Judicial action against BNSF in seven states

Since 2000, the railroad has been disciplined by judges in 13 cases, most often for withholding or destroying crucial evidence. Click on a state to read case summaries and find links to original court documents.

Washington: 1 case
Montana: 7 cases
Minnesota: 1 case
Missouri: 1 case
Texas: 1 case
New Mexico: 1 case
California: 1 case

Washington

What happened: BNSF worker Dennis Barbur injured his knee when he stepped on a discarded brake shoe in a Spokane rail yard in 2004. He sued the railroad for his injury.

Year judge took action: 2008

At issue: Railroad workers failed to retain the brake shoe as evidence.

Judge’s action: Granted request for instruction that would allow jurors to draw an “adverse inference” based on BNSF’s failure to preserve the evidence.

What judge said: “The court intends to give an appropriately drafted instruction informing the jury that it may draw, but is not required to draw, an adverse inference based upon the defendant’s failure to preserve physical evidence.”

BNSF’s response: “BNSF preserved the scene through photographs and produced those photographs, but did not preserve the brake shoe. The plaintiff requested that Judge VanSickle sanction BNSF for losing the brake shoe. In July 2008, the Judge denied the plaintiff’s motion to strike defendant’s defense of comparative fault but did grant a request that the jury may draw, but is not required to draw, an adverse inference based on the defendant’s failure to preserve physical evidence. The case did not go before a jury, instead it was settled on Aug. 2008.”

Washington: 1 case
Montana: 7 cases
Minnesota: 1 case
Missouri: 1 case
Texas: 1 case
New Mexico: 1 case
California: 1 case

Montana

Chad Silliker

What happened: BNSF conductor Chad Silliker tripped over a locomotive handset and cord in 2001, injuring his back. By the time he sued BNSF in 2007, a trainmaster had thrown the evidence away.

Year judge took action: 2010

At issue: Railroad improperly disposed of the handset and cord, key evidence in the case.

Judge’s action: Though the judge found no evidence of bad faith by BNSF, judge held railroad liable for the incident as a matter of law.

What judge said: “By improperly disposing of the evidence, BNSF has prejudiced Silliker in that he is now unable to examine and analyze the (equipment) that caused his fall and injuries. Further, BNSF has deprived Silliker of vital and critical evidence necessary to prove his claims.”

BNSF’s response: “The case was not filed until 2007. In the intervening six years, a trainmaster threw away the cord and handset when cleaning out a depot closet. It is our belief that the trainmaster assumed the case was over given the six-year lapse of time. The Court found BNSF had a duty to preserve the cord and failed to do so. As a sanction, the Court found BNSF liable for the incident and stripped BNSF of its contributory negligence defense. Court specifically noted there was ‘no bad faith’ on BNSF’s part.”


David Donovan

What happened: BNSF worker David Donovan sued BNSF over a neck and back injury he suffered in 2005 while driving a company truck.

Year judge took action: 2008

At issue: BNSF failed to turn over key records until two days before trial, affecting judge’s evidentiary rulings and impairing plaintiff’s ability to present his case.

Judge’s action: Ordered new trial and told BNSF to pay for some of plaintiff’s legal costs.

What judge said: “The 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. ... BNSF’s counsel admitted the e-mails ... were discoverable, should have been produced and yet BNSF provided no justifiable reason for their non-production. While this court does not believe BNSF’s counsel intentionally committed discovery abuses, nonetheless plaintiff was prejudiced by these abuses.”

BNSF’s response: “BNSF produced the Safety Director’s file shortly before trial. Plaintiff moved for sanctions as a result. BNSF argued to the Court that this late production was purely an oversight and not intentional, to which the Court agreed. Plaintiff also argued that the actual supervisor’s file had not been produced previously, but essentially the same information was produced in electronic format in 2005. The late produced file included some comments which were found to be irrelevant to this case by the Court. The monetary sanction was solely for the deposition of this Safety Director during the trial itself. The sanction was for slightly more than $1,000, which represented a few hours of attorney time and the cost of the transcript and subpoena.”


Jeff Young

What happened: BNSF yardmaster Jeff Young sued the railroad for a back injury he suffered falling off an allegedly defective office chair in Spokane, Wash., in 2005.

Year judge took action: 2008

At issue: Burlington Northern failed to turn over two safety alerts regarding office chair accidents. Worker’s lawyer obtained the records from a third-party source three days after trial was over.

Judge’s action: Ordered new trial and allowed plaintiff to obtain new information about the safety alerts.

