Metrolink Lawsuit Settlement

[RudyRockvilleMD]

According to today's Trains News Wire (December 9) an injured passenger on a Metrolink train won a lawsuit against BNSF when one of its freight trains collided with a Metrolink train near Los Angeles in April, 2002. There was no mention whether BNSF plans to appeal the jury's award.

I was surprised to learn BNSF, which was judged to be at fault, was required to pay the claims instead of Metrolink. According to a recent discussion in this forum when Amtrak's trains are involved in accidents on host freight railroads Amtrak pays the claims that arise as a result of that accident even though the freight railroad is at fault. Wouldn't indemnification also apply to commuter railroads in case of accidents when they use the freight railroads tracks?

[ericsp]

Depends on the contract. Isn't that track owned by the Southern California Railroad Authority (SCRRA)?

[joesap1]

According to the newspaper acticle in my local paper, BNSF was found at fault by the Feds because the freight crew misread a signal which lead to the collision with the Metrolink train.
A guy who goes to my church died in that crash. I hope his relatives aren't suing. The lady won like 9 million dollars with 7.5 of it for emotional upheaval in her life. Of course, what the article forgets to mention is the lawyers get half, the government gets half, which leaves very little for the "victim."

[oltmannd]

What is unfair about punative damages is the disconnect between the amount accessed and the recipients actual damages. If the purpose of punative damages is to puni***he negligent party and the amount accessed is comemsurate with the abiltiy of the defendent to pay - then this is certainly fair and just w.r.t. the defendent. But, what about the plaintiff? Why should they collect a different amount depending on the wealth of the one who injured them? Suppose is was the uninsured Mom and Pop shortline instead of BNSF? From the plaintiffs point of view, the damages are the same, so why should the award be different?

Actually, I think that once the plaintiff has collected their actual damages including pain and suffering, that should be then end of it. If there is punishing to be done, let the gov't do it as part of criminal law and lets take the "lottery" aspecet out of civil cases it.

[gabe]

A few comments:

(1) It is "possible" for the lawyer at issue to get half the settlement—depending upon the contingency agreement. That depends upon the (1) contract between the lawyer and the client and (2) the laws of the State of California. However, half is fairly high, and the usual contingency is about a third.

Also many states--I am unsure if California qualifies--severely restrict a lawyer's contingency fees regarding punitive damages (Indiana, lawyers basically get NOTHING). My hunch is the lawyer’s award will not be nearly as high when it comes to the punitive damages.

(2) Whether a person or corporation should have to pay 100% of the damages when they were only 75% (or some other random number) responsible for the injury is a hot issue upon which many states disagree. So, Jamie's contention is certainly shared by many other states.

Pro-plaintiff people claim: hey, you caused my injuries, “you break it you buy it,” why should the fact that some one else happened to help you cause my injuries keep me from being "made whole" by a monetary award.

Pro-defense people argue largely along the lines of Jamie.

It really gets tricky when the person injured was one of the negligent parties—that is when lawyers earn their keep.

(3) As far as the punitive damages go, I will express an actual opinion. I disagree that punitive damages should be done away with all together. Punitive damages allow entities to be discouraged from committing malicious acts and serve a definite societal purpose.

If you don't believe me, look at the many state governments who are able to avoid adverse judgments on the basis of sovereign immunity. Their practices are much more reckless than corporations who are subject to punitive damages. I would give specific examples, but this post is already too long.

However, I STRONGLY disagree with the award of punitive damages in the case above. Punitive damages imply that the party responsible knowingly, reckless, or intentionally caused the injury and the damage award will discourage the responsible party from committing such conduct in the future.

I think it is silly to think that BNSF needs (more) incentive to keep their trains from running caution lights and causing major derailments, and I think it is equally laughable that BNSF recklessly, knowingly, or intentionally contributed to that accident. BNSF’s conduct screamed of negligence not maliciousness (we will see how this one does on appeal—though I am told California is very pro-plaintiff).

I find this award scary. A sad reality of modern society is that such accidents will occur from time to time and at some point preventing these accidents becomes prohibitively expensive (Mark’s T&E article is a good example). If people are allowed to collect punitive damages for such conduct, we might was well get used to living in nature, because every corporation knows there is a point where they are not able to avoid negligence. There comes a point where society has to determine whether it wants to have rail transportation (or the many other modern conveniences that sometimes results in tragedies stemming from negligence) or we want punitive damages to be construed so broadly. I for one don’t want to walk to Chicago this weekend.

