http://www.kare11.com/news/news_article.aspx?storyid=826687&catid=391
Yep. Just got done reading the article over lunch.
Ouch. This is a black, black eye for BNSF.
Here is the article in the Minneapolis Tribune.
http://www.startribune.com/local/east/64462297.html?page=1&c=y
In everything it says, plus in all of the discussion we had in a long thread on this topic last summer, with all of its references, I have yet to hear any clear explanation of why BNSF is at fault. I have yet to hear convincing proof that the gates and/or signals failed to activate.
The highway patrol claims to have proven that the vehicle could not have gotten into the position where it was hit if it had run around the lowered gate, so therefore, the gate was not lowered. Fair enough, but I don’t believe they proved that the vehicle was where they say it was when it was hit. That evidence depends on determining the precise point of impact on the assumption that it must coincide perfectly with the exact beginning of an exploding debris field that ultimately covered several hundred square feet.
I seem to remember in that thread, we had someone claiming to have served on the jury for the case. Can’t recall if we ever got anything conclusive from his experiences.
Also, something I was going to note in the original post, there are now quiet zones not too far away from where this happened(actually, I can’t remember where this accident happened, so it may be the crossing itself).
Typical liability verdict. The party with the most money is ALWAYS at fault.
It doesn’t sound to me like BNSF is the victim here:
Judge: Railroad engaged in ‘staggering’ pattern of misconduct
By PAUL LEVY, Star Tribune
“The company’s conduct stunned legal experts.”
“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.”
“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.”
"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.”
[quote user=“wjstix”]
It doesn’t sound to me like BNSF is the victim here:
Judge: Railroad engaged in ‘staggering’ pattern of misconduct
By PAUL LEVY, Star Tribune
“The company’s conduct stunned legal experts.”
“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.”
“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.”
"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.”
http://www.startribune.com/local/east/64462297.html?page=1&c=y
I have no law experience but I have never heard of a judge adding to an award (any Mn lawyers here?). Usually judges reduce awards. We really need more information on what BNSF did or did not do. Since this was a fatal accident does anyone know if NTSB jurisdiction could have been invoked and could that have delayed turning over any information to state police?
If these extra money awards that the judge awarded were because of BNSF “omissions or lying on depositions” then evidence of these items will probably be turned over to some type of prosecutor. If there is sufficient evidence of BNSF employees “non ethical conduct or covering up” including BNSF attorneys then there may be criminal charges filed.
One important item are the listed procedures that are to be taken at any accident. These will be laid out in the incident investigation manual contents that BNSF had at the time of the accident. Probably the manual has been extensively revised or soon will be revised.
$3M of it was awarded for the families’ time, due to BNSF allegedly delaying legal proceedings for up to a year, while the other $1M was for legal proceedings.
Here is a link to the other thread from last summer. The person named, “Informed” who claimed to have witnessed a large part of the trial, contributed some insight starting on page 5.
The Judge’s Sanctions Order can be found by clicking on the link below. In all seriousness, criminal charges need to be pursued in this matter.
http://www.docstoc.com/docs/13307821/BNSF-Sanctions-Final-Draft
Reading the link provided by BlueStreak1 :
http://www.docstoc.com/docs/13307821/BNSF-Sanctions-Final-Draft
One has to wonder if the shear incompetence of the Signa Maintainer was designed to protect his eminent departure to retirement; possibly, the tact taken by the BNSF legal team smacks of an approach orchestrated by a “Katzenjammer Kids” (the Wilhelm Busch,cartoon) scripted episode. It seems, almost to be a comedy of errors comitted by the Marx Bros. [X-)]
I would suspect that as previously suggested by another poster, the BNSF is/or has rewritten its manuals regarding the specifics of handling data downloaded in the aftermath of such a terrificly tragic episode. At the very least they are/or should be examining on-going legal strategems for this type of case senario. Not to mention allowing some of its staff legal eagles the opportunity to find other career opportunities.[2c][soapbox]
Well to spin it the other way, if may be that the assumption was made that BNSF would have saved the evidence if the evidence had been in their favor. So the fact that some evidence was destroyed shortly after the accident by BNSF leads one to believe the evidence had to show some negligence or failure on BNSF’s part.
