Defense Verdict for Norfolk Southern Affirmed in Federal Employers’ Liability Act Lawsuit

June 2025 • Source: Gallagher Sharp LLP

Partner, Joe Santoro, and the Appellate team, Partner Richard Rezie and Associate Phil Kelly, obtained a decision from the 11th District Court of Appeals upholding the defense verdict for Norfolk Southern rendered by a jury in a FELA case on March 15, 2024.  Plaintiff Drew Herman alleged that he was struck by a backhoe due to the negligence of the operator. Norfolk Southern contended that the accident was caused by the Plaintiff’s negligence in entering the backhoe’s swing radius without communicating with the operator.  Plaintiff’s counsel asked the jury to award his client over $14 million in compensatory damages. 

The jury found that Norfolk Southern was not negligent in any respect leading to the defense verdict.  On appeal, Plaintiff argued that a new trial was necessary due to the trial court’s jury instructions on negligence, assumption of the risk, and contributory negligence. With respect to the instructions on negligence and assumption of the risk, the appellate court held that Plaintiff failed to properly preserve his objections in the record and failed to invoke plain error review. As a result, the appellate court held in a 3-0 decision that Herman forfeited his right to plain error review and, even if he had not done so, the instructions did not constitute plain error. Finally, with respect to the other instructions at issue, the court held that the instructions were correct statements of the law and did not mislead the jury. 

The court of appeals decision can be found at https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2025/2025-Ohio-1498.pdf