The verdict of $21.6 million to the families of four young adults killed in a 2003 train-car accident was among the largest wrongful-death awards ever in Minnesota. But the case is bigger than that, the families' attorneys said Tuesday. Maybe $45 million bigger.
Claiming that Burlington Northern Santa Fe fabricated, destroyed and withheld evidence that prevented the families from recovering punitive damages, the families' lawyers asked a Washington County judge for sanctions against the railroad of $45 million or more. In addition, lead attorney Bob Pottroff asked that the railroad not be permitted to appeal last June's $21.6 million verdict until the $45 million is paid in full.
Timothy Thornton, one of the attorneys for the railroad, argued before Judge Ellen Maas that the request for the $45 million award would be unconstitutional under Minnesota law because the plaintiffs "want you to enter a punitive damage award" and that doesn't "follow the constitutional requirement that a jury consider it."
Maas, who presided over last June's six-week civil case in Anoka County, has since been transferred to Washington County. She has 90 days to rule on possible sanctions. But among the questions raised in court that Maas first must consider are these:
Did Burlington Northern strategically fabricate, destroy and withhold evidence, as the families' legal team alleges?
"This wasn't some innocent accident that occurred," Pottroff said, accusing the railroad of perjury, misrepresentation, and concealing and destroying pre-accident evidence that included replacing an 8-foot stretch of rail the day before the crash.
"This was an intentional, systematic pattern," Pottroff said. "The pattern continued up to the verdict."
Or was it the "bungling" of a "rogue" BNSF employee -- a signal technician who the families' attorneys say failed to download key data, misplaced a key computer drive, and may have given conflicting testimony -- that ultimately persuaded jurors to award the families $21.6 million last year, as Thornton suggested in court.
"This was a problem employee," Thornton said of technician Craig Hildebrant.
Maas bristled at the suggestion that Hildebrant "bungled" anything. Hildebrant was retired by the time the civil suit came to trial, Maas reminded the courtroom. Burlington Northern "selected" Hildebrant and he was no "rogue" employee, the judge said. Hildebrant did not immediately return a call from the Star Tribune.
One question that may never be answered concerns what really happened on that Friday night in Anoka nearly six years ago. The families' lawyers said that had Burlington Northern not tampered with evidence, data could have shown that the crossing gates were not working properly when the westbound train traveling at 60 miles per hour hit the car at 10 p.m. on Sept. 26, 2003, at the Ferry Street crossing. The railroad contends that the car drove around the gates.
The jury determined that Burlington Northern was 90 percent responsible for the crash and the driver, believed to be 20-year-old Brian Frazier, of Newport, was 10 percent responsible.
Plaintiffs' attorney Sharon Van Dyck said the families of Frazier and the three others killed -- Bridgette M. Shannon, 17, of Ramsey; Corey E. Chase, 20, of Coon Rapids, and Harry Rhoades, 20, of Blaine -- haven't received any money from the June verdict.
"It's Brian's birthday today," Cristy Frazier said Monday, the first day of the hearing. "He would have been 26 -- and we have no idea what he would have looked like. Where's the justice?"
Thornton asked the judge not to allow for "some sort of wholesale, multimillion dollar sanctions" against the railroad.
Denise Shannon, whose daughter wanted to become a fashion designer, hoped the judge's ruling would not just undress Burlington Northern, but any corporation that might attempt to manipulate the judicial system.
"You can't play with families this way," she said.
Paul Levy • 612-673-4419