(4) As far as Metro's indemnification, as was suggested above, that is a purely contractual issue between the indemnor and the indemnee. Also, since the plaintiff wasn't a party to this agreement, if the indemnor can't afford to completely indemnify the indemnee, the plaintiff may still be able to recover from the indemnee.

Gabe

[gabe]

Just to clarify,

I have no problem with the existence of punitive damages; it is just that from what I know about the case, the jury allowed other factors to cloud their judgment rather than a proper application of punitive damage law.

When this happens, society as a whole suffers because it discourages people from acting, business from investing, etc. etc.--e.g. I know I or one of my employees might be negligent if I start this business that will employ thousands and create some innovation, and I know that juries sometime “punish rather than compensate” negligent action, and I know such a punitive damage award will put me in the poor house, ergo I decide not to start my business.

Gabe

[gabe]

QUOTE: Originally posted by oltmannd

What is unfair about punative damages is the disconnect between the amount accessed and the recipients actual damages. If the purpose of punative damages is to puni***he negligent party and the amount accessed is comemsurate with the abiltiy of the defendent to pay - then this is certainly fair and just w.r.t. the defendent. But, what about the plaintiff? Why should they collect a different amount depending on the wealth of the one who injured them? Suppose is was the uninsured Mom and Pop shortline instead of BNSF? From the plaintiffs point of view, the damages are the same, so why should the award be different?

Actually, I think that once the plaintiff has collected their actual damages including pain and suffering, that should be then end of it. If there is punishing to be done, let the gov't do it as part of criminal law and lets take the "lottery" aspecet out of civil cases it.

An understandable sentiment. But:

(1) Punitive damages are not awarded from negligent conduct--only for malicious conduct.

(2) The purpose of punitive damages has NOTHING to do with the plaintiff. Their sole purpose is to protect society by discouraging the defendant and future defendants from committing malicious acts.

(3) Indiana, and other states, have actually started following your sentiment. Indiana requires 75% of all punitive damage awards to eschew to the state rather than the plaintiff. However, this is not proving altogether effective, as plaintiff lawyers are simply not asking for punitive damages now and trying to get the large awards by pulling the juries heart strings for pain and suffering--which all goes to the plaintiff. Essentially, it’s the same amount of money, just directed under different names.

Gabe

[gabe]

Also, Don:

More often than not punitive damages are not allowed when the defendant can also be punished under criminal law. The argument is we do not need to puni***he defendant twice. Thus, leaving them to criminal law doesn't necessarily address all malicious acts. Punitive damages are supposed to be a stop-gap between criminal and civil law.

Gabe

[oltmannd]

QUOTE: Originally posted by gabe

QUOTE: Originally posted by oltmannd

What is unfair about punative damages is the disconnect between the amount accessed and the recipients actual damages. If the purpose of punative damages is to puni***he negligent party and the amount accessed is comemsurate with the abiltiy of the defendent to pay - then this is certainly fair and just w.r.t. the defendent. But, what about the plaintiff? Why should they collect a different amount depending on the wealth of the one who injured them? Suppose is was the uninsured Mom and Pop shortline instead of BNSF? From the plaintiffs point of view, the damages are the same, so why should the award be different?

Actually, I think that once the plaintiff has collected their actual damages including pain and suffering, that should be then end of it. If there is punishing to be done, let the gov't do it as part of criminal law and lets take the "lottery" aspecet out of civil cases it.

An understandable sentiment. But:

(1) Punitive damages are not awarded from negligent conduct--only for malicious conduct.

(2) The purpose of punitive damages has NOTHING to do with the plaintiff. Their sole purpose is to protect society by discouraging the defendant and future defendants from committing malicious acts.

(3) Indiana, and other states, have actually started following your sentiment. Indiana requires 75% of all punitive damage awards to eschew to the state rather than the plaintiff. However, this is not proving altogether effective, as plaintiff lawyers are simply not asking for punitive damages now and trying to get the large awards by pulling the juries heart strings for pain and suffering--which all goes to the plaintiff. Essentially, it’s the same amount of money, just directed under different names.

