Two judges rule BNSF mishandled evidence in fatal two-train crash. Railroad says it won the case after judge dropped $10 million in sanctions.
Second in a four-part series
FORT WORTH, TEXAS
The engineer had been dead a few hours when two men knocked on his ex-wife's door.
For all the sympathy they expressed, what Shirley Mann said she remembers most from that conversation 17 years ago is this: Had Randy Mann somehow survived the horrific collision of two trains in northern Oklahoma earlier that morning, the men from the Atchison, Topeka & Santa Fe Railway told her, the veteran engineer probably would have been fired for causing the crash.
"It was a rude awakening," Shirley Mann said.
In a written statement, officials with Burlington Northern Santa Fe Corp. said recently that they were unaware of any such conversation. In 1995, Burlington Northern Inc. merged with Santa Fe Pacific Corp., the parent company of ATSF.
The 20-minute visit set the stage for a bitter eight-year legal battle between Mann's survivors and the railroad over who was legally to blame for Randy Mann's death. It was a high-stakes contest that pitted the railroad's reputation against a family's loss, with millions of dollars in potential damages hanging in the balance.
On that dark winter morning in Denton, Texas, all Shirley Mann knew for certain was that her high school sweetheart, former husband and father of her son was dead, and that it was time to help plan a funeral.
Thick fog blanketed stretches of the Oklahoma prairie the morning of Feb. 21, 1993, as Randy Mann, a burly, gregarious Texan, stepped into the lead cab of a three-engine, 78-car ATSF freight train.
A U.S. Navy veteran, Mann, 43, spent two decades working for ATSF. He loved his job. "What little boy doesn't want to drive a train?" Shirley Mann said.
As lead engineer, Mann's assignment was to haul 10,216 tons of wheat more than 200 miles, from Enid, Okla., to Gainesville, Texas. In the fog, spotting mile markers and signals would be difficult for Mann and conductor Winford Sherrill, who rode next to him that morning.
"You couldn't see a hundred feet in front of you," Sherrill said in an interview he gave a railroad official after the crash. "You couldn't see the road crossings 'til you got right on them."
Mann's train pulled out of Enid a few minutes after midnight. Less than 30 minutes into the trip, Mann passed a distance signal warning of an approaching intersection where two rail lines meet.
The signal was about a mile west of the crossing, which was maintained by Burlington Northern under an agreement between the railroads. It included a yellow warning light, a semaphore arm and a reflective metal sign, all on a wooden post. When Mann saw the signal, he'd know to slow down in case the next light was red.
"He had it -- it was under control," Sherrill testified, adding that the train was already moving slowly because of the conditions.
Out of the fog, Sherrill spotted a light. But it wasn't the yellow of the distance signal. It was the red "stop" light of the crossing's approach signal, just 200 feet from where the tracks intersect.
Mann had to slam on the brakes immediately or the train would have no chance of stopping before entering the crossing, risking a collision if another locomotive was passing by on the other track.
"Big hole it! Big hole it!" Sherrill hollered, using railroad lingo for an emergency braking maneuver.
As the locomotive screeched to a halt, the momentum from two trailing engines and 78 grain cars slammed forward, driving the lead engine a few feet into the crossing.
"What do you want to do now?" Mann asked Sherrill.
Before Sherrill could respond, he heard a train whistle. He looked out the window and spotted a "glow of white stuff" fast approaching in the fog. It was a 44-car Burlington Northern train, coming down the track about 40 miles per hour.
"Get off!" Sherrill shouted.
After Sherrill jumped, the thundering crunch of steel echoed across the countryside.
"I saw a flash behind me, and I looked back and it looked like the engines were going to turn over on me," Sherrill said later. "So I went to crawling and running just hard as I could."
The locomotives were knocked from the rails in a near head-on collision. The stench of leaking diesel fuel was thick in the air.
Sherrill called out to Mann but got no response. Two crew members in trailing engines were OK, but two workers on the other train were injured, including one who was permanently disabled.
A crew member soon spotted Mann's mangled body pinned beneath a railroad tie under the lead locomotive. When asked later if anyone took Mann's pulse, Sherrill said simply: "There was no need."
