$957,750 Judgment for BNSF Locomotive Engineer Struck by Contractor Van at Wyoming Coal Mine

On October 6, 2016, Allen Buechler, a locomotive engineer for BNSF Railway, rode with other crew members from BNSF's Gillette depot to the North Antelope Mines in northeastern Wyoming. The van that carried them was run by Professional Transport, Inc., a contractor that was acting as BNSF's agent. At the mine the crew got out to wait for their train. Buechler stood behind the van. The driver, Robert Bicknese, put the van in reverse, backed into him and knocked him down.

Buechler suffered herniated disks that limited his mobility and left him with continuing pain, and he had not returned to work by the time of trial. He sued BNSF in the District of Wyoming (No. 2:17-cv-00131) under the Federal Employers' Liability Act, the federal law that lets injured railroad workers recover from their employers when the railroad's negligence played any part in the injury. His lawyers were James E. Fitzgerald and Michael James Fitzgerald of Fitzgerald Law Offices in Cheyenne, with Randal W. LeNeave of Hunegs, LeNeave & Kvas and Richard L. Carlson of Wayzata, Minnesota.

The case was tried to an eight-person jury in Casper before Judge Scott Skavdahl from August 27 through August 31, 2018. BNSF admitted in its opening statement that the van driver had been negligent and that the railroad was responsible for any damages that negligence caused. The fight was over how the blame should be divided. BNSF argued that Buechler had not kept a proper lookout and should not have gotten out of the vehicle. Its own corporate representative, a senior trainmaster, agreed on cross-examination that BNSF, through the van driver, bore most of the responsibility.

The jury found both sides negligent. It assigned 75 percent of the fault to BNSF and 25 percent to Buechler, and it set his total damages at $1,277,000. Under the FELA a worker's own fault reduces the award rather than barring it, so on September 5, 2018, the court entered judgment for Buechler in the reduced amount of $957,750.

BNSF moved for a new trial. It argued that the court should not have let the trainmaster's testimony into evidence, that the jury had not been told clearly enough how to separate the effects of pre-existing conditions from the effects of the accident, and that the verdict form lacked separate questions on pre-existing conditions and failure to mitigate. On October 26, 2018, Judge Skavdahl denied the motion. He found the instructions and the form adequate and said nothing suggested the jury had failed to follow them, and he called the trainmaster's answer an honest one that BNSF now regretted.

BNSF filed a notice of appeal to the Tenth Circuit three days later. In November 2018 the parties stipulated to dismiss the appeal, and the Tenth Circuit granted the dismissal with each side bearing its own costs. On November 30, 2018, Buechler's lawyers filed a satisfaction of the judgment in the district court.