Gabe

Personally, I don't think I'd ever want an award for pain and suffering - I don't think it's a reasonable thing but I can tolerate those who do think it's reasonable. The money and pain are unrelated items. Kinda like giving a starving person dishes and silverware...

You point #2 - you mean it doesn't have anything to do with the plaintiff except that they are the one who pays! Aren't punative damages generally sized according to abiltiy to pay? If the sole purpose is to protect society, shouldn't all society collect instead of just one citizen?

Your point #3 - is effectiveness ever a satisfactory reason for being unjust or unfair? Also, you make is sound like juries are not wise enough to discern actual pain and suffering from that trumped up to get more dollars. Are people so stupid as to always fall for the "David vs Goliath" portrayal? i.e. fraud is OK as long as you a defrauding someone who can afford it!

[Anonymous]

Gabe, you made some excellent points. I'm glad I'm just enforcing the law... not trying to interpret it.
What's key to the "punitive damages" aspect is government (as in court) regulated sanctions against persons or corporations as mentioned above. The difference between "maliciousness" and "negligence" is something that has to be done by a jury, on a case by case basis.

For example, a medical doctor performing surgery hopefully goes into the surgery without intent of losing the patient. That's lack of malicious intent. If he botches the surgery because of error in procedure, it's negligence. If he walks into the OR high on drugs or drunk, or otherwise impaired, I'd almost be sure to say that his actions are malicious- because they are premeditated. As a jury member, I'd be willing to take the doctor's farm, his golf priveleges at the club, and his license under those circumstances, as well as take out a lien on his first and second born. I wouldn't want the doc to have the privelege of operating on anyone again- thus punitive damages (in addition to a monetary award to try and get a patient back to some semblance of a previous lifestyle.)

I may be just someone with childlike innocence, but I would like to think that a punitive award of this size and nature would cause BNSF to review, investigate, and make changes to procedures- mechanical and in personnel- to prevent it from happening again. Simply allowing indemnity costs reduces a problem to an argument between insurance companies without attacking the root cause of the accident. Anyone- including Aeroflot, the world's "most dangerous airline"- can pay large insurance premiums and keep flying. Sometimes you have to make the company pay attention to shoddy practice... and punitive damages do just that.

Erik

[gabe]

Don,

I am not saying that you are venting at me, but try to remember, I didn't invent the system, I am just trying to explain why it operates the way it does.

Actually, the defendant is the one who pays, not the plaintiff. Yes, the plaintiff is the beneficiary of the payment. But, the law regards that pretty much as a happenstance. What punitive damage law is really concerned with is punishing wrongdoing--that is why the damages are called "punitive."

Also, I am not saying I know what the explanation is and I would never make a blanket statement of "juries are stupid." However, statistical evidence supports my contention.

If you look at jury awards with and without punitive damages, logic would tell you that the awards without punitive damages would be smaller. Since Indiana has given such awards to the state rather than to plaintiffs and plaintiff lawyers are starting to realize they collect more without asking for them, the size of the over all award has not fallen--and the pain and suffering award has gone up considerably. (If the plaintiffs lawyers were really smart, they would just find a way to bring their case to federal court).

It is human nature to want to punish someone for a wrong, successful lawyers are able to pull at these strings without saying the words—the results are predictable. Plaintiff lawyers actually love this situation, because pain and suffering may be collected as part of their contingency fee—whereas punitive damage recovery was not quite as solid.

Once again, I am not saying this is good or bad.

Gabe

[gabe]

Erik,

Good points. I don't pretend to be an expert on BNSF, and as Mark has intimated, there may be those with more knowledge than I that disagree with my take as to why punitive damages are not appropriate in this instance.

However, I see it a lot like your example of the doctor. BNSF may be able to enact better policies to prevent such accidents in the future; but I don't equate that to being malicious. I see it as no different than a doctor who could have saved a patient with one procedure but relied on another commonly used practice. The doctor is, at worst, negligent not malicious and deserving of “punishment.”

BNSF has an army of lawyers much smarter than I that know what kind of trouble they would be in if it can be shown that their practices are malicious. Only lunacy would cause BNSF to maliciously allow such an accident to come about.

