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Steve, Please comment (BNSF Anoka Fatalities)

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  • Steve, Please comment (BNSF Anoka Fatalities)

    Steve, the following was posted by Sooliner in the BNSF forum.
    I would be interested in hearing your comments on this.............

    I think whats really sad is that when ever we hear "big fines" imposed by the courts onto the BIG class 1 railroads, nobody usually ever recovers the money. If i break the law and am caught and i have to pay ALL of it now or go to jail when the judge passes sentence. The BNSF will tie this up in appeals court for years until the agree to settle for pennies compared to what the original judgement amount was set at. I bet you the BNSF never pays a dime of it. Appeals after appeals after appeals, until some judge 10 years from now rules in the BNSF's favor and our justice system is too tired of this case to push it any further. Shit the BNSF will spend probably millions just to keep fighting it, as long as they don't have to pay out a dime to anyone.
    Last edited by nsrlink; 03-30-2012, 08:30 AM.

  • #2
    Spoliation on the Part of BNSF

    Dear RRob-

    The issue here is spoliation of evidence. Spoliation is the destruction of evidence, either negligently or intentionally, by a party [either plaintiff or defendant] of evidence that the party should have a reasonable belief that the evidence will be relevant in either a lawsuit that will reasonably be filed in the future or is currently filed.

    It is important to point out that spoliation law is governed by the particular state wherein the case is filed. Some states treat spoliation as a separate cause of action and others treat spoliation as jury instruction that the missing evidence is to be "presumed" by the jury that it would be against a particular position being taken by the spoliating party.

    It is also important to point out that the sanctions levied by a judge do not have to be in the form of monetary sanctions. For instance, the judge could strike a particular portion of a witness from testifying on that subject; the court could strike a complete witness from testifying; the judge could strike a particular defense; the judge could strike the "Answer" of a defendant and enter a liability judgment for the plaintiff and then have a trial on the damages portion of the case, etc. In other words, there are a myriad of sanctions the court can utilize when spoliation is found. Obviously, the more intentional and egregious the conduct, then the more tougher the sanction. However, to be upheld on appeal, the assessed punishment should be tailored to fit the conduct.

    With this as a backdrop, I would like to set forth the story in this particular BNSF case:

    Burlington Northern Santa Fe Corp. engaged in a "staggering" pattern of misconduct aimed at covering up its role in the deaths of four young people whose car collided with a train largely because a crossing gate wasn't working properly, a Washington County judge declared Thursday.
    To punish the railroad, which allegedly began destroying evidence within minutes of the 2003 accident, Judge Ellen Maas awarded $4 million to the victims' families and their attorneys. The award comes on top of $21.6 million from a jury that placed 90 percent of the blame for the accident on Burlington Northern.
    "When encountering conduct as egregious as that of BNSF, this court ... has a duty to impose sanctions of a sufficient severity in order to deter future misconduct of the same caliber,'' Maas ruled.
    A westbound freight train, traveling at 59 miles per hour on Sept. 26, 2003, collided with Brian Frazier's car as it crossed the tracks around 10 p.m., at Ferry Street, just north of Hwy. 10 in Anoka. Burlington Northern said the driver ignored a warning signal and tried to beat the crossing gate, but a jury concluded the crossing gate wasn't working properly.
    Maas found that the railroad company lost or fabricated evidence, interfered with the families' investigation of the accident and "knowingly advanced lies, misleading facts and/or misrepresentations" in order to conceal the truth.
    The railroad, Maas noted, "has attempted to explain away each instance of misconduct as either an innocent mistake or a mere coincidence. ... This court is not persuaded."
    "There's no precedent for this," said Allan F. Shapiro, an attorney for the family of one of the victims. "What Burlington Northern did undermines the rule of law. It's a black eye to American ideals. That's why it's so offensive to see this."
    Tim Thornton, a Twin Cities attorney representing the railroad, declined to comment.
    The company's conduct stunned legal experts.

