Jury: Can we award more?

By Jim Osborn
Copyright 2007, The Columbus Telegram

COLUMBUS - A U.S. District Court jury in Omaha sent a note with a question for the judge before issuing a verdict in a 36-year-old Columbus man's workplace injury lawsuit.

The 12-member jury wanted to know if it could award Kendall Walsh more than the $2.3 million sought in his suit against his former employer, Union Pacific Railroad railroad, for injuries that required three surgeries.

The jury members awarded $2.8 million to the married father of two children in the workplace injury case, said Denver attorney Jim Cox, who represented Walsh in the lawsuit stemming from a July 2005 accident near Denison, Iowa.

While the jury sided with Walsh following the five-day trial, it found him partially responsible and subtracted 2 percent, or $56,000, from the $2.8 million verdict.

In a telephone interview with Walsh seeking comment on the case, the Columbus man referred all questions to his attorney. “I really can't comment too much on the case,'' he said.

Union Pacific Railroad has until mid-September to decide whether to appeal the jury's verdict in the case. James Barnes, a railroad spokesman, said the company is considering a possible appeal.

Cox said Walsh lost the use of his right arm after it was crushed by a concrete railroad tie that fell off a pile at a railroad crossing. The tie measured 10 feet long and weighed about 900 pounds, he said.

Walsh was part of a railroad Maintenance of Way Department crew that was replacing wooden ties with the concrete ties, Cox said. He said his client was standing near the pile of concrete ties when it suddenly shifted and one landed on his forearm.

Cox said the concrete ties weren't stacked with wooden dividers (2 by 4 boards) to keep the pile level and stable.

The jury award was for lost wages, future impairment of earning capacity, pain and suffering and the loss of his ability to enjoy life, Cox said.

Walsh, who had been his family's primary breadwinner, has not worked since the accident. He has undergone three surgeries, including one shortly after the accident to treat a major medical complication.

Walsh had initially been treated at a Denison hospital, but had to undergo surgery at Columbus Community Hospital following the accident.

“The surgery performed by Dr. (Richard) Cimpl probably saved Kendall having any use of the arm,” Cox said.

The attorney said his client's arm has feeling, but he can't grasp anything in his right hand, bend his fingers on that hand or move his wrist much.

Before the lawsuit went to trial, it was determined his client's injuries had reached their “maximum medical improvement,'' Cox said.

Meanwhile, Walsh has been attending Central Community College-Columbus studying business administration with an emphasis on entrepreneurship and applying for jobs.

Cox said his client's future job opportunities are limited. Essentially, Walsh can perform desk or computer jobs, he said.