• February 1, 2013

In June, 2009, a Chicago Central Pacific freight train (then owned by Canadian National (“CN”)), dispatched by Illinois Central (then owned by CN) on CN track derailed in Rockford, Illinois.  There had been a “wash-out” when water had eroded the support structure under a portion of the track.  As a result, an ethanol tank car exploded into a deadly fireball.  The Tellez family, husband, wife, and 17 year-old pregnant daughter were in their car at the railroad crossing.  Ms. Tellez left the car to escape. She was killed, literally swallowed in flames.  The rest of her family survived with severe injuries.  Her daughter, in a medically induced coma for two months, lost the baby she was carrying in the following weeks.  The baby was born alive but died soon after.

Mr. Tellez retained the famed plaintiffs’ personal injury law firm of Corboy & Demetrio.  Who did the railroad defendants hire?  Twin Cities veteran railroad derailment defense litigator, Dave Potter (along with his former Oppenheimer partner, Jim Fletcher, for one of the defendants).  That was a very good call.

Superior, Alberton, Weyauwega, Bourbonnais.  These were all locations of serious railroad derailments where railroads or other players on the defense side called on Dave Potter for legal help over the previous fifteen years.  All told, Potter has given legal counsel in about a dozen major derailments and this is only a fraction of the work Potter has done for railroads and others in the railroad industry (railcar manufacturers, etc.) across the country in the past twenty years or so.

How did this happen?  How did Dave Potter come into this niche expertise?

As a young lawyer, Potter joined the Twin Cities law firm of Oppenheimer Wolff & Donnelly, where he has practiced ever since.  He was interested in antitrust law.  He soon learned that “antitrust” and “courtroom” are not ideas spoken in the same sentence very often.  That is, antitrust lawyers do not try cases.  So Potter, wanting trial experience, checked in with Oppenheimer partner, Don Engle, former General Counsel of the Burlington Northern Railroad about getting involved in railroad litigation.  Burlington Northern, previous headquartered in St. Paul, moved to Fort Worth, Texas.  Engle moved with the railroad for a few years but then decided to come back home.  This was the beginning of what became very deep connections and expertise in railroad litigation for Dave Potter.

How did the Tellez case play out?

While the railroad denied any legal liability for the catastrophe, with the benefit of 20/20 hindsight and post-accident investigation, it was clear that the railroad faced potential liability.  You can be sure that no railroad wishes to go to trial with a case like the Tellez claims in the Rockford derailment.  Even aside from the high risk of multi-million dollar liability, defendants are people too.  More often than not, like almost all of us, they want to do the right thing.  So the railroad defendants settled the claims of Mr. Tellez and the estate of his wife.

But a young lawyer took on the case of the Tellez daughter (and her deceased child) and he sought $43 million from the jury.  Potter and Fletcher had a five-week trial (five entire days spent on voir dire of the jury) in Illinois and, when the jury awarded the plaintiffs $12 million, the railroad client celebrated this as a tremendous victory.

I asked Potter if, as an openly gay lawyer, he has always been accepted when the railroad industry does not have a particularly stellar reputation when it comes to progressive social views or embracing diversity?  The railroad industry has a long and deep history of rough hetero-male dominated culture.

Actually, Potter pointed out, he has generally been accepted and well-received by many in the railroad industry throughout his career.  In fact, years ago when he started doing railroad work, it was women lawyers who were particularly challenged by the clients.  Some clients simply could not accept that women lawyers were up for the job.  Potter, on the other hand, proved his abilities all along the way, and his private life was generally a non-issue.  From time to time, aspects of one’s private life come up in the close quarters of the attorney-client relationship and relationships with different clients have had different degrees of openness and comfort.  Some have welcomed Dave Potter and his partner, Darwin Lookingbill, into their homes and families.  Some are invited to Dave and Darwin’s upcoming wedding.  Other clients might not be so welcoming. This has called from some discretion.  But, fortunately, Potter has not encountered bigotry or intolerance in his very successful career in railroad law.

Potter knows of a transgender lawyer, however, who found that not everyone in the railroad industry is ready to accept her as one of its lawyers.  Some in the industry welcomed her after her transition and continued to rely on her years of experience and expertise.  Most, however, could not and she is no longer able to find work as a lawyer.

We have come a great distance but the journey is long and maybe never over.

Post-script: By sheer coincidence, Bill Wernz’ February 2013 Ethics Update, of which email notice was sent today, discusses Minnesota’s long history of railroad litigation at some length (in the context of the ethics of “solicitation,” a.k.a., getting clients).

Previous profiles: Jim Behrenbrinker, civil rights/excessive force cases,Eric Cooperstein, “ethics maven“,  Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator,  John Halpern, collections, Elliot Olsen, foodborne illness litigation.

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