Expert Witnesses in a Railroad Worker Injury Lawsuit

Learn about the expert witness's role in a FELA injury case, from fees to testimony.

When an employee of a railroad suffers an at-work injury, the worker may be able to sue the railroad for compensation. But in order to do so, the worker will have to prove that the injury was a result of something the railroad did or failed to do, amounting to negligence. This can be difficult.

A worker usually has to hire an expert witness in order to help prove the case. Most commonly, the worker hires an attorney, who finds an expert witness who will lend support to the employee's case. The expert evaluates the case, often examining the worker, and testifies that the worker’s injury was in fact caused by the wrongful act of the railroad.

In the sections that follow, we discuss an expert witness’s role in a railroad worker injury lawsuit, how an expert is selected, how much an expert costs, and when a judge might prevent an expert witness from testifying.

An Expert’s Role in a Railroad Worker Injury Case

A medical expert’s primary job is to describe the worker’s injury to the jury. The expert should convey both the nature of the injury as well as how it likely occurred.

This testimony varies significantly depending on the type of injury involved. Testimony about a fairly simple injury (like a broken arm) may be very brief. On the other hand, in cases involving a complex injury, such as a cumulative trauma injury, the expert’s testimony can last several days.

The expert has a few other jobs as well. Most courts will reject a worker’s personal injury case without allowing it to go to trial if the worker fails to find an expert witness willing to testify that the injury resulted from something that happened at work. So, in order to convince the judge that there is sufficient evidence to justify a trial, a worker’s expert witness will submit a report summarizing his or her findings. The report indicates whether the expert personally examined the patient, whether the expert visited the site of the injury, what documents the expert reviewed, the expert’s conclusions, and the expert’s justifications for those conclusions.

The railroad also has a right to know how the expert will testify in advance of the trial. So, the railroad will usually conduct a deposition of the expert. The railroad’s attorney will ask questions and the expert will respond, much like a witness would testify at trial. The difference is that the main purpose of the deposition is to give the railroad notice of what the expert will say at trial.

Selecting an Expert Witness

Usually, the worker’s attorney selects the expert witness. The choice depends on the type of injuries involved in the case. If the worker suffered a back injury, the attorney would probably select an expert with extensive experience with back injuries.

An attorney may take other factors into consideration. For example, experts with more years of experience may be more persuasive. Also, an attorney may prefer to select an expert who has testified both for and against railroads. Imagine you are a juror and find out that the worker’s expert has testified in 100 cases and has testified that the worker’s injuries were the railroad’s fault every time. Wouldn’t it seem that the expert might be a bit biased?

The Cost of an Expert Witness

Expert witnesses are expensive. They tend to charge by the hour, and rates tend to range anywhere from $100 to $1,000 per hour. They bill for time spent examining the worker, a visit to the location of the injury (if necessary), time spent drafting the report, the deposition, and time spent testifying at trial.

Fortunately, workers usually don’t actually have to pay the expert witness directly. The worker’s attorney usually hires and pays the expert. It is common for the attorney to then deduct the cost of the expert witness from the amount of any verdict or settlement award.

So, imagine a worker hires an attorney on a 33% contingency fee basis. Just before trial, the attorney negotiates a settlement of $100,000. The attorney spent $10,000 on expert witness and other fees. It would be common for the attorney to deduct $10,000 from the award in order to cover the cost of the fees. Then, the attorney would take another $30,000 as the attorney’s fee. The worker would walk away with a check for $60,000.

It may seem as though the attorney is getting a huge payout. But the attorney is taking a considerable risk. If the case goes to trial and the worker loses, the attorney invested $10,000 and a large amount of time on the case, but will recover nothing at all.

When a Judge Might Prevent an Expert Witness From Testifying

Sometimes, railroad worker injury cases can be so complicated that even the experts have trouble proving that the injury was caused by the job. Imagine a worker spends 20 years lifting heavy crates at a rail yard. The worker’s back eventually gives out. The worker has multiple surgeries, but the back never fully recovers.

The worker’s lawyer might hire a cumulative trauma expert to explain how wear and tear over the course of a long career can cause this type of back injury. But if the expert cannot point to scientific studies that have confirmed that a specific motion, such as lifting crates will lead to a specific injury, the court may refuse to allow the expert to testify. If that happens, the worker will almost certainly lose the case.

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