• February 24, 2015

Photo by Keon McGarvey

Update (February 24, 2015): I note that the railroad filed its notice of appeal this month of the lengthy battle that I have covered for nearly two years now.

Update (January 21, 2015): Your heart can basically stop or explode without warning while you’re driving (justifying a defense of “sudden incapacitation”). So found the jury in Soo Line v. Werner Industries this past October. Too bad for Soo Line, which sued Werner Enterprises for environmental clean-up costs when Werner’s employee Dale Buzzell drove a truck into a train, a tank car full of chemicals, in particular, (and died). The jury appears to have credited evidence that Buzzell suffered an acute cardiac event which rendered him incapacitated moments before colliding with the train. Sr. U.S. District Court Judge David S. Doty (D. Minn.) denied the railroad’s motion for judgment as a matter of law or for a new trial this week.  

Update (September 15, 2014) (under the Subject Line: Does Your Livelihood Have Any Meaning or Redeeming Social Value?): I hope the “subject line” is an exception to Betteridge’s law. We all have to be our own judges on that.

The lawsuit, discussed below in April, 2013, celebrated its second birthday in early May of this year.

This past week Sr. U.S. District Court Judge David S. Doty (D. Minn.) denied Defendant Werner’s motion to bifurcate trial (that is, to split the trial into two trials – first one as to liability and then one as to damages). I get it. I get why Defendant Werner wanted to have the trial in two different phases. And I get why both the Court and Plaintiff Soo Line felt differently about it.

But the question that I would like answered is, “What is so complicated and difficult factually or legally that can justify legal bills clearly in the hundreds of thousands of dollars for this fairly straightforward case?” The history of the lawsuit is a bunch of motions by both sides that have been denied for the most part. In other words, to date, this lawsuit has accomplished barely anything for the litigants but I am sure it has cost them dearly.

Mind you, it would appear that the lawyers on both sides of this case have raised some valid points over the past few years and argued them well (and at length). The question remains, however: is it worth it?

Original post (April 15, 2013) (under the Subject Line: Does Your Livelihood Have Any Meaning or Redeeming Social Value?):  On some days, the civil litigator comes home from work and a significant other, a life partner, asks, “How was your day?” and the civil litigator answers with “the look.”  That is all it takes.  Fire up the blender, or the TiVo, or pour the scotch, or turn on the game; do what you need to do to live to fight another day.

I saw a Paul Krassner, a social commentator and stand-up comedian in Los Angeles about 25 years ago,  do a riff on a guy who panhandled for money on the Venice, California boardwalk.  The panhandler’s performance, his money-making scheme, was to walk endlessly in circles, one foot fixed to a spot, the other foot spinning around this center-point.  Krassner acted out this odd movement on the tiny downtown L.A. stage.

Krassner wondered how it was that a person could think that spinning around in circles somehow deserved to be compensated.  What kind of feat was that?  Then, he said, he thought of his many screen-writer friends in L.A. who made a great deal of money writing screenplays for major movie studios that were shelved and were never made into movies.

Pretty much the same deal, he pointed out.

Too often, the work of U.S. civil litigators can seem to reflect this kind of mindless circling.

On March 31, 2012, Dale Buzzell, a truck driver for Werner Enterprises died when his truck slammed into a Soo Line tank car full of aromatic concentrate.

For the past year, the railroad and the trucking company have been litigating who should bear ultimate financial responsibility for the clean-up costs before Sr. U.S. District Court Judge David S. Doty (D. Minn.).

For the past month, the railroad and trucking company have been fighting over whether the railroad should be able to take the deposition of the trucking company as to its expertise in environmental clean-up.  The railroad wishes to question the trucking company because the trucking company is fighting the railroad, arguing in part that the railroad’s clean-up efforts were excessive and cost too much.  (Memoranda of Law on Werner’s motion for protective order here, here, here.)

Who knows who the hold-out is in this case?  Who knows if one side or the other side is simply being unreasonable or whether there are complexities in the factual or legal issues that simply require $500,000 or more of fees and costs to figure out?

But sometimes one has to wonder whether the daily squabbles about discovery that pervade U.S. civil litigation actually net corrosive and destructive in our justice system (and/or are destructive to the people, the lawyers, who spend their days going around in circles). Sometimes it is hard to imagine how it could be otherwise.

A final thought:  when one party seeks discovery and the other side seeks a protective order that the sought-after discovery is “irrelevant,” isn’t the side seeking the protective order almost taking a self-contradicting position?  (1) If the discovery is irrelevant, why is the other party seeking it?   (2) If the discovery is irrelevant, why not let the other side obtain the information?  These questions are admittedly overly simplistic and rhetorical.  But, in my view, resisting discovery based on a claim of irrelevance alone often seems like thin and easily penetrable analysis.

(April 29, 2013) (still another post in which I question the sense of how some cases are litigated and whether the immense fees and costs can be justified): Nearly ten years ago, Minnesota’s Marvin Lumber & Cedar Company, based in Warroad Minnesota (a.k.a. Hockey Town U.S.A.), noted that windows with Sapa’s organically coated extruded aluminum profiles  allegedly failed at an abnormal rate when used in coastal installations.  About three years ago, Marvin sued Sapa.

Since last October, lawyers for Marvin and Sapa have been fighting over whose experts had competent testimony to figure out the technical issues in this commercial dispute.  Collectively, the lawyers in the case filed eleven motions in limine.  Earlier this month, in a two-page order, Sr. U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) denied them all.

No person will ever know the combined dollars of expert time and attorney time that went into preparing all of these motion papers, responding to them, arguing them, and so on.  (On the other hand, and a prime reason for the extraordinary costs of commercial litigation, in my opinion, is that no person (as most people use the word “person”) will ever actually pay this money, which must exceed $100,000 and may be far more all told.  The costs will be distributed between corporate entities, possibly insurers, and who knows who else.)

The applicable industrial specifications and standard, which are in dispute (the questions being, roughly, whether the product met the standard or not and, if not, did this cause Marvin’s damages?) are six pages long.

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