Civil jury clears railroad of blame

By Phil Ray

HOLLIDAYSBURG – A Blair County civil court jury found Thursday evening that the railroad was not the cause of hearing loss suffered by longtime freight train conductor John Bankert of Altoona.

The jury’s 38-minute deliberation concluded a three-day trial in which Bankert blamed his hearing loss on the noisy environment he experienced during more than 30 years working for Conrail and Norfolk Southern Railway.

Like many civil trials, the case included contradicting medical testimony, with Bankert’s doctor contending his hearing went downhill in 2009 after several years of little change in his condition first discovered in 1995, while a doctor representing the railroad said Bankert’s hearing loss did not occur suddenly but was the result of the aging process and was possibly genetically activated.

The doctor pointed out Bankert’s father, now in his 80s, also has hearing loss.

The crux of Bankert’s case, as outlined by his attorney, Gerard Martillotti of Philadelphia, was that the railroad work environment was noisy and legally “unsafe” and that Conrail and Norfolk Southern, the companies Bankert worked for, were negligent for not providing better equipment.

The attorney representing the railroad companies, T.H. Lyda of Pittsburgh, said no work place is perfectly safe. He pointed out deficiencies even in the staid Blair County courtroom.

Under the law – The Federal Employees Liability Act – the railroad is not required to provide a perfect working environment, but a “reasonably safe” one, Lyda said.

To show the railroad went the extra mile in trying to make its work environment safe, Lyda had railroad safety experts William Berringer and Mark Duttle review the effort the railroad, since the 1980s, has made to identify excessively noisy work areas, the training programs the workers, including Bankert, went through year-after-year to the learn how to use ear protection devices like inserts and muffs and the audio tests administered to the workers.

In 1995, it was discovered Bankert suffered from a slight, 4 percent, hearing loss.

The railroad at that time agreed to pay him $1,500 but had him sign a release.

Therefore, the focus of the trial was on the time between 1995 and 2009, when Bankert’s hearing loss advanced to nearly 50 percent.

A major question before the jury was whether Bankert’s recent and severe hearing loss was “new” or if it was just a progression of what Bankert experienced.

The jury found that he had suffered a new hearing loss but rejected the argument that his job was the cause.

When Bankert realized his hearing loss was affecting his job and his life in general, he reported it to the company – Norfolk Southern Railway – at which point he was taken out of service.

After his initial hearing loss was discovered, Bankert agreed to wear ear protective devices while on the job, but, in testimony this week, he said that he sometimes didn’t wear the protection when in the yard moving cars. He said he had to be aware of the activity around him in the yard and had to communicate via radio with others as he was putting together trains that were sometimes up to two miles long.

Berringer said Bankert would be “violating the rules” when he took off the protective devices while in the yard.

Bankert was 57 years old when the railroad said he could no longer work – as per federal regulations – because of his hearing loss. Bankert testified he intended to retire at age 60.

He was asking for 2 1/2 years of lost wages and for damages because of the effects the hearing loss had on his daily life.