What judge said: “The defendant’s failure to produce the safety alerts materially affected the substantial rights of the plaintiff. ... The defendant argues information regarding the safety alerts was provided to the plaintiff, or alternatively, the plaintiff never specifically requested the safety alerts. Both of these arguments are unpersuasive. The defendant should have provided the two safety alerts in question to the plaintiff in response to the plaintiff’s discovery requests... The statute allows for attorney’s fees and costs when the opposing party or attorney multiplies the proceeding unreasonably and vexatiously. Attorney’s fees and costs are not appropriate in this case. The plaintiff failed to provide any evidence that the defendant or the defendant’s attorney acted vexatiously.”

BNSF’s response: “Although evidence of other “chair accidents” was deemed inadmissible at trial, Mr. Young was awarded a new trial because two safety alerts concerning other office chairs were not produced in response to requests for “investigative reports” during discovery. Mr. Young’s counsel never requested any safety alerts and therefore BNSF never searched for or turned over such documents.”


George Treperinas

What happened: BNSF worker George Treperinas allegedly suffered a neck injury while removing a piece of equipment from a truck.

Year jury took action: 2006

At issue: During the first trial, BNSF attorney violated a court order and questioned a witness on a topic that was specifically declared off-limits by the judge.

Judge’s action: Declared a mistrial as “a result of BNSF counsel’s conduct’’ and ordered railroad to pay $27,684 in Treperinas’ legal fees and other costs.

What judge said: “The court does not believe counsel for BNSF acted maliciously or vexatiously when he attempted to solicit information regarding railroad retirement benefits. However, counsel for BNSF did act unreasonably. ... Counsel caused these proceedings to be unreasonably multiplied, causing excessive costs, expenses and attorneys fees for Treperinas.”

BNSF’s response: “Fees were awarded in that Montana litigation. Fee awards are often part of the relief and should not necessarily be construed as sanction.”

In the judge’s ruling, he noted, “BNSF contends it properly cross-examined Treperinas’ economic expert regarding railroad retirement benefits after the witness mentioned them during direct examination. BNSF asserts it has a right to cross-examine a witness about any matter brought up in direct examination. Additionally, BNSF argues Treperinas opened the door to collateral sources by making his financial problems an issue at trial. It attributes Treperinas’ request for a mistrial to be his desire for a ‘do-over.’”


Shawn Danielson

What happened: Shawn Danielson, a BNSF engineering employee, alleged he suffered repetitive injuries to his neck and back in 2004 from a rough-riding company truck.

Year judge took action: 2006

At issue: BNSF failed to turn over e-mails that “raise serious questions about the legitimacy” of a portion of the company’s vocational rehab program for injured workers, judge said.

Judge’s action: Barred railroad from presenting several defenses, including challenging the worker’s proof of BNSF’s negligence.

What judge said: “This non-disclosure is neither isolated nor relatively insignificant. This non-disclosure is yet another instance in a larger recurring pattern ... of obstructive discovery practices in this and other (worker) cases before this court. BNSF’S indignant objections further exacerbate this non-disclosure and raise additional questions as to whether BNSF, independent of counsel, purposely concealed or withheld this information in flagrant violation of the Rules of Civil Procedure.”

BNSF’s response: “Prior to the merits of the case being decided, and without Plaintiff even filing a motion to compel discovery, the court issued a “sanctions order.” BNSF lost two defenses in the case, mitigation and liability. BNSF had previously produced several e-mails, in an unrelated case, in Missouri. The e-mails were no longer maintained in the ordinary course of BNSF’s business and not available for production in the Danielson matter under the rules of civil procedure. Nevertheless, Danielson’s lawyer sought production of the documents, alleging that BNSF had failed to fully respond to discovery.”


Todd Schmidt

What happened: BNSF worker Todd Schmidt filed a “cumulative trauma” lawsuit, alleging that virtually all his BNSF work-related activities - using tools, equipment and riding in vehicles - caused him to injure his back.

Year judge took action: 2005

At issue: BNSF failed to turn over e-mails that “raise serious questions about the legitimacy” of a portion of the company’s vocational rehab program for injured workers. Judge said BNSF ignored warnings and repeatedly failed to properly respond to discovery requests.

Judge’s action: Deemed BNSF negligent as a matter of law. Barred one of the railroad’s defenses at trial.

What judge said: “The court finds these continuing practices to be technically improper, incomplete, obstructive and evasive.”

