• April 24, 2019

It might be fair. It might be unfair. But certain industries and certain businesses within those industries sometimes get reputations for litigation misconduct. For example, there seems to be almost a lore that railroads railroad their adversaries (and courts) in litigation. And the BNSF railroad, in particular, seems to run off the rails from time to time in litigation. (See a few bad results for the BNSF discussed here and here, for example.)

Oops. They did it again (or maybe not?)….

Maybe it’s all a big misunderstanding?

In 2014, a BNSF worker, Mr. Scott Kowalewski, was exposed to something in the Fridley, Minnesota Northtown rail yard that seems to have triggered a respiratory response and worse (reactive airways disease syndrome,
vocal cord dysfunction, posttraumatic stress disorder, and Parkinsonism)

WTF? What was it? What happened? This is precisely the kind of thing that civil litigation is supposed to answer. But there were problems getting answers from the BNSF in Mr. Kowalewski’s lawsuit.

We happen to have had some experience with railroad litigation years ago and we learned the term, “rolling stock,” which might be self-explanatory to many readers. Railcars are on wheels and they do not sit around. We all know that “time is money” and, if you’re in the transportation industry, surely you appreciate and understand that “motion is money.” So herding 11 railcars which are undoubtedly on the move through the U.S., Mexico, and Canada, might be difficult.

Further informed by our passing experience in railroad litigation, we have come to learn that railcar ownership and railroad ownership are critically distinct. In fact, the complex inter-relationships between railcar owners, railcar lessors, railcar customers, and railroads, complicated as it may be, is itself a small part of an enormous web of commercial interrelationships.

With that as background, were BNSF and its lawyers playing games when it suggested that the railroad “believed” it could make 11 railcars available at a certain date and place? Or were they just hedging certainty because of the inherent challenges in herding railcars?

But it got worse for BNSF than just their difficulty collecting evidence for inspection.

Apparently, the Hennepin County District Court Judge (Amy Dawson) also found that that “BNSF spoliated evidence by failing to inspect and preserve evidence at the scene and by destroying or intentionally failing to secure field and yard audio-video evidence, and documents associated with the 11 hydrocarbon cars.”

And then it seems that BNSF really sealed the deal in terms of the court’s giving the railroad the benefit of the doubt (because who hasn’t innocently and absently-mindedly lost track of eleven railcars and the related paperwork, written over or deleted rail yard surveillance video, and that kind of thing?).

BNSF is alleged to have produced a version of their “claims manual” that had been revised after the incident rather than the operative version at the time of the incident. AND BNSF is alleged to have “initially identified a different employee as the hump tower operator on the date of exposure, and disclosed the actual tower operator only after reaching a confidential settlement with him.” (The “hump tower” is like an air traffic control tower at an airport, an elevated vantage point of the rail yard to help facilitate movement in the railyard.)

We will be interested to see whether the BNSF seeks Minnesota Supreme Court review. It is possible that the Plaintiff and Plaintiff’s lawyers would be fine with that because the statutory interest would keep on climbing and we don’t see any strong or compelling bases for any such further appellate review. Time (as it often does) will tell.

Post-script: H/T to Minnesota Litigator reader, KS, for the nomination of this Minnesota Court of Appeals decision for a Minnesota Litigator blog post.

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