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Continued: COLLISION IN THE COURTS

First of a four-part series

Last fall, a Minnesota judge delivered a stinging rebuke to America's second-largest railroad.

Judge Ellen Maas ruled that Burlington Northern Santa Fe Corp. engaged in a "staggering" pattern of misconduct that obscured what happened in a collision at an Anoka rail crossing where four young people were killed in 2003.

As punishment, the Washington County judge imposed a hefty $4.2 million fine on the company, declaring that it tampered with key evidence, interfered with investigators and lied under oath.

download pdf file See judge's order "BNSF has attempted to explain away this misconduct in piecemeal fashion by attributing much to inadvertence, coincidence, honest mistake and/or legitimate business practices," Maas wrote last year. "This court is simply not persuaded."

Maas said she hoped to prevent future misconduct, but she's not the first judge to take action against the railroad, which controls 1,600 miles of track in Minnesota.

Over the past decade, court records show, judges around the country have disciplined BNSF after finding that the company or its lawyers broke rules aimed at ensuring fair legal proceedings in 13 cases involving collisions or workplace injuries.

Judges cited the company for a range of actions, including destroying evidence and other obstructive discovery practices, records show. In four of those cases, judges declared mistrials or ordered new trials after concluding the company or its attorneys engaged in misconduct.

In eight other cases dating to 2000, BNSF employees or attorneys acknowledged the loss of evidence or other actions that could have been classified as misconduct, according to depositions and other court records. Judges in those cases didn't address that conduct, or the cases settled after those actions became known, court records show.

The Star Tribune and ProPublica, a nonprofit investigative reporting organization, identified those 21 cases after reviewing about 200 lawsuits against the railroad in the wake of the Anoka ruling.

Top officials at BNSF strongly deny the company has attempted to thwart the legal system in lawsuits over deaths or injuries related to the railroad's operations.

"It is highly misleading, unfair and plain wrong for the Star Tribune to pick these few instances to paint and malign BNSF as a company with a corporate culture of failing to follow rules of judicial conduct," the company said in a written statement to the newspaper.

In a three-hour interview this summer with the Star Tribune, BNSF officials said mistakes were made in some court cases. But they insisted the company has never intentionally taken steps to gain an unfair advantage over its opponents in state and federal courts.

Charles Shewmake, the company's general counsel, said the railroad is committed to the "highest ethical principles at every turn, never compromising on safety, never compromising on ethics, never compromising on our integrity."

Judges have called out BNSF for its conduct in courts from Missouri to California.

In the Anoka case, BNSF appealed Maas’ ruling for misconduct. The Minnesota Court of Appeals declined to overrule the judge’s findings on misconduct, but ordered a new trial to determine liability for the collision. At the request of the families, who were awarded $21.6 million by a jury in 2008, the Minnesota Supreme Court recently agreed to review the order for a new trial.

In Montana, Judge Ingrid Gustafson nullified a jury verdict favorable to BNSF in 2008 when she found the railroad withheld crucial evidence in a case involving an injured BNSF employee. "This court is very reluctant to disturb a jury verdict, has not done so previously and would not now do so without the firm conviction that plaintiff did not receive a fair trial," Gustafson said in her ruling.

BNSF said the late production of evidence "was purely an oversight and not intentional.''

In Texas, a district judge declared a mistrial in 2000 after concluding the company "concocted" evidence in the trial of an engineer killed when two trains collided in the fog. BNSF said the judge had a "really bad day'' and erred in his ruling.

In Washington state, a federal judge sanctioned BNSF two years ago for discarding equipment that a worker tripped over in a Spokane rail yard, causing injuries to his knee. The judge told the railroad's lawyers that he would instruct the jury that it could draw an "adverse inference'' based on the company's "failure to preserve physical evidence.'' The case settled before trial.

BNSF said it preserved the scene through photographs "but did not preserve the brake shoe.''

In a Colorado lawsuit, BNSF track supervisor Buddy Mueller said under oath in 2003 that his crew was instructed to flatten a dirt bank at the site of an accident three days after a BNSF train smashed into Mary Garcia's truck, killing her and severely injuring her daughter.

In its lawsuit, the Garcia family blamed the railroad for not previously removing visual obstructions. Mueller said his crew used a backhoe to level the site because his boss was there on the night of the accident and "he felt like it might have been an issue," according to Mueller's deposition.

The parties agreed to settle the case less than two months later, before it went to trial. In response to questions from the Star Tribune, the railroad said Mueller's crew was not there to "cover up evidence" but to ensure the "safe and efficient movement of trains."

In a statement, the railroad said, "It would be highly inaccurate and damaging to report that Mr. Mueller suggested that his boss or his crew leveled the site to cover up evidence that may have been relevant to the death and injury.''