Your point is valid. A destruction of evidence certainly suggests a cover-up by the guilty party. I have printed out the entire 45-page document, and am reading every word, but I
It really is a shame that there was no NTSB investigation, but there wasn’t, at least that I can find. They do not, after all, have the money nor the time to investigate every railroad crossing boo-boo. The reason it is a shame is that the NTSB is pretty good in the impartiality department, something which, regrettably, I do not find to be the case otherwise – and it would be nice to know what really did go wrong, so as to see what might be done (if anything) to reduce the chance that it will happen again…
How’s this for a speculative scenario.
When the track forces were working on the tracks that day (we are not told the nature of the work) it caused the crossing warning system to operate. Track circuits might be disconnected, or work equipment created an occupancy. To avoid the need to flag road traffic it is not unknown for maintainers to make minor adjustments to the wiring to avoid unnecessary operation of the lights, bells and gates. Indeed, I think this is fairly common practice at a major crossing unless the work is of short duration. It is the safer procedure if trains are still running on other tracks and their automatic circuits can remain fully operational.
Naturally everything has to be restored and checked once the track work is complete. Unfortunately we are all human; perhaps it was a long day or maybe some other railroad or personal issue required urgent attention. Somehow the restoration was bungled or incomplete. If proof existed, it might be grounds for a charge of criminal negligence causing death against the person(s) responsible, the same ones who were also involved in the quick disappearance of that key piece of evidence. But this is just a fairy tale, even if not everyone lived happily ever after. The reality is probably different but will never be known.
There was a sideswipe in t
Well, perhaps. Perhaps not. At the risk of offending some of my friends who are litigation lawyers, I would remind all and sundry that the purpose of litigation is to win a case; it is always nice if the truth is uncovered at the same time, but that isn’t the objective of the exercise, and it doesn’t always happen. And clearly a litigation lawyer’s objective is to win the case for his or her client – and so is the objective of the experts the litigation lawyer hires (I know, I’ve been one quite a number of times). One is obliged to stick to the truth in what one says – but unless one makes a very stupid mistake, one is not obliged to mention aspects of the truth which are damaging to one’s client. Believe me. Further, while experts are not supposed to speculate, lawyers can and do – so long as they don’t say anything which they know to be false.
I am not trying to defend BNSF, nor am I trying to defend the folks who found themselves on a railroad crossing at the same time as an oncoming train – for whatever reason. Rather, I would like to know what happened, so as to prevent it from happening next time. The NTSB – and related organizations in many western countries (Canada’s TSB, the UK’s RAIB, etc.) are experts at figuring that out. It’s their job. And they can often do it despite missing or partial data, as appears to be the case in this instance. While they may, and often do, issue safety regulations, to quote one of those organizations,
" Our purpose for investigating an accident or incident is to improve the safety of the railways, and to prevent further accidents from occurring.
We achieve this by identifying the causes of accidents and other aspects that made the outcome worse.
Our investigations are entirely independent and are focused solely on safety improvement - we do no
Will all be overturned on appeal. Luckily our justice system makes up for zealous judges and juries with appeals courts that ask reasonable questions and only accept logical answers.
I read most of the 45 page Memorandum - enough to get the flavor of what was going on. I’ll probably wind up regretting speculating about this, but the facts and the judge’s recitation and analysis are pretty compelling. So:
Q: “What dog didn’t bark yet ?”
A. Sanctions against BNSF’s trial defense counsel - they are often imposed simultaneously. Not only was the employee a rogue, but the pattern of deceit and misrepresentation during the discovery phase points at BNSF’s attorney as well - unless he was really ‘led down the primrose path’, or was governed by client instructions - see below. But conduct like that = obstruction of justice risks suspension or disbarment.
Note that not far into the Memorandum, the judge points out that BNSF had substitute counsel representing it in the motion for sanctions.
Q: Why do you think that happened - because BNSF was thrilled about the trial result ?
A. No - it was damage control.
Now here’s a couple of loaded questions to ask BNSF’s General Counsel at next year’s stockholder’s meeting:
Q-1: “Were you aware of or did you direct the actions of defense counsel in this case ?”
If yes, you should resign immediately for breach of fiduciary duty in costing the company that much money.
If no, you should also resign immediately for failure to monitor and control the outside counsel that it is your duty to hire and supervise. And by the way:
Q-2: “Why have you not already instituted a legal malpractice/ professional negligence/ intentional tort claim against that attorney for that conduct ?”
Or - 'If he warned you against that conduct - see response to question Q-1 above."
It would have been a great case study for the advancement of Operation Lifesaver, but someone had to tamper with evidence and it’s totally lost now.