Within days of the accident, ATSF representatives began calling Mann's ex-wife, offering a quick settlement if the family agreed not to pursue a lawsuit, Shirley Mann said. She said the family decided to hire a lawyer after her ex-husband's co-workers told her they didn't think Randy Mann was at fault for the crash.
Randy Mann's 19-year-old son, Jason, filed suit in 1994, claiming the two railroads were to blame for his father's death. Other family members and Mann's estate joined the suit, filed in Fort Worth. A year later, ATSF filed a counterclaim against family members and the estate that blamed the engineer for going too fast in the fog, running a red signal and causing the accident.
"Mann ran a red signal and caused the collision which caused serious career-ending injuries to the BN crew," BNSF said recently in a written statement. "The company paid significant money to settle the claims of the injured BN crew. In addition, property damage was in the millions."
Within hours of arriving at the crash site, someone discovered that the distance signal wasn't lit because either the battery was dead or the bulb was out. It was a critical find, leading to a two-week suspension for the ATSF worker responsible for the signal. The discovery also raised the central question of a legal battle that would take nearly a decade to resolve: Without the help of a working light, could Mann see the distance signal?
From the beginning, Shirley Mann was convinced he didn't see it. She said her ex-husband was a "bit of a scaredy-cat" who would have been "extra careful in that fog."
Sherrill didn't mention seeing the signal in his first interview with a railroad official, but he later told investigators that he caught a reflection of the train's headlights off the signal's semaphore arm.
"I didn't see it but just a second but I did see it," Sherrill told investigators.
He said Mann called out the signal after he did, as required by the railroad's operating rules. "But there was no more conversation than that," Sherrill said.
Former federal railroad inspector Paul Gouty, an expert for the Manns, testified that it would have been "highly unlikely" for either Mann or Sherrill to spot the signal in the fog. Not only was the light out, but the signal pole was warped and faced away from the track, Gouty said.
At the trial in 2000, however, jurors couldn't look at the signal for themselves. Railroad attorneys told Judge Bob McGrath that it had been removed several years earlier when the crossing was redesigned. But they couldn't find it or offer a definitive explanation for what had happened to it.
"You all knew that that was relevant evidence from at least the time of the accident, right, I mean shortly thereafter?" McGrath asked.
"We knew," said attorney Doug Poole, one of the lawyers who represented BNSF at trial. But Poole said the railroad never thought Mann's lawyers would want to see the actual signal because their experts had already inspected and photographed it.
McGrath wasn't satisfied. He told attorneys that at the conclusion of the trial, he would probably instruct jurors that they could assume the railroad failed to provide the signal because its presence in court would have been "harmful to the railroad."
The next week, the railroad's lawyers introduced what they called a "typical distance signal."
But there were significant differences between the trial exhibit and the device that was lost. One of the most obvious: it had a new, more powerful bulb than a typical distance signal.
As a BNSF employee tried to explain how such signals work, the judge stopped the trial and excused the jurors. The judge warned the witness, director of signal engineering for the railroad, that if he suggested the trial exhibit was identical to the original signal, "somebody's going to jail. Clear?"
Later, after the jury was excused for the day, the witness told the judge that he wiped the reflector surface before the signal was brought into the courtroom.
"It didn't occur to you that by wiping this lens or this reflector clean, you were altering evidence or making it look more favorable to your side's position in the case?" McGrath asked.
"No, sir," the witness said.
After threatening the BNSF employee with jail again, the judge addressed his own duties.
"I have an obligation as a judge to police the evidence that's brought before a jury," McGrath said, according to the transcript of the trial. "I also have an obligation to turn over to the State Bar lawyers that bring evidence to court such as has been done in this case. Do you understand that?"
Three days later, the company's trial lawyers told McGrath something about the new exhibit that disturbed him. Although they had claimed the signal was taken off a route in Texas, attorneys explained that it had actually been pieced together for the trial from the parts of two signals in two states. It also had been stripped of electrical wires, making it look more like the original.
"So we have a completely concocted exhibit, am I correct?" McGrath asked.
