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Robinson v. New Jersey Transit Rail Operations, Inc.

United States District Court, D. New Jersey

May 8, 2017

QUITMAN ROBINSON, Plaintiff,
v.
NEW JERSEY TRANSIT RAIL OPERATIONS, INC. Defendant. Date % Increase $ Increase Rate Start End Hourly rate Overtime Rate Straight Hours per week OT Hours Per Week Weekly Loss Weeks Missed Combined Wage Loss

          Attorney for Plaintiff Marc T. Wietzke, Esquire Flynn & Wietzke, PC

          Attorney for Defendant J. Gregory Sullivai Esq. John J. Hoffman

          FINAL PRETRIAL ORDER

          CATHY L. WALDOR UNITED STATES MAGISTRATE JUDGE

         A pretrial conference* having been held before the Honorable Cathy L. Waldor, U.S.M.J., Marc Wietzke having appeared for plaintiff(s) and Gregory Sullivan having appeared for defendant(s), this Final Pretrial Order is hereby entered:

         [PRECEDE WITH DIVIDER #1]

         1. JURISDICTION (set forth specifically)

         45 U.S.C. §51 et seq. - uncontested

         [PRECEDE WITH DIVIDER #2]

         2. PENDING/CONTEMPLATED MOTIONS (Set forth all pending or contemplated motions, whether dispositive or addressed to discovery or the calendar. Also set forth the nature of the motion. If the Court indicated that it would rule on any matter at pretrial, summarize that matter and each party's position contemplated in limine motions should also be set forth.)

         Plaintiff intends to move in limine pursuant to Eichel v. New York Central R. Co., 375 U.S. 253 (1963) to preclude the introduction of any evidence of disability benefits as deriving from a collateral source.

         [PRECEDE WITH DIVIDER #3]

         3. STIPULATION OF FACTS (Set forth in numbered paragraphs all uncontested facts, including all answers to interrogatories and admissions to which the parties agree.)

1. This action is brought under the Federal Employers' Liability Act, (45 U.S.C. Sec. 51 et seq.).
2. The defendant is a corporation engaged in interstate commerce by rail and operates a railroad system and railroad yards within the jurisdiction of this Court and in various other Stales.
3. That prior to November 7, 2011, and at all times hereinafter mentioned, the defendant employed the plaintiff as a maintainer under its direction, supervision and control and in furtherance of defendant's business in interstate commerce.
4. That prior to November 7, 2011, and at all times hereinafter mentioned, the defendant maintained, operated and controlled M275 in Morristown, New Jersey, which contained defendant's tracks, rails, switches, sidings, roadbeds and appurtenances thereto, over, through and upon which the defendant operated engines, trains and cars under its control and direction.
5. Plaintiff was earning S27.40, gross, per hour at the time of the accident.
6. Plaintiff received a wage increase to $27.54 per hour effective January 1, 2012.
7. Plaintiff received a wage increase to $27.81 per hour effective July 1. 2012
8. Plaintiff received a wage increase to $28.09 per hour effective January 1, 2013
9. Plaintiff received a wage increase to $28.51 per hour effective July 1, 2013
10. Plaintiff received a wage increase to $28.94 per hour effective January 1, 2014
11. Plaintiff received a wage increase to $29.37 per hour effective July 1, 2014
12. Plaintiff received a wage increase to $29.81 per hour effective January 1, 2015
13. Plaintiff received a wage increase to $30.26 per hour effective July 1. 2015
14. Plaintiff received a wage increase to $30.72 per hour effective January 1, 2016
15. Plaintiff received a wage increase to $31.18 per hour effective July 1. 2016
16. Plaintiff is entitled to a wage increase to $ 31.64 per hour effective January 1. 2017
17. Plaintiff is entitled to wage increase to $32.38 per hour effective July 1, 2017
18. Plaintiff is out of work from August 3, 2013 to present.
19. Plaintiff is currently 59 years old.
20. Plaintiff has a life expectancy of 23. years - National Vital Statistics Reports.
21. Plaintiff has a work expectancy of 18.3 years - U.S. Department of Labor - Bureau of Labor Statistics

         [PRECEDE WITH DIVIDER #4]

         4. PLAINTIFF'S CONTESTED FACTS (Proofs shall be limited at trial to the contested facts set forth. Failure to set forth any contested facts shall be deemed a waiver thereof.)

         A. Plaintiff intends to prove the following contested facts with regard to liability:

1. Plaintiff was kneeling in the hole bent over at the waist, due to not being able to stand up underneath the bungalow, digging/removing dirt and exposing the working cables when he went to turn to put the heavy wet dirt in another area of the hole.
2. There was a discussion days before the incident in question between plaintiff and Nunzio Mazza requesting that the bungalow be pulled off the legs in order to do the digging under the bungalow.
3. The request was denied because it would slow down trains. Additionally, Frank Ruggiero knew what the conditions were and should have requested lifting of the bungalow.
4. The employees, including plaintiff, were required to work bent over under the bungalow to do the digging, exposing them to potential cave-ins and increasing the likelihood of a back injury due to awkward posture.
5. Plaintiff was required to dig while kneeling 6. The cables could have been removed by alternate means.
7. The hut was placed using a boom.
8. The defendant negligently and carelessly conducted itself toward the plaintiff in failing to provide plaintiff with a reasonably safe place to work;
9. Defendant failed to provide proper equipment;
10. Defendant failed to provide adequate manpower;
11. Defendant failed to properly install the signal hut in the first instance;
12. Defendant failed to inspect plaintiff's work area;

         B. Plaintiff intends to prove the following contested facts with regard to damages:

1. Plaintiff sustained a herniation at ΒΆ 5-S1 which compressed the proximal ...

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