$5 Million FELA Jury Verdict for Norfolk Southern Conductor Struck by Passing Train in Memphis Rail Corridor

Thomas David Jordan had worked for Norfolk Southern Railway for more than thirty years. On the evening of November 13, 2002, he was the conductor on a train running from Sheffield, Alabama to Memphis, Tennessee. The train pulled into a stretch of track in South Memphis known as 'Broadway', six parallel tracks owned by several different railroads, packed so tightly together that a locomotive engineer later testified he could reach out his cab window and touch a train on the neighboring line. Around 7:40 p.m., while Jordan was on the ground uncoupling his train's locomotives in the sliver of space between the Norfolk Southern track and an adjacent Burlington Northern Santa Fe track, a passing BNSF train struck him.

The injuries were catastrophic. Jordan suffered a severe blow to the back of his head that left him unconscious, with no memory of the accident, the next thing he recalled was waking in a trauma center roughly eleven days later. He had fractures at three levels of his spine, repaired with a bone graft from his hip plus a metal rod and screws. His left tibia and fibula were broken, his left shoulder blade was fractured, and he sustained a hip fracture, a lacerated spleen, a collapsed lung, and double vision from abnormal eye alignment. After leaving the hospital he depended on his wife to dress and bathe him, and his orthopedic surgeon testified he had developed traumatic arthritis and would likely need a knee replacement.

Jordan sued both railroads in the Circuit Court of Shelby County in July 2003, a Federal Employers' Liability Act claim against his employer, Norfolk Southern, and a common-law negligence claim against BNSF. Christopher Keith, the Birmingham trial lawyer who had co-founded Wettermark Keith that same year, was among the counsel of record who carried the case for Jordan. The theory was straightforward: Norfolk Southern required conductors to work on the ground at Broadway even though the clearance between tracks, as little as twelve feet five inches from centerline to centerline, left no safe place to stand. One railroad employee testified it was impossible to do a conductor's job there without fouling an adjacent track; another described squatting under a rail car to avoid a train that 'eased up' on him without warning. According to the firm, Norfolk Southern's best offer before trial was $300,000.

Trial began on January 17, 2006, and the jury heard from twenty-three witnesses over several weeks. Jordan's economist put his economic losses at $827,859, including future medical costs, on the assumption he could never return to railroad work. Norfolk Southern argued its track spacing complied with a Tennessee statute and twice moved for a directed verdict; the trial court denied both motions.

On February 9, 2006, the jury returned its verdict: Norfolk Southern was negligent and 100 percent at fault, with zero fault assigned to Jordan or to BNSF, and awarded $5 million in damages. Because Jordan's complaint had capped his demand at $4 million, Judge James F. Russell entered judgment against Norfolk Southern in that amount in accordance with the ad damnum clause.

Norfolk Southern appealed on nearly every front, the directed-verdict rulings, the jury instructions on causation, and the size of the award, which it called excessive. In a January 15, 2009 opinion, the Tennessee Court of Appeals rejected each argument and affirmed the judgment entered on the jury verdict in full, observing that the ratio of non-economic damages to Jordan's proven economic losses was well within the range courts had upheld in FELA cases. The only piece of the case the appellate court reversed was a dismissal of BNSF's indemnity cross-claim, a contract dispute between the two railroads that had no effect on Jordan's recovery.