Shewmake said litigation is an adversarial process where both sides try hard to win. Occasionally, Shewmake said, attorneys on both sides break the rules. He compared the company's litigation record to World Cup soccer.

"Some of the greatest athletes in the world competing at a high level and sometimes they get yellow-carded, 'cause they're competing so hard,'' Shewmake said in an interview. "Were they trying to be malicious? Were they trying to hurt somebody? I don't think so. When you get in this adversarial mode, I think both sides on occasion will get yellow-carded."

A $100 million expense

BNSF has deep roots in Minnesota.

From his Summit Avenue mansion in St. Paul over a century ago, transportation pioneer James J. Hill built the Great Northern Railway, which in 1970 merged with St. Paul-based Northern Pacific and three other railroads to form Burlington Northern. The company moved from St. Paul to Fort Worth, Texas, in 1984. After adding the Atchison, Topeka & Santa Fe railroad in 1995, the company changed its name to Burlington Northern Santa Fe Corp.

Running as many as 90 trains a day in Minnesota, BNSF controls roughly one-third of the long-distance rails that crisscross the state. Motorists encounter BNSF trains at more than 1,300 grade crossings, most of which are not equipped with warning lights or gates, state records show. The company has sprawling rail yards in Minneapolis, St. Paul, Duluth, Willmar and Fargo/Moorhead. It employs more than 1,600 Minnesotans.

With freight moving across 28 states, the railroad generated $14 billion in revenue last year. The company says coal hauled by BNSF powers one of every 10 homes in the nation. Earlier this year, investor Warren E. Buffett purchased BNSF for $26.5 billion in what he called an "all-in wager on the economic future of the United States."

Accidents and on-the-job injuries are a significant expense for the railroad. From 2007 to 2009, BNSF's insurance subsidiary paid more than $100 million per year to resolve legal claims against the railroad, according to the company's last public financial report in 2009. BNSF said that figure does not include the railroad's legal expenses.

BNSF declined to say how many lawsuits were filed against the company over collisions and workplace injuries, but it said civil judgments were issued in 118 cases from 2001 to 2010.

Over the past decade, more than 500 people have been killed and nearly 1,700 injured in about 4,100 accidents involving a BNSF train or crossing, according to the Federal Railroad Administration.

Shewmake said BNSF has spent hundreds of millions of dollars to reduce the number of accidents at railroad crossings. By closing as many as 450 crossings a year and making other improvements, the railroad has reduced its rate of crossing accidents by 70 percent since 1995, he said.

"The fewer crossings, the fewer opportunities there are for risk-taking behavior and the fewer opportunities there are for mistakes,'' Shewmake said.

Evidence gets lost

In the 13 cases that led to misconduct findings by a judge, BNSF was primarily cited for withholding or destroying evidence.

Sometimes, records show, the company didn't provide documents until shortly before a trial, even though opposing attorneys had been seeking the documents for years.

In Kansas, lawyers for an injured BNSF worker accused the company of removing evidence from the accident scene after Justin Belisle's midsection was nearly severed by a passing train three years ago. The brakeman lost his right leg at the hip and suffered permanent damage to his internal organs.

A BNSF supervisor had said in a job briefing that he would keep an oncoming train out of the area, two crew members testified. BNSF disputed the crew was ever told the train would be held and blamed Belisle for stepping into the train's path.

In court papers, Belisle's attorneys argued that the accident site was "scrubbed clean" by BNSF, hurting reconstruction efforts.

The railroad said it failed to locate Belisle's two-way radio the night of the accident and then lost track of it after someone -- the railroad doesn't know who -- found it and turned it in. Belisle's attorneys said the radio's location could have helped experts figure out where the worker was struck, a central point in the legal dispute, court records show. The railroad also gave conflicting accounts on whether its workers marked the spot on the tracks where the train stopped that night, another vital piece of information for reconstructing the accident, court records show.

BNSF agent David Anderson said in a deposition that his boss asked him not to visit the scene that night. When asked if it's important to reach accident scenes quickly to preserve evidence, Anderson said, "Yes," according to a transcript of the interview.

download pdf file See pretrial order In a 2009 pretrial order, the judge gave Belisle's attorneys leeway to raise the issue of mishandled evidence in front of a jury. BNSF denied destroying or altering any "relevant evidence" and asked the court to forbid Belisle's lawyers from suggesting to jurors that it had done anything improper.

While the decision was pending early this year, the parties settled the case.

"Justin Belisle was involved in a very serious and tragic accident that never should have happened,'' BNSF said in response to the Star Tribune's questions. "BNSF is sympathetic to Mr. Belisle and his family due to the serious injuries he incurred as a result of stepping on/near an active track, which resulted in a train striking him."

download pdf file See judge's order In a Missouri case, the railroad lost a ladder after an incident involving an injured worker. Ralph Early was cleaning windows in a Chicago locomotive shop when he said his ladder collapsed, injuring his back so severely that he required surgery and narcotics for chronic pain.

