When a jury awards an injured railroad worker millions of dollars, that’s not always the end of the story. Not by a long shot. Railroads have deep pockets, experienced legal teams, and a well-practiced playbook for challenging verdicts they don’t like. One example involved Norfolk Southern’s defense attorneys seeking a new trial after a West Virginia jury awarded an injured worker $3.4 million. Their argument? That the judge had read the jury instructions incorrectly, and that the error affected the outcome.
It’s a common move. And it’s just one piece of a broader strategy that railroad companies use to minimize what they pay injured employees — or avoid paying anything at all.
If you’re pursuing a FELA claim, or even just considering whether you might have one, understanding what you’re up against matters. The railroad’s legal team isn’t neutral. They aren’t there to help you figure out what you deserve. Every tactic they employ is designed to reduce your recovery, delay the process, or get your case thrown out altogether.
The Defense Starts Before You Even File a Claim
Most people think the legal battle begins when papers get filed. In railroad injury cases, the railroad’s defense begins the moment an injury is reported. Sometimes earlier.
Railroad claims agents are often the first company representatives to make contact with an injured worker. They may present themselves as helpful, concerned, and interested in getting you taken care of. That framing is deliberate. The claims agent’s actual job is to gather information that the railroad can use to limit its financial exposure.
Requests for recorded statements are standard practice. The questions will sound casual. They’re not. Claims agents are trained to phrase inquiries in ways that elicit answers that can later be used to suggest the injury wasn’t serious, the incident wasn’t the railroad’s fault, or that the worker was at least partially responsible. What may feel like a routine conversation can yield a statement that significantly undermines the claim.
Photograph documentation, reenactments, interviews with co-workers and supervisors — all of this happens quickly after an incident is reported. The railroad is building its file while the facts are fresh. If you’re not doing the same, you’re already behind.
Seeking medical attention promptly matters for the same reason. Railroads are consistently skeptical of injury claims that don’t involve immediate medical care. There are documented instances of railroad officials attempting to prevent or delay an injured worker from seeking treatment, specifically to avoid having the injury become formally reportable to the Federal Railroad Administration. Getting evaluated by a doctor right away, even when symptoms seem minor, protects the worker — both medically and legally.
You can review the FRA’s injury reporting requirements on the FRA railroad safety regulations page.
Jury Instruction Challenges and Appeals
The Norfolk Southern appeal mentioned above isn’t an outlier. Challenging jury instructions is one of the most frequently used post-verdict tactics in FELA litigation.
Jury instructions are the legal directions a judge gives to jurors explaining how to apply the law to the facts before them. Getting those instructions right is genuinely important, which is why both sides argue hard over the precise wording before a trial. When a verdict goes against the railroad, its attorneys comb through the instructions looking for language they can argue was improper, confusing, or inconsistent with established FELA precedent.
The U.S. Supreme Court weighed in on FELA causation instructions in CSX Transportation v. McBride (2011), affirming that the proper standard in FELA cases doesn’t require the railroad’s negligence to be a “proximate cause” in the traditional tort sense. The jury is told that the railroad caused or contributed to the worker’s injury if negligence played any part, no matter how small, in bringing about the harm. Railroads have repeatedly challenged instructions using this more permissive standard, and courts have repeatedly upheld them.
Still, the challenge is raised because, even if it doesn’t succeed on appeal, it creates a delay. It prolongs the process. It costs the worker time and legal resources to defend the verdict they already won. That pressure is part of the strategy.
Comparative Fault Arguments: Blaming the Worker
One of the most predictable and consistently used tactics in FELA cases is arguing that the injured worker was fully or partially responsible for their own injury. FELA operates under a pure comparative fault standard, which means that if a jury finds the worker was partially at fault, the worker’s damages are reduced proportionally. Under FELA, even significant worker fault doesn’t eliminate a claim — but it does reduce the recovery.
