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Judge finds BNSF railroad guilty of misconduct
(The following story by Mandy Moran Froemming appeared on the Coon Rapids Herald website on October 21, 2009.)
COON RAPIDS, Minn. — Last week’s court ruling found that Burlington- Northern Santa Fe Railroad manipulated evidence in an attempt to cover up its role in a 2003 accident that killed four young people in Anoka.
In a decision delivered last Thursday, Judge Ellen Maas ruled the railroad was guilty of misconduct during the 2008 jury trial.
“The breadth of BNSF’s misconduct is staggering, beginning within minutes of the accident, up to and through the trial,” ruled Maas, a Washington County District Court judge who was previously chambered in Anoka County, where the trial was heard.
The misconduct included the loss, destruction and fabrication of electronic and physical records, the failure for BNSF to follow its own policies for accident investigation and coordination with law enforcement, interference with the plaintiff’s access to witnesses and the accident site, according to Maas, who also said that BNSF employees provided misleading facts in depositions, sworn affidavits and trial testimony.
On Sept. 26, 2003 Brian Frazier’s Chevy Cavalier collided with a westbound freight train at the Ferry Street crossing in Anoka.
Last year an Anoka County District Court jury found BNSF 90 percent at fault for the accident that killed Frazier, 20, of Newport along with Bridgette M. Shannon, 17, of Ramsey, Corey E. Chase, 20, of Coon Rapids and Harry J. Rhoades Jr., 19, of Blaine.
The eight-person jury returned a verdict totaling $24 million – $6 million for each of the crash victims’ families.
Chase, Frazier and Rhoades were all graduates of Blaine High School, while Shannon was a senior at Anoka High School at the time of the accident.
The plaintiffs followed with accusations that BNSF had tampered with evidence, along with coercing and paying witnesses.
“What we were hoping for was a clear message that this conduct cannot happen,” said Bob Pottroff, who represented all four of the victims’ families in the case. The Kansas-based attorney specializes in railroad litigation.
Pottroff called the acts of BNSF “pervasive” as they hid, destroyed or altered physical evidence crucial to the case. He also said BNSF provided false information to the court, while perjuring and paying witnesses.
Pottroff said the verdict sends a clear message about the abuse of the legal process.
“No matter how big a corporation is and no matter how manipulative a corporation can be, if you’ve got the truth on your side – never give up,” said Pottroff.
Pottroff has encountered similar situations in railroad litigation across the United States, he said.
The families of the four young people killed in the crash have maintained that the crossing gates and warning devices were not functioning properly at the time of the collision, while BNSF argues that they were.
“We continue to believe that...the occupants went around the gates and warning devices at this grade crossing,” said BNSF spokesperson Suann Lundsberg in a statement from the railroad on Monday.
According to the judge, the data from event recorders that monitor the speed of an approaching train and ensure that there is adequate warning time at the crossing grade were not free of tampering.
Maas has ordered BNSF to pay $4.1 million in damages to the families of the accident victims over and above the jury’s verdict.
“There is no getting around the fact that four young adults were killed in an accident involving a BNSF locomotive at a railroad crossing,” Maas ruled. “BNSF should have taken reasonable steps to preserve evidence related to the Ferry Street crossing. Many of these lost, misplaced, destroyed and selectively preserved items of evidence were critical to this case.”
Maas said the court was not convinced that the destruction of evidence was part of BNSF’s regular recycling of computers containing documents and records.
“This was not a malicious intent to hide evidence,” said Lundsberg on behalf of the railroad. “BNSF employees could have done a more thorough job of documenting that the gates and lights were properly activated.
“Unfortunately, this court was focused on a field employee who failed to follow procedures at the time.”
Maas said she did not believe the misconduct was a result of coincidence, honest mistake or legitimate business practice on behalf of BNSF.
“Since this accident six years ago, BNSF has gone to great lengths to prevent future human error in the handling of evidence,” said Lundsberg.
Those safeguards include the addition of 3,000 locomotive cameras to witness and record these types of incidents.
According to Lundsberg, the Minnesota State Patrol’s investigation concluded the lights and gates were functioning properly at the time of the accident.
In the judicial ruling, it was noted that the State Patrol made its conclusion without seeing information downloads, the event data recorder from the locomotive and access to the locomotive. Maas said BNSF stalled and failed to provide this information to police.
She also said that due to the long lapse of time between the accident and the trial, many witnesses were unable to recall pertinent information.
“If BNSF had responsibly performed its discovery and evidence preservation duties, these witnesses could have been found much earlier in the litigation process and memories and recall most likely would not have been so severely compromised,” said Maas.
BNSF is planning to appeal the decision, said Lundsberg.
Thursday, October 22, 2009
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