When justice knows no timetable

The sound of grinding and clanging metal woke Jeanette Klier six years ago when 31 cars from a Canadian Pacific freight train derailed a few hundred yards from her home in Minot, N.D.

Five tank cars ruptured, releasing a cloud of 220,000 gallons of anhydrous ammonia, a caustic chemical that seeks out the moisture in people's eyes, lungs and skin.

"Every breath you took burned," Klier recalled in a recent interview. "Everything burned. Your nose, your mouth, your eyes."

The chemical burned Klier's tear ducts, permanently scarring her eyes. But she said the insult to her injury came as she and other victims sought compensation.

Canadian Pacific Ltd. and its Minneapolis subsidiary, Soo Line Railroad, which maintained the tracks, have waged a protracted legal battle with victims. The argument moves to St. Louis on Thursday -- just one day before the derailment's six-year anniversary -- when lawyers will square off before a three-judge panel of the Eighth U.S. Circuit Court of Appeals.

The derailment on Jan. 18, 2002, resulted in one death, 11 "serious" injuries and 322 "major" injuries, according to one judge's reckoning.

The railroad has settled tens of thousands of claims and lawsuits totaling undisclosed millions of dollars. But some 200 to 300 cases remain unresolved. Congress passed a law last year to help victims in court, but Canadian Pacific is challenging that action as unconstitutional.

When Congress passed the Federal Railroad Safety Act in 1970, it made the railroads subject to oversight by the Federal Railway Administration. This was supposed to ensure safety by establishing clear, nationwide standards.

But the Minot cases revealed an unintended effect of the law: It provided no remedy for victims of railroad accidents.

In February 2006, Klier and three other people injured in the derailment won a $1.86 million jury verdict in Hennepin County District Court against the railroad. But a month later, a federal judge in North Dakota dismissed a class-action suit filed by other victims.

"The judicial system is left with a law that is inherently unfair to innocent bystanders and property owners who may be injured by the negligent actions of railroad companies," Chief U.S. District Judge Daniel Hovland lamented in his ruling.

The pendulum swung back in April 2006, when Hennepin County District Judge Tony Leung issued a 53-page ruling saying the claims could proceed in Minnesota.

The momentum swung back to federal courts on May 16, 2006, when the Eighth Circuit ruled that another group of Minot lawsuits must be heard in federal court.

Shortly after that the appeals court blocked a federal judge in Minneapolis from sending another Minot lawsuit back to a state court.

Canadian Pacific quickly filed "removal notices" on hundreds of other state cases to push them into federal court, Rudd said. "It was unbelievable!"

The next blow to the plaintiffs came last February, when Judge James Rosenbaum, chief of the federal district of Minnesota, dismissed a group of 31 lawsuits.

Like Hovland, he found that federal law provided no remedy for the injured. Congress created the regulatory regime, he wrote. "And when Congress has clearly spoken, any relief from its regime must come from Congress."

Robert Hopper, another Zimmerman Reed lawyer, said he took a cue from Rosenbaum. "At that point we went into major lobbying mode."

Klier and Minneapolis lawyer Sharon Van Dyck, representing a trial lawyers' association, testified before Congress last year.

U.S. Rep. Jim Oberstar, D-Minn., who chairs the House Transportation and Infrastructure Committee, said most of his colleagues agreed that there ought to be a legal remedy, "but we had considerable division of opinion about how much of a remedy."

He said Congress approved a narrow bill that says if a railroad violates a federal standard or its own federally approved safety plans, then a plaintiff may sue for damages. The law took effect Aug. 3.

Victims settle up

The law change came too late for Karen Crocker and her family. Crocker, 65, attributes her fibromyalgia and asthma to the ammonia release. Like Klier, she says it also burned the out her tear ducts.

Crocker said the slow legal process wore on her and her husband, so they grudgingly accepted the railroad's offer, which she said is "pennies on the dollar" of their medical expenses.

"You forget these health problems that continue on and on," she said last week. "I have a pulmonologist and a rheumatologist that I go to. I'm on a lot of medication."

Canadian Pacific attorney Timothy Thornton defended the railroad's actions.

"I would hope that you would understand that number one, significant numbers of cases were settled without any need for litigation," said Thornton, a shareholder with the Minneapolis firm Briggs and Morgan.

Even so, Thornton said he will argue at the Eighth Circuit on Thursday that the change Congress made to the Federal Railway Safety Act was unconstitutional breach of the separation of powers.

"I think there was a serious constitutional transgression in response to some political pressure brought to bear by the trial lawyers," Thornton said.

Such comments rile Hopper, who alleged that trains are going faster and carrying more hazardous materials in rundown rail cars on poorly maintained tracks than ever before.

"And then when they derail and they poison people and kill people, then the railroads go into court and they run to Washington and try to have laws create immunity for them."

Dan Browning • 612-673-4493