After testimony Wednesday about Perry Hopman's wartime experiences in Iraq and Kosovo that led to his diagnosis of post-traumatic stress disorder and traumatic brain injury, attorneys for Union Pacific Railroad questioned Thursday why Hopman would need a service dog on his job when his record showed he could do, and had been doing, the job safely for years.
Hopman, 45, of Benton, an Army veteran and a former flight medic, filed suit in federal court in 2018, after officials with Union Pacific Railroad refused his requests in 2015 and 2017 that his service dog be allowed to accompany him to work at the North Little Rock rail yard where he is an engineer on overnight runs to Van Buren in Crawford County.
Hopman was diagnosed with post-traumatic stress disorder in 2008 after an 18-month tour in Iraq and is a survivor of a traumatic brain injury that occurred during a 2010 deployment to Kosovo that resulted from a 50-foot fall out of a helicopter.
Hopman testified Thursday that he suffers flashbacks, depression and anxiety from his wartime experiences as well as debilitating migraine headaches resulting from the brain injury. He said his service dog, a 125-pound Rottweiler named Atlas, has been trained to ground him by sitting on his feet, remind him to take his medications, to sense the onset of migraines long before Hopman -- thus enabling him to take his migraine medication in time to avoid the most debilitating symptoms -- and to place a buffer between Hopman and other people when needed by circling him.
Wednesday, jurors heard from Atlas' trainer, Jordan Miller, who testified that the dog received more than 1,000 hours of training over two years to become certified as a service animal at a cost of $10,000 to Hopman. Miller testified to the level of training Atlas had received in comparison to some other service animals.
"Every dog that graduates my program has at least three tasks it can perform," Miller said. "Atlas has 12."
Under cross examination by Linda Schoonmaker, an attorney for Union Pacific, Hopman answered questions regarding his need for Atlas on the job, a need that Union Pacific has disputed with the claim that Hopman's exemplary service and safety record prove that he doesn't need the dog to function at an acceptable level.
Schoonmaker pulled up a copy of a 2017 email Hopman sent to Pauline Weatherford, a vocational case manager with Union Pacific, putting in a second request for an accommodation to bring Atlas on the locomotive with him, pointing out that the dog had been fully trained and certified to work as a service animal.
"Your request to Union Pacific was that your service dog be allowed to accompany you when you were walking the train, riding in the locomotive, or could be tethered or crated while switching and be allowed to travel with you to the hotel where you would spend the night on road trips," Schoonmaker said. "Is that correct?"
"That is correct," Hopman said.
Hopman confirmed that he told Union Pacific that he had trouble sleeping, concentrating, remembering to take his medication and interacting with other people and that he needed a service dog to assist him in daily activities both at home and at work.
"But in your request for an accommodation in May of 2017, you did say that you were currently able to function in your job?" Schoonmaker asked. "Correct?"
"I can," Hopman said.
"And that you were fearful this would lead to your inability to perform the essential functions of your job," Schoonmaker said, "without having a service dog with you when you were performing your job as a conductor, correct?"
"I'm still fearful," Hopman said.
TRIPPING HAZARD
During the day, jurors heard defense experts testify regarding the size of locomotive cabs and the federal regulations requiring unrestricted entry and exit.
Patrick Graham, a chief inspector with the Federal Railroad Administration, explained the layout of a locomotive cab, which typically is furnished with seats for the engineer and conductor and a jump seat. Asked by Torrriano Garland, an attorney for Union Pacific, if any place existed inside the cab where a dog would not pose a trip hazard, Graham said no.
"I see none where any dog could lay up in there," Graham said.
Under cross examination by Katherine Butler, Graham said that Union Pacific has no specific rule barring dogs from locomotives but that any dog would pose a trip hazard, which he said is a violation of federal regulations. Butler then asked about luggage, suggesting that some crew members might bring as many as six bags with them.
"I've never seen that but the way some of these guys pack, that's possible," he said.
"And there's no rule against that?" she asked.
"Correct," Graham replied.
Jay Everette, a general manager with Union Pacific, who was responsible for the denial of Hopman's request, testified that he consulted with the company's medical, legal and safety departments before turning down Hopman's request.
"I didn't believe it would be safe for him, other employees or the general public," Everette said in response to Schoonmaker's question of why the 2017 request was denied. Everette explained that Hopman's duties as a conductor often took him outside of the train, walking alongside the tracks on uneven ballast, often at night and in varying weather conditions.
"I didn't see how that could be safely done with a service dog," he said.
Everette said he did not discuss the matter with Hopman.
"There are certain medical questions that our law department, our medical department handles," he said. "There are personal items and I work through them."
FATAL DISTRACTIONS
Another issue, he said, was the possibility that a dog would cause a distraction that could lead to an accident. He related two accidents, one in Texas in 2004 and another in Arkansas in 2014, in which he said the train crews had gotten distracted, missed a red signal and crashed into another train on the tracks.
According to the National Transportation Safety Board, which conducted investigations into both crashes, fatigue was the likely cause. In the 2004 crash, the NTSB said the conductor had been drinking before work and the engineer had been on the job for 37 of the previous 55 hours prior to the crash and that both were likely asleep at the time of the crash, which killed three people, including the conductor.
In the 2014 crash in Arkansas, the NTSB also cited fatigue as the likely cause after concluding that both the engineer and conductor had fallen asleep. It cited the engineer's chronic obstructive sleep apnea and the conductor's irregular work schedule as factors. That crash killed two railroad employees and injured two others.
During cross examination, John Griffin, one of Hopman's attorneys, challenged Everette on why Hopman was never contacted as part of an assessment to gauge the validity of his request.
"The company knows its obligation to evaluate workers with disabilities and their accommodations individually on their own merit," Griffin said.
"Is that a question?" Everette responded after a brief pause. "It sounded like a statement to me. I didn't hear a question."
"The company knew its obligation to judge a worker with a disability and his or her accommodation on their own individual merit," Griffin said. "The company knew that, didn't it?"
"Yes," Everette said.
"At what point in the entire railroad treatment of this accommodations request was there ever an individualized assessment of Perry and Atlas on their own individual merit?" Griffin asked.
"I don't know," Everette said.
At the conclusion of testimony, Hopman took the stand a final time, telling jurors that inside the locomotive cab, the three seats are mounted on 10-inch pedestals and swivel 360 degrees, allowing room both for a dog and for the occupants to keep from tripping over the dog.
"If I had a suitcase his size it would be fine," Hopman said. "Maybe I should put him in a suitcase."
The trial resumes this morning at 9:30 with jury instructions and closing statements beginning at 10. After that, the case will go to the jury for deliberation.