That is just my take. I claim to be right about the law; I do not claim to be right about my contention about BNSF. You, and others, may be right . . . I just can't imagine a BNSF exec saying we are going to allow our railroad to do this practice that might injure 100 people and expose us to punitive liability.

What I can see BNSF execs saying in the future is we need to avoid ALL commuter railroad operations and do anything and everything to get rid of them; they just expose us punitive damage liability for something that will inevitably happen again as the result of unforeseen negligence that will be misconstrued as maliciousness.

Hence, why I think inappropriate applications of punitive damages stunt the growth of society.

Gabe

[oltmannd]

Gabe-

A can of worms! If BNSF decides that allowing Metrolink trains on their track is that practice that exposes them to potential punitive damages, their solution would be to toss Metrolink at the next opportunity - which is precisely the stand-off we have between passenger agencies and frt rail many places, no?

[joesap1]

Mark: As to your first question, it is standard operating procedure for ambulance chasing lawyers to get 50% of the settlement for no upfront fees. As the the tax liability, you are right when you say the person can escape paying the government the other half, if they are smart.
The woman in this case did suffer some physical injuries. My question is whether the extra 7.5 million was right.
I am still angry over the woman who placed hot coffee between her legs. Then when she spilled it and was burned sued McDonalds for millions and the jury agreed.
This case was only outdone by the widow of race car driver Mark Donohue(one of my favorite drivers) who sued Goodyear Tire in the early 1980's. She claimed that Goodyear made a defective race car tire that caused Mark's death at the Austrian Grand Prix practice in 1975. No one examining the remains of the said tire could realy prove that it was defective. It was truly just a racing accident. But deep pockets won out again and the jury gave her millions.
BNSF was at fault in this accident. But was the settlement fair or just a way to get rich quick?

[Modelcar]

...Can't comment on above legal issues but seeing Mark Donohue's name again reminds me to agree, he certainly was one of the best. Too bad he left so soon.

[gabe]

Joe,

I, as a lawyer, do not dismiss your anger. I think you have every right and a reason to be angry, and you, I, and the rest of society have “suffered an injury."

Huge and unwarranted punitive damage awards directly affect you and I and directly inhibit our choices. It is not as if a company suffers a multimillion dollar judgment for an act they felt they tried to avoid and society continues to have the same services available to it. There is a huge list of things we can't do because people are just too scared of large punitive damage awards.

Right now their are HUGE sections of the country that have to have their children born in an emergency room or travel 100s of miles in order to have a doctor that specializes in child birth. Because of huge awards, doctors are concluding that delivering babies is a money losing proposition and just don't do it.

I will guarantee that every major railroad that has metro trains travel on their lines currently has their legal division working overtime to try to figure a way to avoid such lawsuits. They are saying to themselves, our actions were not malicious and 100 injured x 8.7 million will put us out of business. The end result is to say, hey, we aren't going to play any more. Get Metro off our lines.

As I said earlier, I think there is a time and place for punitive damage awards, but when they are instituted in instances when the actor did not act maliciously, they have an incredible chilling effect--and thus restrict our choices as a society.

I think metro-rail is a great benefit to society, I don't think the accusation that BNSF acted maliciously even passes the "red-face test," and I think we are all going to suffer from this award because right now BNSF and other rail companies' lawyers are going to be telling CEOs that they can only lose money--or be driven out of business--on metro rail and they should simply get out.

So, the next time you take a big breath of smog, are stuck in traffic, and see a rail line next to you that could have reduced both problems, thank the jury.

Gabe

P.S. Even if you are pro-plaintiff, you should not like this suit. The only possible outcomes (and you can quote me on this) of this suit is (1) a federal law severely restricting a plaintiff’s ability to file suits in such instances, (2) railroads successfully kicking metro rail off their lines, (3) government ownership of railroads (which would in turn invoke sovereign immunity and completely end such lawsuits).

Accordingly, because a very small group of people get 8 times the amount that a jury determined would “make them whole from their injuries” all future plaintiffs are going to get less to no recovery or be forced to drive to work—which is much more dangerous than taking the train and most people involved in accidents do not have the deep pockets as railroads.

Big recovery for the plaintiffs today = no recovery for the plaintiffs of tomorrow. The losers by far outweigh the winners in this one.