At trial, BNSF offered another ladder as evidence to demonstrate that the equipment was in working condition. But the judge refused to admit it as evidence after Early testified that the facsimile was in no way similar to the ladder he was using at the time of his injury. In 2003, a jury awarded Early $5.5 million. Two years later, a Missouri Court of Appeals panel upheld the award and said the judge "properly found that admission of this evidence would have been prejudicial to Early."

Railroad officials don't dispute that equipment has sometimes disappeared inadvertently after an accident. Shewmake said the company created an evidence preservation group about five years ago to make sure it doesn't lose or misplace items that may be considered relevant in a civil case.

"We have gotten better at preserving evidence," Shewmake said.

In Montana, where the courts punished BNSF for misconduct in seven cases between 2003 and 2010, one judge found discovery abuses in two separate cases involving injured workers.

download pdf file See judge's order Judge Dirk Sandefur sanctioned the railroad for failing to turn over e-mails and other records, citing what he called a "larger common and recurring pattern" of company misconduct, court records show. In one of his rulings, Sandefur said BNSF's "indignant objections" raised the question of whether the company "purposely concealed or withheld this information" from its own attorneys.

In a written response to questions, the railroad said it withheld the documents for several reasons, including because they were "irrelevant" to the proceedings or because the records were no longer maintained in the ordinary course of BNSF's business.

Shewmake said BNSF has never intentionally misled the courts.

"I can tell you that in the 20 years that I've been in the [law] department, nobody's ever asked me to lie," Shewmake said. "I've never asked anybody to lie. I'm not aware of anybody ever being asked to lie."

Still, Shewmake acknowledged, some BNSF employees haven't always told the truth.

"You've got individual employees, rank-and-file non-management employees, who are trying to protect themselves, protect their jobs, and they misrepresented how fast they were going, misrepresented when they blew the whistle,'' he said. "There are certainly cases like that over a couple of decades. Those employees, if they get found out, they're subject to discipline. OK? We don't condone that."

$114 fine for misconduct

While some courts have rebuked the railroad for its legal conduct, they have rarely imposed large financial penalties on BNSF, court records show.

Until Judge Maas assessed $4.2 million in sanctions against the railroad last year, the largest fine imposed on the multibillion-dollar company for breaking the rules of civil procedure was $27,684, BNSF said in a written statement. In one case, the fine was $114.

The $4.2 million penalty that Maas imposed could be reduced to $1.1 million if the case goes to a second trial and a jury concludes that BNSF was not at fault for the Anoka collision that killed four people.

Judge David Minge, one of three judges on the appeals panel who reviewed the case, said in his dissent that BNSF should not be granted a new trial over a set of improper jury instructions when the company failed to object to those instructions during the trial and when its own misconduct complicated the plaintiffs' case against the railroad.

"We should not allow parties the opportunity to stand by, not object to erroneous jury instructions, and see how the first trial will turn out, expecting that if the result is adverse, the judge's error will enable them to secure a new trial," Minge said in his dissent.

The two judges in the majority disagreed, saying the railroad was denied a fair trial because of the error. They said it didn't matter if the railroad failed to object to the improper instructions at the time.

"BNSF certainly did not allow erroneous instructions that would have led to an unjust result just so that it could later win on appeal," BNSF said in response to the newspaper's questions.

download pdf file See judge's order Three years ago, a federal judge in New Mexico refused to reopen a case against BNSF despite finding that the company acted improperly by tampering at the site of a train collision that killed three people in 2001.

In reviewing the case brought on behalf of one victim, the judge noted that a railroad crew was apparently dispatched to make sure everything was in "working order" before the plaintiff's expert arrived to inspect the railroad crossing. After discovering one of the warning lights was malfunctioning, the crew replaced it. Alleged equipment failure was central to the plaintiff's case.

BNSF did not disclose the fix and denied anything was wrong with the crossing, court records show. The crew's repair, which occurred four years after the accident, came to light after one of the workers was injured during the repair job and sued.

"This court has found clear and convincing evidence that BNSF intentionally engaged in misconduct," U.S. District Judge James Browning said in his order.

However, Browning declined to undo a $30,000 settlement because the plaintiff's lawyer failed to meet the court's "high standards" for proving fraud. The railroad said it had been reluctant to settle the "frivolous" case, noting that the victim never held a job and was allegedly under the influence of cocaine and alcohol at the time of the crash.