    Corporate defendants rarely lose documents or tamper with evidence pertinent to investigations, said Steven Duke, a professor at Yale University Law School. "It rarely surfaces because they'd be caught,'' Duke said. "This is a very unusual allegation."
    In interviews, Minnesota court officials could not recall another major Minnesota case that involved allegations of such pervasive misconduct. Charges of tampering are extremely rare, Minnesota courts spokesman Kyle Christopherson said. Since 2000, there were just two years in which there were more than 10 charges of tampering in the entire state court system, with the high of 17 such allegations in 2002, Christopherson said. He didn't think any of those cases involved a death.
    Another first for Minnesota courts: Two witnesses, neither of whom were experts or at the scene of the accident, were paid thousands of dollars by an attorney hired to help Burlington Northern fight the wrongful-death verdict.
    Bob Pottroff, a Kansas-based attorney representing the families, said Burlington Northern's conduct is "unprecedented."
    "We can't find a parallel case with so many levels of abuse," said Pottroff, a national expert on railroad cases.
    The jury award of $21.6 million was also historic, ranking as one of the highest jury awards ever in Minnesota.
    The families asked Maas to award an additional $45 million in sanctions against the railroad for its attempt to perpetrate "one of the largest miscarriages of justice" in American history.
    Maas said that characterization goes too far, but she agreed the company's conduct placed the families at a "tremendous disadvantage," forcing them to hire expensive experts to cut through the "fog" created by the railroad's abuses. She said the railroad's misconduct delayed legal proceedings for at least a year, and she awarded the families $3 million for their time. She also ordered the railroad to pay nearly $1 million for the families' legal expenses.
    Among the railroad company's biggest blunders:



    Losing or destroying a computer disk that recorded the train's speed and other factors on the night of the collision. The disk would have revealed whether the victims were given adequate warning time at the crossing. A laptop containing the data was also destroyed.
    The railroad's failure to disclose its awareness of previous signal problems at the crossing.
    The destruction of records relating to work done on eight feet of track at the crossing.
    "It was revealed that a work gang had, in fact, worked on the approach track at the Ferry Street Crossing the day before the accident and that, shortly after the accident, the signal system had been revised,'' Maas said in her ruling.
    Family members said they couldn't believe some of the tactics the railroad company used in the case.
    "We lost the worst thing possible -- we lost our kid," said Mike Frazier of Ham Lake, whose son Brian died in the crash. "Did they really have to go to these extremes?"
    Also killed in the crash were Bridgette Shannon, of Ramsey; Corey E. Chase, 20, of Coon Rapids, and Harry Rhoades, Jr., 20, of Blaine.
    "It still makes us so angry that they've played the games they've played," said Denise Shannon, Bridgette Shannon's mother. "The only good thing that's come as this has dragged on is it's given us focus. They need to be held responsible. They've definitely not played by the rules."
    ----------------------------------------------------------------------------------


    So, as you can see, through some great lawyering on the part of the plaintiff's lawyer coupled with some obvious lying and destruction of evidence on the part of BNSF, the judge had had his fill of BNSF's conduct. I believe these sanctions will be upheld on appeal and the plaintiffs will, indeed, see these monies.


    I hope this answers your questions.


    Steve Gordon
    Gordon & Elias, L.L.P. - FELA Lawyers
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365
    800-773-6770

    Comment


    • #3
      But the intent is punitive, yet NO RAILROAD will mend its ways even if dunned with an award that bankrupts them. They are evil to the core, and they will do as they please, and no cost is too great to keep them from that. So these moneys are so small as to be folly, and it will be the railroads game to spend twice as much to fight them, and then if still forced to pay they will go on doing as they always have. Incorrigible is too mild a word.
      sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

      Comment


      • #4
        Steve, thanks for the informative and interesting reply, but I was wondering about the comments on appealing for years until they win and never having to pay?

        Comment


        • #5
          Originally posted by rrbob View Post
          Steve, thanks for the informative and interesting reply, but I was wondering about the comments on appealing for years until they win and never having to pay?
          A party has a right to appeal at least once. After that, the appeal may be discretionary to the appellate court above the first appellate court. In 99% of the cases, the appellant (person or entity appealing) must post a supersedeas bond which is a bond for the amount of the judgment AND, if they lose the appeal they must pay the judgment PLUS any interest that will have accrued during the time of the appeal.
          Steve Gordon
          Gordon, Elias & Seely, L.L.P.
          FELA Lawyer
          FELA Lawyer Blog
          Serving Injured Railroad Employees Nationwide
          Call for a FELA Lawyer 24/7/365
          800-773-6770

          Comment

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