Roger Biever, a former BNSF technician, and his daily journal from Dec. 3, 1997, where he noted "Mess install" on train 2927, referring to a radio foot pedal that he installed.

Brian Peterson, Star Tribune

Biever's blue index card that he used to document his original concerns about the foot pedal in 1997. Conductor Marvin Richardson sued over a knee injury he suffered when he tripped on the pedal during a collision in 1999.

Staff, Star Tribune


  • Article by: PAUL McENROE and TONY KENNEDY
  • Star Tribune staff writers
  • December 8, 2010 - 9:12 AM

Roger Biever feared he was jeopardizing his job when he reached for the telephone in 2003, but he decided it was worth the risk to share what he knew about a railroad injury case in Washington.

"I felt like I was sticking my neck out and putting it on the chopping block," Biever said.

He realized he could be a crucial witness in a 2002 lawsuit against his employer, Burlington Northern Santa Fe Corp. In the mid- to late 1990s, he had warned his supervisors that the foot pedal he installed on locomotives was poorly designed and could someday lead to an injury, he said in a recent interview with the Star Tribune.

After conductor Marvin Richardson sued over the injury he suffered when he tripped on the pedal during a collision in 1999, BNSF repeatedly failed to identify Biever as the person who installed the equipment on Richardson's train, records show.

After Biever tracked down Richardson's attorney in 2003, the railroad settled the lawsuit shortly before a scheduled trial.

"The counsel that represented BNSF in this case no longer represents the company," BNSF said in response to questions from the Star Tribune.

Biever, who retired from BNSF in 2005 after 34 years with the railroad, said he's never spoken with Richardson. In an interview with the newspaper, he described why he stepped forward.

"I like to see justice,'' said Biever, 59. "Wipe my nose and keep it clean.''

As an electronics technician working at the railroad's Northtown diesel shop in Minneapolis, Biever said he was the leader of a crew that installed radio equipment on about 450 locomotives starting in the mid-1990s. A key piece of the equipment he installed was a foot pedal, which allowed locomotive crews to keep their hands free while communicating through radio headsets.

"It was a funky installation," Biever recalled.

He said he told his bosses that the pedal's design created a tripping hazard for crews working in the tight confines of a locomotive. He said nobody acted on his concerns.

"Their response was, 'No, leave it where it is,' " Biever said in the interview.

One of the locomotives Biever worked on was BNSF Locomotive 2927, which was involved in a crossing accident in 1999. When the train's engineer realized a pickup truck was not going to stop at the crossing, he yelled a warning to Richardson, who jumped from his seat to activate a brake on the front wall of the cab, according to the railroad's account. While trying to stop the train, Richardson tripped on the foot pedal, causing injuries that led to knee replacement surgery, according to his attorney.

Four years later, one of Biever's supervisors asked him questions about the installation of a foot pedal on BNSF Locomotive 2927, Biever said in an affidavit. Biever, a meticulous record-keeper, looked through an index file of blue cards and found one from 1997 that matched. In an interview, he said he showed his supervisor general photographs of that type of job and other related records.

Biever thought it was odd that he was being asked about that particular locomotive, but he thought he learned the answer when the supervisor left his briefcase open during a visit. Biever noticed documents about Richardson's lawsuit against the railroad, and he figured his boss was trying to get information without tipping his hand.

Knowing nothing but the plaintiff's name, Biever decided to find Richardson's lawyer. From the dining room table in his White Bear Lake home, he searched through the phone listings for Spokane, Wash. Three days, and dozens of cold calls later, he finally located Phil Arnold, Richardson's attorney.

By that time, Arnold had already filed repeated court requests seeking the identity of anyone with knowledge about the foot-pedal installation, according to his affidavit.

"BNSF's response to 5 separate discovery requests denied knowing that BNSF employee Roger Biever had installed the foot pedal in locomotive 2927 prior to the 10-14-99 grade crossing accident," BNSF said in a written statement to the newspaper. "Finally, in October 2003, after Arnold brought a motion to compel, Roger Biever was identified as the person who installed the foot pedal in locomotive 2927. This admission was made one month after discovery closed and one month before trial."

After speaking to Arnold, Biever informed BNSF that he was prepared to testify.

"Telling the truth and giving the facts may negatively impact my employer -- BNSF RR -- in this court case," he told the supervisor in a late October 2003 letter.

Within a week, the parties settled the case. Arnold thanked Biever for coming forward.

"The Railroad effectively hid your knowledge from us and your name was not advanced until four days before the deadline for a witness list,'' Arnold said in a November 2003 letter to Biever. "Without your sense of justice and taking the extra step that many people would avoid in contacting us, Mr. Richardson will financially be able to survive in the future. Our system only works if people participate.''

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