BNSF was unable to find documents that explained why the crew was sent to the site, but in a written statement it said the burned-out bulb "was not particularly relevant to the allegations in this case." The railroad also said there is no evidence to suggest BNSF's attorneys were involved in dispatching the crew.

BNSF said it was "concerned" about the judge's finding of misconduct and noted that the company has been working to improve its evidence-preservation efforts. "While with any human endeavor mistakes will occasionally happen, BNSF is committed to minimizing those errors," BNSF said in the statement.

A collision in California

In 2005, according to the court testimony of a senior railroad official, BNSF operated on the premise that there were no dangerous railroad crossings, just dangerous drivers.

The company publicly tempered that position when grave operational errors came to light in a trial over the near-death of a California utility worker.

In December 2001, a BNSF train stretching nearly a mile rumbled toward an ungated private crossing outside Pinole, Calif., a small town northeast of San Francisco. About the same time, Pacific Gas & Electric driver Robert Pietrowski rolled up to the intersection, which BNSF had promised, but failed, to close in response to a request from the city.

Pietrowski stopped and looked both ways, according to a witness statement. But the tracks were curved, making it hard to see oncoming trains.

Pietrowski, 40, didn't hear the train in time to react. His truck flew through the air and spun 300 degrees. He suffered severe brain damage and spinal injuries.

BNSF was faulted by the judge for withholding evidence, leading her to issue orders requiring BNSF to turn over crucial documents and compel company officials to submit to depositions, court records show.

In its defense, the railroad blamed the victim, claiming the accident happened because of Pietrowski's "carelessness and negligence," court records show.

At trial, the company's director of field safety, Robert Roy, testified that motorists caused almost every accident involving a BNSF train or crossing, based on his review of about 500 accident reports a year.

"It's my opinion, and it's the opinion within the industry, that there is no crossing that cannot safely be crossed by a motorist who uses prudent judgment. ... It's the opinion of the company that 100 percent of the accidents that occur are avoidable,'' said Roy, a 33-year veteran of BNSF who later retired.

Crew members claimed they followed the rules and blew their whistle as the train approached the intersection, according to their depositions. However, a railroad safety consultant testified that data from the train's event recorder showed the engineer didn't sound a warning until three seconds before the collision, a federal safety rule violation.

According to that expert, who spent 30 years as a locomotive engineer with Union Pacific, the data showed that the crew failed to sound the horn at nine of 13 intersections they crossed before colliding with Pietrowski's truck. The railroad's lawyer objected to that information, saying it was "irrelevant" to the case, but the judge allowed the testimony, according to a transcript of the trial.

In his closing argument, Pietrow-ski's attorney told the jury that his client no longer remembers being married or the birth of his son.

After weighing the evidence, the jury concluded BNSF was negligent and mostly responsible for the accident. The jury awarded a total of $9 million to Pietrowski, including $2 million in punitive damages. California court officials declined to provide records showing what the punitive damages were for, but a local newspaper reported that the damages were based on a jury finding that BNSF acted with conscious disregard for the safety of others.

In response to the newspaper's questions, BNSF said its actions did not merit punitive damages. "At worst, a BNSF employee may have exercised poor judgment," BNSF said. The railroad said it later reached a confidential settlement with Pietrowski.

In 2005, a BNSF official said the jury's verdict prompted changes in the way the company deals with public safety. Robert Boileau, the assistant vice president who oversees engineering services, testified that the case prompted a new process that requires installation of temporary barricades no later than five days after BNSF agrees to close a private crossing. The company also vowed to inspect and make any needed repairs to 12,000 private crossings, which lack public access and are not maintained by any public authority. The company said it completed that work. Since 2005, BNSF has closed more than 1,600 private crossings.

"We believe the jury has sent a very strong message here,'' Boileau testified in 2005. "We take that seriously."

pmcenroe@startribune.com • 612-673-1745 tonyk@startribune.com • 612-673-4213

  • about this series

  • From Minnesota to California, BNSF Corp. has drawn judicial penalties for misconduct.
  • related content

  • Letter to Star Tribune by Chris Leach, lawyer for train accident victim Justin Belisle

    Monday January 31, 2011

  • Letter to BNSF by Chris Leach, lawyer for train accident victim Justin Belisle

    Monday January 31, 2011

  • A Minnesota judge said BNSF impeded the investigation of a 2003 train collision that killed four people at this Anoka crossing, but the railroad said it cooperated with authorities.

  • Former BNSF employee Justin Belisle, 28, lost his leg at the hip after he was hit by a train while working near a Kansas rail yard. BNSF said Belisle was hurt in a "tragic accident that never should have happened."

  • Justin Belisle's body was nearly severed by a BNSF train. After his attorney complained that BNSF lost and altered evidence, a judge gave Belisle's attorneys permission to raise the issue of mishandled evidence in front of a jury.

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