"You are correct, sir," said attorney William Floyd, who represented BNSF.
After criticizing the railroad for its "antics and shenanigans," McGrath declared a mistrial. He sent the signal to the district attorney's office as evidence in a possible criminal investigation and imposed a $10 million fine on the railroad. It was the largest financial penalty any judge ever leveled against BNSF for misconduct in a civil case.
"Maybe it's time that a district judge in Fort Worth told the railroad and defendants who act this way how to handle a lawsuit," McGrath said. "Maybe it's time that a district judge in Fort Worth sends a message to defendants who act the way this one has. Maybe it's time for one judge in one place to communicate to all of the judges in other places how this defendant has behaved and how these lawyers have behaved."
In a one-page order, he said he had acted prematurely by not holding a "show cause" hearing to allow the defense to make a case for why sanctions shouldn't be imposed. He set aside the fine and recused himself from the case, leaving the second trial to a new judge.
When contacted by the Star Tribune, McGrath twice declined to comment on the case.
Beth Thornburg, a law professor at Southern Methodist University in Dallas and an expert on Texas civil procedure, said McGrath was clearly within his rights to sanction the railroad.
"Looking at the record, I can certainly see why McGrath believed that they had misbehaved and that it was on a significant issue," said Thornburg, who reviewed court transcripts at the Star Tribune's request. "I didn't read anything in it that said the judge was stepping over the line."
Thornburg said McGrath apparently saw a "pattern" of behavior by the railroad. She said McGrath appeared to give the railroad's attorneys a chance to explain, which could have satisfied the need for a "show cause" hearing.
But when McGrath questioned the integrity of the company's lawyers and used such strong language to describe the company's conduct, Thornburg said, he opened himself to charges of bias that BNSF could have used in appealing the sanctions. That, Thornburg added, was "reason to recuse himself."
Lillian B. Hardwick, co-author of the "Handbook of Texas Lawyer and Judicial Ethics," agreed McGrath should have recused himself. Without taking a position on BNSF's conduct, Hardwick said McGrath broke the rules by imposing sanctions because he failed to provide proper notice or hold a show-cause hearing.
In a written statement, BNSF said the company was not trying to "deceive" anybody with what it called a "demonstrative aid."
"Everybody has a bad day," said Charles Shewmake, vice president and general counsel, who oversees the railroad's legal department. "I know that judge. He had a really bad day."
A year later, the case was retried before a different judge, who denied a pretrial motion by Mann's attorneys to reinstate the sanctions.
"There is no showing that the Defendant tried to pass this exhibit off as something it wasn't," Judge Bonnie Sudderth ruled. "It seems abundantly clear that everyone in the courtroom -- the judge, the attorneys, the witness and the jury -- knew that [the signal] was a demonstrative aid, and nothing more."
In her instructions to the jury, Sudderth noted that ATSF "negligently destroyed the distance signal." She said jurors could "presume that the destroyed distance signal was unfavorable" to the railroad's legal position.
Jurors decided no one was at fault in the deadly crash. The family later reached a confidential settlement with the railroad.
"We won the case. But for a couple of days, there was a massive yellow card hanging out there, a multimillion-dollar yellow card," said Shewmake, using a soccer analogy to characterize the $10 million in sanctions. "And it was all dismissed by the courts on their own accord, because they realized it was a faulty premise and it was the wrong result."
Jason Mann said he felt cheated by the outcome.
"When it comes to the legal system, whoever has the deepest pockets usually ends up winning," he said. "That's the way I see it."
Shirley Mann said she still carries scars from the battle. "I had no idea how ruthless the railroad is."
Randy Mann is buried in a cemetery on the east side of Denton, a college town of 120,000 people about 40 miles north of Dallas.
His mother and siblings stop often to place flowers on his grave, but Shirley Mann, now remarried, rarely goes.
Neither does Jason, now 35 and a sales representative for a petroleum company who lives in Denton with his wife and two sons.
"It's been 17 years," he said, "but it's still very hard for me because I miss him that much."
Richard Meryhew • 612-673-4425