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NORFOLK and WESTERN RAILWAY Col\1PANY, RONALD L. BOWLES

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NORFOLK and WESTERN RAILWAY Col\1PANY, RONALD L. BOWLES RECORD NO. 000069 -; . NORFOLK AND WESTERN RAILWAY COl\1PANY, Appellant, v. RONALD L. BOWLES, Appellee. JOINT APPENDIX James F. Johnson John A. Gibney, Jr. John D. Eure SHUFORD, RUBIN & GIBNEY Robert S. Ballou Post Office Box 675 JOHNSON, AYERS & MATTHEWS Richmond, Virginia 23218 302 Second Street, S.W. (804) 648-4442 Post Office Box 2200 Roanoke, Virginia 24009-2200 Raphael E. Ferris (540) 982-3666 RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN, P.C. Counsel for Appellant Post Office Box 1791 Roanoke, Virginia 24008-1791 (540) 344-3233 Gregory M. Tobin PRATT & TOBIN, P.C. Post Office Box 179 East Alton, Illinois 62024 Counsel for Appellee LANTAGNE LEGAL PRINTING 801 East Main Street Suite 1~0 ~ichmo~d , Virginia 23219 (804) 644-0477 A Division of Lantagne Duphcatrn:: ServiCes Table of Contents Page Number Motion for Judgment filed 7/21/97 . 1 Grounds of Defense filed 8/5/97 . 4 Defendant's Fourth Motion in Limine filed 2/5/99 . 5-A Excerpts from Transcripts of Proceedings before the Honorable Robert P. Doherty, Jr. on the following dates: 3/4/99 .............................................. 5-E 3/9/99 . 6 Testimony of James Simmons . 56 Testimony of William Dowdy . 79 Testimony of Michael Shinnick, Ph.D ...................... 100 Testimony of Robert Widmeyer . 162 3/10/99 . 167 Testimony of Michael Shinnick, Ph.D ...................... 169 Testimony of Ronald Bowles . 219 3/11/99 ............................................. 296 Testimony of Gary Ramsey ............................ 302 Testimony of Michael Solesbee . 328 Motion to Set Aside the Verdict filed 4/23/99 .................... 337 Order entered 5/5/99 ..................................... 340 Letter from the Honorable Robert P. Doherty, Jr. dated 9/9/99 . 344 Final Order entered 10/8/99 . 351 EXHIBITS Exhibit A to Brief in Support of Defendant's Motion to Set Aside Verdict - Jury Report - filed 3/9/99 ................ 354 Plaintiff's Exhibit #2 - Photo - filed 3/9/99 .................. 364 Court Exhibit #1 - Jury List - filed 3/9/99 ................... 365 ASSIGNMENTS OF ERROR .............................. 369 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF ROANOKE RONALD L. .BOWLES I ) ) Plaintiff, ) ) vs. ) Civil Action No. Q_)_C\ \- 8~~ ) NORFOLK AND WESTERN RAILWAY ) COMPANY, a Corporation, ) ) Defendant. ) ) PLEASE SERVE SUMMONS ON: ) ) Mr. Wiley F. Mitchell, Jr. ) Registered Agent ) ~-Norfolk Southern Corporation ) .~Three. Commercial Place ) ~ Norfolk, VA 23510-2191 ) ~ MOTION POR JUDGMENT COMES NOW the Plaintiff, RONALD L. BOWLES, and his attorneys, .;,:. ~ !RATTI BRADFORD & TOBIN, P.C., and RIDER, THOMAS, CLEAVELAND, C3 ) i i RRIS & EAKIN and for his cause of action against the Defendant, 5 ~ N RFOLK AND WESTERN RAILWAY COMPANY, a Corporation, alleges as .I:~~ llows: ~; t: ·] ~ ·~8 1. That on or about June 23, 1993, and for some time prior r~~~~mi~ereto 1 • the Defendant 1 NORFOLK AND WESTERN RAILWAY COMPANY 1 a ~~orat~on, was engaged in the business of interstate commerce in ·; '-'? :.> ~ ;- ....................~ ~ ~ gtjjd throughout the several states of the United States as a common 'g-CJ_or"'lt.O.e_ z ~ ~ :_:j ~ ~irrier by railroad; and for the purpose thereof did operate and do business in and about the City of Roanoke, in the State of Virginia. 2. This case is being refiled pursuant to Court Order. 3. That at said time and prior thereto, Plaintiff was employed by the Defendant as a machinist and was engaged in the performance of his duties as such worker at the time he was injured 1 on the aforesaid date as hereinafter alleged. 4. That at said time and prior thereto, Defendant was engaged in interstate commerce as a common carrier by railroad, and all or part of Plaintiff's duties as an employee of the Defendant were in furtherance of interstate commerce and closely, directly and substantially affected the same, by reason whereof the rights and liabilities of the parties were governed by the Act of Congress known as the Federal Employers' Liability Act, 45 u.s. Code, Section 51-60. s. That on or about June 23, 1993, Plaintiff was engaged in the course of his employment with Defendant at or near Roanoke, Virginia, when he was caused to be severely and permanently injured while attempting to compress a shock-absorber and was caused to be injured, as a result, in whole or in part, of the carelessness and negligence of the Defendant. 