BNSF cites federal preemption, appeals $21.6 million verdict

(The following story by Paul Levy appeared on the Minneapolis Star Tribune website on June 22, 2010.)

MINNEAPOLIS, Minn. Was the jury that awarded a record $21.6 million to the families of four young people killed in a 2003 train-car accident in Anoka properly instructed that federal railroad-safety regulations preempt state law?

"Federal preemption," Burlington Northern Santa Fe attorney Sam Hanson told the Minnesota Court of Appeals on Tuesday, is "the core of this case."

"After a jury agreed that the railroad's warning gate malfunctioned, leading to the deaths of these four kids, what this case is going to rise and fall on is preemption" if BNSF's lawyers get their way, said attorney Sharon Van Dyck, who represented the victims' families during the 40-minute hearing. "Their argument is the jury should have been given instructions that they're only liable if they violated a federal statute."

A 2008 trial that produced Minnesota's largest-ever liability verdict for the wrongful deaths of minors or young adults and landmark sanctions in 2009 against the railroad for what a judge called a "staggering" coverup has generated an appeal that focuses more on pretrial jury instructions and post-trial witnesses than on whether a crossing gate malfunctioned.

BNSF attorneys told the Appeals Court that an Anoka County jury's "cookie-cutter verdicts" of nearly $6 million each to the victims' families were excessive, as were the $4 million in sanctions levied against the railroad by Washington County Judge Ellen Maas last October.

Hanson said that Maas' failure "to eliminate Minnesota state common law and replace it with federal regulations" when instructing the jury at the start of the trial "entitled" BNSF to a new trial, based on federal preemption.

Witnesses paid after trial

Hanson told appellate Judges David Minge, Lawrence Collins and Thomas Kalitowski that a new trial should have been granted when witnesses came forward several months after the June 2008 verdict and more than five years after the accident. Collins noted that the witnesses came forward only after cash awards were offered. Legal experts believe this may be the first Minnesota court case in which nonexpert witnesses have been paid.

Initially, there were four new witnesses. Jason Beringer, who said he had met with at least one of the victims hours before the September 2003 accident, said he was paid $10,000 by BNSF attorney Megan Ricke. BNSF dropped him as a witness. The company paid Karianne Olson $5,000, although Olson told the Star Tribune she was not near the scene of the accident.

The "two most important witnesses," according to Hanson, were a Coon Rapids police officer and his wife, neither of whom was paid, nor did they ever ask to be paid. Sgt. Kevin Smith and his wife, Colleen, said they were driving northbound on Ferry Street in Anoka and went through the crossing within minutes of the accident that killed Brian Frazier, 19, of Ham Lake; Bridgette Shannon, 17, of Ramsey; Corey Chase, 20, of Coon Rapids; and Harry Rhoades Jr., 20, of Blaine.

The mention of Sgt. Smith's name brought chills and perplexed looks Tuesday to Beth and Wally Chase, Corey Chase's parents and two of the two dozen family members who packed the courtroom. Smith was the police officer who accompanied a member of the Anoka County medical examiner's office to the Chases' door the morning after the accident, to deliver the news of their son's death. The Smiths came forward as witnesses in April 2009.

"I can picture where he was standing that day, around 9 a.m. or so, at our door," Beth Chase said. "Years later, when I heard it's a Coon Rapids police officer that's come forward after all this time, I thought, 'Do you mean to tell me he couldn't remember being in the area of the crossing for nearly six years after coming to my door just hours after the accident?'"

The Court of Appeals has 90 days to make its ruling. If it affirms the previous rulings, BNSF could take the case to the Minnesota Supreme Court, which accepts only 5 percent of civil requests. The company could also take the case to the U.S. Supreme Court.

The accident occurred on Sept. 26, 2003. A westbound freight train, traveling 59 miles per hour, collided with Frazier's Chevrolet Cavalier as it crossed the tracks just after 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 that the crossing gate wasn't working properly.

Wednesday, June 23, 2010
bentley@ble-t.org

http://www.ble-t.org/pr/news/headline.asp?id=30647

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