BNSF’s response: “During discovery, the Court found BNSF’s answers to be ‘obstructive, incomplete and evasive.’ BNSF was requested to provide an extensive list of documents, including many that BNSF believes were irrelevant to Mr. Schmidt’s claims. The Court sanctioned BNSF by entering judgment as to its liability and stripping BNSF of certain defenses.”


Mike Dolan

What happened: BNSF employee Mike Dolan filed suit in 2001 for work-related cumulative back injuries.

Year judge took action: 2003

At issue: BNSF improperly withheld information.

Judge’s action: Ordered BNSF to pay part of injured worker’s legal costs.

What judge said: “The court finds that the defendant was on notice of the problems with the trucks at issue and had received complaints about said trucks long before the plaintiff initiated his suit. The court also finds that this information existed and was readily available to the defendant. ... It was only recently, and only after the plaintiff independently discovered the information, that the defendant started to produce it. Although the court does not find that the defendant intentionally withheld this information, the court still finds it appropriate to sanction the defendant for its failure to be diligent in acquiring this information and disclosing it to the plaintiff as requested.”

BNSF’s response: “Prior to trial, BNSF was ordered to pay attorneys fees and costs for depositions, letters and motion concerning other complaints about other work trucks outside the state of Montana. The Court found that BNSF did not withhold the information intentionally but was not diligent enough in finding the information.” BNSF said it did not pay the legal fees and costs because the required documentation was not filed.

Washington: 1 case
Montana: 7 cases
Minnesota: 1 case
Missouri: 1 case
Texas: 1 case
New Mexico: 1 case
California: 1 case

Minnesota

What happened: Four young people were killed by a BNSF train at the Ferry Street crossing in Anoka in 2003.

Year judge took action: 2009

At issue: Railroad stalled and failed to provide evidence to state investigators probing accident that killed four young people in Anoka. Laptop computer containing key data was destroyed, while other copies of data were corrupted. Railroad worker admitted lying under oath.

Judge’s action: Ordered BNSF to pay $4.2 million in sanctions to surviving family members based on her findings of misconduct by BNSF. Minnesota Court of Appeals said judge did not abuse her discretion by imposing sanctions. Minnesota Supreme Court denied BNSF’S appeal on that issue.

What judge said: “The breadth of BNSF’S misconduct in this case is staggering; beginning within minutes of the accident, up to and through the trial.”

BNSF’s response: “I don’t think that there’s anything that BNSF did that impeded the state police from doing the investigation that they did or coming up with the conclusions that they did, and I don’t think there’s anything that any BNSF people did that impeded the plaintiff’s ability to put on their case. ... I will acknowledge that there are things that happened in the investigation of that case, where best practices weren’t followed, where in hindsight we could’ve done some things differently. In light of the conduct of the trial, we now know that some of this evidence that we didn’t think was relevant, was relevant, and certainly if we were not fully cooperative with law enforcement in that case or any others going forward, it would certainly be my intention that we would be,” Charles Shewmake, BNSF vice president and general counsel, said in an interview.

Washington: 1 case
Montana: 7 cases
Minnesota: 1 case
Missouri: 1 case
Texas: 1 case
New Mexico: 1 case
California: 1 case

Missouri

What happened: BNSF laborer Ralph Early suffered severe back injuries after falling from a company ladder in a Chicago locomotive shop in 1999.

Year court took action: 2003

At issue: Railroad lost a ladder that allegedly caused worker’s injury.

Judge’s action: Refused to let jurors see an alleged facsimile of the ladder or photographs of BNSF’S reenactment of the accident, adversely impacting the railroad’s defense that there was nothing wrong with the ladder at the time of the accident.

What judge said: “The ladder in question was never produced for the plaintiff’s inspection. The defendant contends that soon after the accident, the ladder disappeared, never to be found again. ... Plaintiff testified that the ladder that collapsed on him was in no way similar to the ladder described by defendant’s witnesses and documents at trial.”

BNSF’s response: “When the Claims Department became aware of the incident, the investigation included photos of the ladder and instructions to the Shop supervisor that the ladder be removed from service and retained.

Mr. Early later testified that he was present when the Claims Department inspected the ladder and recalled hearing the Claims representative instruct the shop supervisor to retain the ladder. Early stated he last saw the ladder leaning against the exterior wall of the roundhouse at Corwith yard. ... The sanction imposed for BNSF’s failure to secure and retain the ladder was a significant issue on appeal. BNSF was disappointed with the verdict and the court of appeals’ decision, but BNSF abided by the rulings.’’

