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Beech Grove, Indiana

Thursday, May 30, 2019

Beech Grove case stays in Philadelphia

Beech Grove, Indiana (May 30, 2019) IBG — Conrail’s headquarters and executives in Philadelphia are enough to let a former Indiana rail worker’s family bring a Federal Employers Liability Act case against the company in Pennsylvania over the worker’s fatal, allegedly work-related cancer, the state’s Superior Court ruled Wednesday.

The Superior Court of Pennsylvania’s precedential ruling said that even though the late David Robbins worked 35 years for Consolidated Rail Corp. and its predecessor, the Penn Central railroad, in an Indianapolis rail yard, his family could choose to sue in Pennsylvania state court because current and former company officials who set policies allowing him to be exposed to cancer-causing chemicals and substances were located in Philadelphia.

“Mr. Robbins … identified four fact witnesses, all of whom reside in Pennsylvania and were former Consolidated Rail employees. Additionally, the trial court noted appellants conceded that it is unlikely any party would seek a request to view the train yard at issue,” wrote Judge Correale F. Stevens for the unanimous panel. “Although the decedent worked at the train yard in Indiana, the policies and procedures related to the decedent’s exposure to chemicals and cancer-causing substances were determined at Consolidated Rail’s headquarters in Philadelphia.”

The appeals court upheld a Philadelphia judge’s denial of Conrail’s effort to have the case dismissed and moved to Indiana, ruling that the lower court had not abused its discretion by keeping the case in Pennsylvania.

David Robbins had worked from 1953 to 1989 at Indianapolis’ Beech Grove Train Yard, where his family alleges he was exposed to chemicals that resulted in his death from lung and liver cancer in 2014. His family filed a FELA lawsuit in the Philadelphia Court of Common Pleas in 2017, the opinion said.

Conrail and Penn Central sought to have the case dismissed on the basis that Pennsylvania was an inconvenient forum: None of Robbins’ employee records were kept there, Robbins had never lived or worked there, and two of his former supervisors the companies identified as likely witnesses lived in Indiana and Illinois.

“Michael Scully, director of risk management for Consolidated Rail… confirmed the decedent never worked for appellants in Pennsylvania, and employment records for the decedent are stored in Jacksonville, Florida, or Mount Laurel, New Jersey,” the opinion says. “Mr. Scully averred there may be additional former supervisors or co-workers yet to be identified; however, it was not expected that the supervisors or co-workers would have worked or lived in Pennsylvania.”

But when Robbins’ family identified the current and former Conrail officers they intended to call in Philadelphia and pointed out that the employee records in New Jersey were closer to Philadelphia than Indianapolis, the trial court sided with them and denied the companies’ motion to dismiss in December, 2017. The companies appealed to the Superior Court.

The Superior Court panel said the trial court had properly considered whether any “weighty reasons” supported overriding the Robbins family’s choice of forum and rightly concluded that they did not.

Although Conrail offered to waive the statute of limitations if the case were dismissed from Philadelphia so it could be refiled in Indiana, the convenience of getting witnesses and evidence to Philadelphia, and the interest of a Pennsylvania jury in the policies set by a Philadelphia-based company, weighed in favor of keeping the case here, the opinion said.

“The trial court relevantly concluded there was no evidence that Indiana would provide easier access to the decedent’s employment records, which are housed in New Jersey and/or Florida,” Judge Stevens wrote. “Mr. Robbins specifically averred he ‘intend[ed] to call four former [Consolidated Rail] employees who worked in Philadelphia as fact witnesses at trial including Marcia Comstock (medical director), William Barringer (safety director), Ramon Thomas (industrial hygienist), and Paul Kovac (occupational claims manager).’ ...Mr. Robbins noted it is ‘convenient’ that appellants named only the decedent’s former supervisors and appellant did not indicate any of their current employees would testify.”

The opinion also said the trial court did not abuse its discretion by failing to admit issues or facts that Robbins had not responded to in a timely fashion, since the original request for admissions had come to Robbins from CSX Transportation, which is a part-owner of Conrail but not a party to the case.

Joseph Cappelli, whose firm represented Robbins, said he was glad the Superior Court said Conrail’s presence in Philadelphia meant cases could be brought there, after local judges had different opinions on the forum issue.

“We have dozens and dozens of these cases currently in Philadelphia,” Cappelli said. “We’re extremely pleased with this court clearing that up and setting this issue straight.”

Counsel for Conrail and Penn Central did not respond to requests for comment Wednesday.

Judges Correale Stevens, Alice Beck Dubow and Judith Ference Olson sat on the panel for the Superior Court.

Robbins and his estate are represented by Thomas J. Joyce III and Shawn M. Sassaman of Bern Cappelli LLP.

Consolidated Rail is represented by Theresa A. Langschultz, Sharon L. Caffrey, Robert L. Byer and Shawn L. Pollack of Duane Morris LLP, and Evan M. Tager and Craig W. Canetti of Mayer Brown LLP.

Penn Central Corp. is represented by Frank A. Dante, Louis D. Abrams and Daniel L. Jones Jr. of Blank Rome LLP.

