Jury Awards Lincoln Railcar Repairer $9.3 Million After BNSF Crane Accident Left Him With Spine Injuries

Curt Thege joined BNSF Railway in Lincoln, Nebraska, in June 2006 and spent his whole career repairing damaged railcars at the company's Havelock Car Shop. His supervisor described him in testimony as 'top-notch.' On June 11, 2019, Thege and his partner were stripping damaged side sheet panels from a hopper car, working from scissor lifts while an overhead crane held each panel by chains and hooks.

The crane was supposed to take up slack in the chains and stop. Instead the hoist kept rising. With two small sections of the panel still uncut, the sheet swung out at the bottom and struck Thege's scissor lift, knocking it over. He fell to the floor. The court's summary judgment order describes significant lumbar spine injuries that required several surgeries and left him with permanent impairments.

Jeffrey E. Chod of Chod Law filed the case in the District of Nebraska in February 2020 under the Federal Employers' Liability Act, the statute that lets injured railroad workers sue their employer, and represented Thege through trial. Co-workers testified in discovery that the west bay crane at times kept moving after the operator released the control. BNSF had also abolished its designated crane operator jobs, and the carmen who took over the cranes received far less hands-on training. Shortly before trial BNSF admitted that it breached its duty of care and caused the accident.

That left damages as the contest. Thege's treating physicians included a spine surgeon, a pain specialist, a neurologist, a urologist, a pelvic physical therapist and a neuropsychologist, and BNSF's own expert reviewed a diagnosed brain injury that the company disputed. BNSF also argued Thege could have returned to work earlier than he did. After a five-day trial in October 2022 the jury rejected that argument and awarded $9,333,016: $822,412 for lost earnings, $874,500 for future medical care and supplies, and $7,636,104 in general damages for pain, suffering and disability.

BNSF then asked the court to cut the award. Judge John M. Gerrard refused to second-guess the jury on lost earnings, noting it had weighed the competing evidence and that he found Thege credible when he testified he would have kept working if he could. He found the general damages to be 4.5 times the economic losses, which he called reasonable and, based on his own assessment of the evidence, 'even conservative.' He also found nothing to suggest the jury acted from passion or prejudice.

The one change came from Thege's own concession. He agreed that $37,027.04 in Railroad Retirement Board and supplemental sickness benefits should come off the judgment. In an order dated December 15, 2022, the court granted BNSF's motion only to that extent and entered a separate judgment for $9,295,988.96. BNSF did not appeal, and in January 2023 Chod filed a satisfaction of judgment on Thege's behalf.