6. That Defendant, by and through its duly authorized agents and employees, was then and there guilty of one or more of the following negligent acts or omissions in violation of the Federal Employers' Liability Act: (a) Failed to provide safe and suitable tools and equipment to perform the task assigned; (b) Failed to provide a reasonably safe place to work; (c) Failed to provide reasonably safe methods of work; (d) Failed to furnish sufficient manpower to perform the task assigned; 6. That as a result, in whole or in part, of one or more of 2 2 the foregoing negligent acts or omissions, Plaintiff sustained severe and permanent injuries to his back, spine, and body resulting in disability and disfigurement and which has caused and will cause him in the future to suffer qreat pain and mental anguish; and he has lost and will in the future lose earninqs he otherwise would have earned but for his injury; and he has been and will in the future be compelled to obligate himself for medical aid and attention; and his future earning capacity has been seriously diminished thereby; All To The Damage of the Plaintiff in a sum of THREE.MILLION DOLLARS ($3,000,000.00). WHEREFORE, Plaintiff, RONALD L. BOWLES, prays judgment against the Defendant, NORFOLK AND WESTERN RAILWAY COMPANY, a Corporation, in a sum of THREE MILLION DOLLARS ($3,000,000.00), and for costs of suit. RONALD L. BOWLES PLAINTIFF DEMANDS PRATT, TRIAL BY JURY. BY: --~~--~--~~~~~~~------GREGORY M. T BI #26571 Attorneys for Plaintiff P. o. Box 179 Route 111 at Airline Drive East Alton, IL 62024 Telephone: (618) 259-8011 RIDER, CLEAVELAND, FERRIS & BY: DEN A. EAKIN P.O. Box 1791 322 Luck Avenue, SW Roanoke, VA 24008-1791 Telephone: (540) 344-3233 3 3 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF RO RONALD L . BOWLES Plaintiff GROUNDS OF DEFENSE v. Case No. 770CL97000825-00 NORFOLK AND WESTERN RAILWAY COMPANY Defendant For its Grounds of Defense to Plaintiff's Motion for Judg- ment, Defendant states: (1) It admits the allegations contained in paragraphs 1 and 4 of the Motion for Judgment; it admits that on the date referred to in the Motion for Judgment Plaintiff was employed by it as a Machinist; and it denies each and every other allegation con- tained in the Motion for Judgment. (2) It denies that Plaintiff is entitled to recover from it the amount alleged in the Motion for Judgment or any other sum whatsoever. (3) It denies that it has violated any legal duty that it may have owed to Plaintiff. (4) It alleges, as an affirmative defense, that any inju­ ries and damages that Plaintiff may actually have sustained were caused solely by his own negligence. (5) It alleges, as an affirmative defense, that Plaintiff LAW OFFICES was guilty of contributory negligence with regard to any injuries IOHNSON. AYERS a MATTHEWS P. 0. BOX 2200 and damages that he may actually have sustained. OANOKE. VA. 2•000 (6) It alleges, as an affirmative defense, that Plaintiff has failed to mitigate his damages. 4 ·- (7) It.·alleges, as an affirmative defense, that the claim set forth against it in the Motion for Judgment is barred by the applicable statute of limitations. Respectfully, NORFOLK AND WESTERN RAILWAY COMPANY Byy~J~~~Of unsel James F. Johnson Va. Bar Code 03412 Johnson, Ayers & Matthews P. 0. Box 2200 Roanoke, Virginia 24009 Of Counsel for Defendant CERTIFICATE OF MAILING I, James F. Johnson, of counsel for Defendant, hereby certify that a true copy of the foregoing Grounds of Defense was mailed to Gregory M. Tobin, P. 0. Box 179, East Alton, Illinois 62024, and to Lenden A. Eakin, P. 0. Box 1791, Roanoke, Virginia 24008, counsel of record for Plaintiff, this 4~ day of August, 1997. LAW OFFICES JOHNSON, AYERS & MATTHEWS P. 0. BOX 2200 !OANOKE, ~. z•ooe - 2 - 5 r V I R G I N I A : IN THE CIRCUIT COURT FOR THE CITY OF ROANOKE RONALD L. BOWLES, ) ) Plaintiff, ) ) DEFENDANT'S FOURTH v. ) MOTION IN LIMINE ) NORFOLK AND WESTERN RAILWAY ) Case No. CL 97000825-00 COMPANY, ) ) Defendant. ) Defendant, Norfolk and Western Railway, by counsel, moves in limine to exclude the testimony of Michael Shinnick regarding certain opinions that he may give as to whether the tasks that Plaintiff was performing at the time of his alleged accident and injury were reasonably safe, and in support thereof, Defendant states as follows: 1. Plaintiff has identified Michael Shinnick as an expert who may testify in this matter regarding a purported ergonomic analysis of Plaintiff's work site. A copy of Mr. Shinnick's reports dated August 14 and October 30, 1998, are attached as Exhibits 1 and 2. 2. Defendant moves to exclude any opinion testimony from Mr. Shinnick based upon conclusions that he has drawn because of subsequent remedial actions taken by the railroad, which testimony this Court has excluded by Order dated January 12, 1999. 3. Defendant expects Plaintiff to elicit opinion LAW OFFICES testimony from Mr. Shinnick that Defendant had notice that JOHNSON. AYERS & MATTHEWS P 0 BOX 2200 Plaintiff's work task was unsafe because of (a) worker ROANOKE. VA. 2•009 complaints; (b) the hazards of the job "cry out" for hazard 5 -A prevention; and (c) it was a "simple procedure to prevent the hazards, since the railroad got clamps to complete the task within a matter of weeks following Plaintiff's alleged accident and injuries." 4.
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