The case is Robbins v. Consolidated Rail Corp. et al., case number 1055 EDA 2018, in the Superior Court of Pennsylvania.

--Editing by John Campbell.

SOURCE: Law360

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Sunday, May 26, 2019

Beech Grove Sports: Josh Fryar talks

Beech Grove, Indiana (May 26, 2019) IBG — There are days when a classmate in the hallways at Beech Grove (Ind.) will ask Josh Fryar if he plans to play college football. Those kids know Fryar as the friendly face on top of the 6-5, 315-pound frame.

“They ask if I’m going to Marian or somewhere local,” Fryar said.

Nothing against Marian, which has built on NAIA powerhouse under coach Mark Henninger on the strength of local talent. Fryar’s older brother, Jacob Fryar, is a sophomore tight end at Marian.

But what those classmates do not often see is the line of coaches waiting in the main office at Beech Grove to see Fryar, a junior, go through a workout. One day this month, assistants from Ohio State, Oklahoma, Penn State, Wisconsin and Vanderbilt were there the same day.

“It’s crazy how you walk through the door and see those coaches,” Fryar said. “I thought I’d be going to a Division II or Division III school instead of a huge Division I school.”

Photo: Wayne McGahee III/Tallahassee Democrat

Fryar is literally and figuratively one of the biggest recruits in the state. The multi-sport standout will make the first of his official visits next week to Oregon, where he has a scholarship offer. Fryar has other official visits set for Penn State (June 14-16) and Ohio State (June 21-23), two more schools that have offered. He has plans to narrow his list down to eight by July 4 and then make his decision during the middle or end of his senior season.

Other programs on his offer list include Indiana, Purdue, Florida State, Iowa State, Louisville, Michigan State, Minnesota, Washington State, West Virginia and Wisconsin.

“I’m taking it real slow,” Fryar said. “This is the first time and probably only time I’m going to do this.”

The first program to offer Fryar was Indiana State, which was a significant to the family. When the late Bill Mallory was hired at Indiana in 1984, one of his first recruits was Jeff Fryar — Josh’s father — out of Lawrence North. Indiana State’s coach is Curt Mallory, Bill’s son.

I can’t describe what that was like,” Josh said. “Even though it’s a (FCS) school, you have a scholarship offer to play college football. It was humbling because it was coach Mallory and my dad obviously knew him really well. They wanted to be the first one to offer me because my dad was the first one to get recruited by Bill Mallory.”

Fryar came to Beech Grove from Roncalli, where as a freshman he saw action in two plays in the Rebels’ Class 4A state championship win over NorthWood in 2016. “Most nervous I’ve been in my life,” Fryar said. Jeff Fryar had been the offensive line coach at Roncalli for longtime coach Bruce Scifres, who retired after the 2016 season.

“I wanted to try something new at Beech Grove and I absolutely love it here,” Josh said. “I came in blind and didn’t really know anyone. But I love the people, love the teachers, the administration. They are so friendly and awesome to be around.”

College football coaches love Fryar’s athleticism and versatility. He is ranked as the No. 5 center in the country on the 247Sports national composite, but can also play guard or tackle. Coaches also like that he is a multi-sport athlete, playing on Beech Grove’s basketball sectional title team last season as a junior and is currently competing in the discus and shot put for the Hornets’ track team.

For Fryar, who was a standout wrestler from first through eighth grade, there was never a doubt he would continue with basketball and track. He plans to play all three sports again as a senior.

“You are never going to get a chance to play high school sports again,” he said. “Indiana basketball is Indiana basketball. In track, I like throwing the shot and disc. It keeps me active. I don’t want to be that guy who just plays football and lifts weights and doesn’t have anything outside of that to do. I want to expand my athleticism and show college coaches, ‘Hey, I can do this, too.’”

Related | Josh Fryar sets Oregon Ducks visit 

And while he is a star in football, Fryar said it was beneficial to play a supporting role on the basketball team. Beech Grove won its first sectional since 2008 in an emotional season that saw former coach Matt English die after a long battle with brain cancer and former assistant Mike Renfro take the reins.

“My sophomore year I was kind of pushing (former coach Matt English) that I could play varsity,” Fryar said. “But he had a plan for me. He wanted me to be a better basketball player and I trusted him. Sitting on the bench and cheering my teammates on made me have the perspective of, ‘You can change the outcome of a game even if you aren’t playing.’ It was awesome. That was the most fun I ever had in a basketball season. You can actually see the tradition coach English built here and we just want to keep it going.”

Fryar will have his college decision made by the time his senior basketball season begins. Coaches from Oregon and Ohio State were in again Tuesday to watch him work out. Fryar, who plans on majoring in communications, will get his first look at the Oregon campus when he arrives in Eugene on Monday.

“Distance doesn’t really matter to me,” he said. “The relationship with the offensive line coach and strength coach is really important because I’m going to have to click with them. And mainly, you have to talk to the players. They will tell you straight up how it is. I’m just looking forward to taking my officials, talking to the players and seeing what it’s all about.”


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