prior to these occurrences,” Cervantes said.

Statements Patton made about prior seizures while he was incarcerated after probation violations were not admitted into evidence, Brasher said. Nor was the jury told that Patton was serving time in a state penitentiary at the time of the trial, Brasher said, though evidence of Patton’s drug-related convictions was allowed.

“I think it was harmful to the defense, both those issues,” Brasher said.

Patton’s status at the time of trial was irrelevant, Cervantes said.

“It was just another reason for them to make him look bad,” Cervantes said. “It wasn’t a fact that affected the issue of him being injured at work.”

$806,496 verdict

Federal Employers’ Liability Act

Venue: St. Louis Circuit Court

Case number/Date: 22042-07474/Sept. 6, 2013

Judge: Rex Burlison

Plaintiff’s Experts: Patti Nemeth, St. Louis (treating physician); Joseph Hanaway, St. Louis (treating physician); Leroy Grossman, St. Louis (economics)

Defendant’s Experts: Bernard Randolph, St. Louis (physical medicine and rehabilitation); Karen Pentella, St. Louis (neurology)

Caption: Michael Patton v. BNSF Railway Co.

Plaintiff’s Attorneys: Leonard P. Cervantes and Phillip A. Cervantes, Cervantes & Associates, St. Louis

Defendant’s Attorneys: William Brasher and Thomas McDermott, Boyle Brasher, St. Louis