Washington: 1 case
Montana: 7 cases
Minnesota: 1 case
Missouri: 1 case
Texas: 1 case
New Mexico: 1 case
California: 1 case

Texas

What happened: Atchison Topeka and Santa Fe freight train engineer Randy Mann was killed in a nearly head-on collision with a Burlington Northern train at a Burlington-maintained crossing on a foggy night in 1993. His survivors sued, claiming both railroads were to blame for his death. (The two carriers merged in 1995 to create BNSF).

First trial

Year judge took action: 2000

At issue: Railroad’s lawyer admitted BNSF “concocted” a warning signal after losing the original device, which was not working on the night the trains collided.

Judge’s action: Declared mistrial and imposed $10 million in sanctions on BNSF. Judge later rescinded the financial penalties and recused himself from the case.

What judge said: “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. I take the integrity of this process very seriously. And that integrity has been lost in this case, either through dishonesty or stupidity.”

Second trial

Year judge took action: 2001

Judge’s action: The newly presiding judge instructed jurors that ATSF “negligently destroyed the distance signal.” She told jurors that they could “presume that the destroyed distance signal was unfavorable” to the railroad’s legal position. The judge denied the family’s request to reinstate $10 million in sanctions.

What judge said: “There is no showing that the Defendant tried to pass this exhibit off as something it wasn’t. 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.”

BNSF’s response: “I know the judge (in the first trial) who was involved in that case, the Mann case, Mann vs. BNSF. Everybody has a bad day. I know that judge. He had a really bad day. He came back three days later and he recanted and he dismissed the sanctions, then he recused himself from the case, because he felt like he couldn’t go on with that case. The case got assigned to another judge, who did not reinstate the sanctions and we won the case. But for a couple of days, there was a massive yellow card hanging out there, a multimillion-dollar yellow card and it was all dismissed by the court’s own accord, because they realized it was a faulty premise and it was the wrong result,” Charles Shewmake, BNSF vice president and general counsel, said in an interview.

Washington: 1 case
Montana: 7 cases
Minnesota: 1 case
Missouri: 1 case
Texas: 1 case
New Mexico: 1 case
California: 1 case

New Mexico

What happened: An Amtrak train struck a car, killing three people at a signalized railroad crossing maintained by BNSF in July 2001. After the parties settled a case involving one of the victims in 2005, a representative for that victim asked a federal judge to reopen the case, claiming possible fraud and misconduct related to the handling of evidence.

Year judge took action: 2007

At issue: BNSF workers visited accident site to make sure everything was in “working order” a few days before plaintiff’s expert appeared to inspect the site for defects. The crew fixed a malfunctioning warning light. The repair wasn’t discovered by the plaintiff until after the case was settled.

Judge’s action: Refused plaintiff’s request to reopen the case for failing to meet the “high standards” that are legally required. Denied railroad’s motion for sanctions against plaintiff’s lawyer for making the request.

What judge said: “Neither Marcotte’s counsel nor her expert was informed or advised that BNSF employees had altered the lights at the scene before the inspection by Marcotte’s expert. ... The court has found clear and convincing evidence that BNSF intentionally engaged in misconduct.”

BNSF’s response: Based on the testimony of the signal supervisor, “it appears that he and his crew were performing a task that they regularly performed (the active warning signals audit), that they learned that an inspection would be conducted within a few days of their audit, and that they concluded to address any issues with the lights prior to that inspection. There is not, and has never been, any evidence that BNSF counsel instructed the crew to take these steps... BNSF continues its efforts to improve and broaden its evidence preservation policies and to educate its employees as to the importance of and compliance with those policies. While with any human endeavor mistakes will occasionally happen, BNSF is committed to minimizing those errors.”

Washington: 1 case
Montana: 7 cases
Minnesota: 1 case
Missouri: 1 case
Texas: 1 case
New Mexico: 1 case
California: 1 case

California

What happened: California utility worker Robert Pietrowski suffered severe brain damage and back injuries when a BNSF train collided with his truck at a private crossing near San Francisco in 2001.

Year judge took action: 2004

At issue: BNSF refused to let plaintiff’s lawyer depose three witnesses and failed to provide requested evidence.

Judge’s action: Imposed sanctions of $1,050 and barred BNSF from presenting some evidence at trial because the evidence was not produced soon enough. Ordered BNSF witnesses to submit to questioning.

What judge said: N.A.

BNSF’s response: “Our records do not reflect that $1,050 in sanctions or any judicial sanctions were awarded.”