Railroads know this and use it. The argument almost always follows a recognizable pattern. Defense attorneys will point to one or more of the following:
- The worker violated a specific written safety rule at the time of the injury
- The worker failed to use provided personal protective equipment
- The worker was inattentive or distracted at the moment of the incident
- The worker took a shortcut or bypassed a proper safety procedure
- The worker had a duty to inspect equipment before using it and failed to do so
Any one of these arguments, if accepted by a jury, reduces the damages award. The railroad doesn’t need the jury to find the worker entirely at fault; a finding of 25 or 30 percent worker negligence still significantly reduces the settlement or verdict amount.
What the railroad won’t always volunteer is an important statutory exception baked into FELA itself. Under 45 U.S.C. § 53, when a railroad violates a specific federal safety statute, and that violation contributed to the worker’s injury, the defense of contributory negligence disappears entirely. If a worker was hurt in part because the railroad violated an applicable safety law, the worker can recover full damages regardless of their own conduct. Identifying those regulatory violations is one of the most valuable things a FELA lawyer can do for a client early in a case.
Recorded Statements and Medical Record Disputes
Beyond the recorded statement taken immediately after an injury, railroads also move aggressively to obtain complete medical records, sometimes reaching well back into the worker’s history. The goal is straightforward: find prior injuries, prior complaints, or pre-existing conditions that can be used to argue the worker’s current medical problems aren’t really connected to the railroad incident at all.
FELA does cover aggravation of pre-existing conditions, so a prior health history doesn’t automatically eliminate a claim. But if a railroad can convince a jury that the worker’s back injury existed before the accident, or that a hearing loss predates the period of noise exposure claimed, it weakens the damages argument substantially. A worker who enters a claim without understanding this will often find their medical history used against them in ways they didn’t anticipate.
Getting your medical history reviewed by a doctor with knowledge of occupational and railroad-related injuries, early in the process, helps your legal team understand what’s in that record before the railroad’s attorneys get there first.
Delay as a Defense Strategy
Not every railroad tactic is visible in the courtroom. Some of the most effective pressure comes through simple delay.
FELA claims take time to litigate. Railroads have the financial resources to draw that process out far longer than an injured worker, who may not be working, can comfortably sustain. The longer a case drags on, the more pressure builds on the worker to accept a settlement that doesn’t fully reflect their losses. Evidence becomes harder to reconstruct over time. Witnesses’ recollections fade. Medical records pile up in ways that make it harder to tell a clean story.
Delay isn’t always the result of bad faith. But it’s a consequence that experienced railroad defense attorneys know benefits their client, and it’s one reason why having a FELA lawyer who can push back on unnecessary delays and keep the litigation moving matters so much in these cases.
What Injured Workers Can Do to Protect Their Claims
The tactics railroads use aren’t unbeatable. They’re predictable. And the best response to a predictable opponent is preparation.
A few things that consistently protect FELA claims from these common attacks:
- Report the injury formally and in writing as soon as possible, even if symptoms seem minor at first.
- Seek medical treatment promptly and give your doctor a clear, accurate account of how the injury occurred and what you were doing at the time.
- Don’t give recorded statements to railroad claims agents without speaking to an attorney first.
- Document everything you can remember about the incident, the conditions, and the equipment involved.
- Be cautious about what you say to supervisors, co-workers, and anyone affiliated with the company after an injury
- Consult a FELA lawyer before making any decisions about your claim
That last point isn’t just self-promotional advice. Railroad companies begin their investigation the same day an injury is reported. The workers who end up with the best outcomes are typically the ones who had legal representation early enough to match the railroad’s preparation with their own.
Shapiro, Washburn & Sharp Has Been Doing This for Decades
At Shapiro, Washburn & Sharp, we’ve represented injured railroad workers against carriers like Norfolk Southern, CSX, and Amtrak for decades. We understand the defense playbook because we’ve faced it many times in Virginia courts and beyond. We know how to build claims that hold up under appellate challenges, how to identify regulatory violations that eliminate contributory-fault arguments, and how to move cases forward rather than letting them stall.
If you’ve been injured working for a railroad and want to understand your options before the railroad’s legal team gets too far ahead, a FELA lawyer from our firm can help you figure out where you stand.
We offer a free consultation with an FELA lawyer, and there are no legal fees unless we recover compensation for you.
Call Shapiro, Washburn & Sharp at (833) 997-1774 or use our online contact form to schedule your free case review.