A judge said in court Friday that a railroad attorney's explanation for paying two new witnesses $15,000 to tell what they saw at an Anoka train crossing the night four people in a car were killed "didn't pass the smell test."

After a day of arguments by a Burlington Northern Sante Fe attorney for a new civil trial on wrongful death claims, District Judge Ellen Maas denied a new trial motion.

Maas also declined to reduce the $21.6 million an Anoka County jury awarded to the families of the four young adults after a six-week trial a year ago. "I saw no reason to substitute my judgment for that of a very thoughtful jury," Maas said afterward. The hearing was in a Stillwater courthouse where Maas has been transferred since the trial in Anoka.

A former hired attorney for the railroad, Megan Ricke, said in court documents that when the families' attorneys sought $45 million in additional sanctions against the railroad for alleged mishandling of evidence, she feared that her firm might be targeted and agreed to give a "reward" for statements from witnesses about whether the railroad's crossing arm was working the night of the crash. The railroad has argued that the crossing arm worked that night and that Brian Frazier, 20, of Newport, tried to drive around the arm with its flashing lights when the train struck the vehicle. The plaintiffs countered that the arm didn't work, failing intermittently, and that Frazier didn't see the train in time to stop.

Defense attorney Timothy Thornton told Maas that Burlington Northern didn't pay the two new witnesses. But Thornton said the railroad didn't object to Ricke paying the pair a total of $15,000. He said testimony from one of the pair and from another couple who drove past the Ferry Street railroad crossing that night provide "compelling evidence" that justifies a new trial.

The couple, a Coon Rapids police officer and his wife, came forward in April after hearing about sanctions the plaintiffs sought against the railroad for its alleged mishandling of potential evidence. The couple weren't solicited or paid. They told railroad attorneys that the crossing arm worked when they drove through the Ferry Street crossing shortly before 10 p.m. on Sept. 26, 2003, just before the crash.

Judge Maas told Thornton that she was troubled that Ricke's firm, Spence Ricke of St. Paul, had paid the two additional witnesses for statements.

"They weren't paid for their testimony," Thornton replied. "The witnesses were offered economic incentives to come forward. We didn't say, 'You say this and we will pay you.' We want true testimony."

After the trial a year ago, Burlington Northern replaced Ricke's firm with Briggs and Morgan, for which Thornton works.

Thornton said the Coon Rapids police sergeant and his wife gave statements that the crossing arm worked.

Bob Pottroff, of Manhattan, Kan., is lead attorney for the victims' families. He said he filed a motion after the trial seeking $45 million in sanctions against the railroad and, if appropriate, its attorneys, for concealing, fabricating or destroying evidence about the railroad crossing arm's malfunctions.

When Ricke asked plaintiff lawyers if they were going after defense lawyers, attorney Sharon Van Dyck responded that the plaintiffs were not seeking personal damages unless the railroad suggested its attorneys mishandled evidence without railroad knowledge. Pottroff said Ricke said in a deposition that she never received Van Dyck's letter and paid the witnesses because of personal liability concerns.

"I am really troubled by a motion for a new trial based on reward testimony," the judge said in court. "In my fourteen and a half years on the bench, I have never had something like this come up. It doesn't pass the smell test."

Maas said she will rule by September on the families' request for $45 million in sanctions. The families said the railroad's concealing or mishandling evidence prevented them from winning punitive damages.

Thornton said because of credibility issues, he was withdrawing one paid witness, Jason Beringer, 31. Beringer had said he requested and received $10,000 for his deposition. Thornton said he planned to use the Coon Rapids sergeant's statement and that of a Ramsey woman, who was paid $5,000. The woman also drove through the crossing that night. None of the four new witnesses saw the fatal accident.

Beringer said in court documents that the rail crossing gate was working that night, but it hadn't in the past. He said he gave a bottle of Vodka that night to the four people in the car: Frazier, Corey Chase and Harry Rhoades Jr., both 20, and Bridgette Shannon, 17.

Jim Adams • 612-673-7658