http://www.kare11.com/news/news_article.aspx?storyid=826687&catid=391
Yep. Just got done reading the article over lunch.
Ouch. This is a black, black eye for BNSF.
Here is the article in the Minneapolis Tribune.
http://www.startribune.com/local/east/64462297.html?page=1&c=y
In everything it says, plus in all of the discussion we had in a long thread on this topic last summer, with all of its references, I have yet to hear any clear explanation of why BNSF is at fault. I have yet to hear convincing proof that the gates and/or signals failed to activate.
The highway patrol claims to have proven that the vehicle could not have gotten into the position where it was hit if it had run around the lowered gate, so therefore, the gate was not lowered. Fair enough, but I don’t believe they proved that the vehicle was where they say it was when it was hit. That evidence depends on determining the precise point of impact on the assumption that it must coincide perfectly with the exact beginning of an exploding debris field that ultimately covered several hundred square feet.
If they were just fifteen feet off in their determination of the point of impact, it refutes the conclusion that the driver was where they say he was.
I seem to remember in that thread, we had someone claiming to have served on the jury for the case. Can't recall if we ever got anything conclusive from his experiences.
Also, something I was going to note in the original post, there are now quiet zones not too far away from where this happened(actually, I can't remember where this accident happened, so it may be the crossing itself).
Typical liability verdict. The party with the most money is ALWAYS at fault.
Reality TV is to reality, what Professional Wrestling is to Professional Brain Surgery.
It doesn't sound to me like BNSF is the victim here:
By PAUL LEVY, Star Tribune
"The company's conduct stunned legal experts."
"In interviews, Minnesota court officials could not recall another major Minnesota case that involved allegations of such pervasive misconduct. Charges of tampering are extremely rare, Minnesota courts spokesman Kyle Christopherson said."
"Bob Pottroff, a Kansas-based attorney representing the families, said Burlington Northern's conduct is "unprecedented." "We can't find a parallel case with so many levels of abuse," said Pottroff, a national expert on railroad cases."
"Among the railroad company's biggest blunders:
• The railroad's failure to disclose its awareness of previous signal problems at the crossing.
• The destruction of records relating to work done on eight feet of track at the crossing.
"It was revealed that a work gang had, in fact, worked on the approach track at the Ferry Street Crossing the day before the accident and that, shortly after the accident, the signal system had been revised,'' Maas said in her ruling."
wjstix It doesn't sound to me like BNSF is the victim here: Judge: Railroad engaged in 'staggering' pattern of misconduct By PAUL LEVY, Star Tribune "The company's conduct stunned legal experts." "In interviews, Minnesota court officials could not recall another major Minnesota case that involved allegations of such pervasive misconduct. Charges of tampering are extremely rare, Minnesota courts spokesman Kyle Christopherson said." "Bob Pottroff, a Kansas-based attorney representing the families, said Burlington Northern's conduct is "unprecedented." "We can't find a parallel case with so many levels of abuse," said Pottroff, a national expert on railroad cases." "Among the railroad company's biggest blunders: • Losing or destroying a computer disk that recorded the train's speed and other factors on the night of the collision. The disk would have revealed whether the victims were given adequate warning time at the crossing. A laptop containing the data was also destroyed. • The railroad's failure to disclose its awareness of previous signal problems at the crossing. • The destruction of records relating to work done on eight feet of track at the crossing. "It was revealed that a work gang had, in fact, worked on the approach track at the Ferry Street Crossing the day before the accident and that, shortly after the accident, the signal system had been revised,'' Maas said in her ruling." http://www.startribune.com/local/east/64462297.html?page=1&c=y
Yes, it doesn't sound like BNSF is the victim, but it all depends on what these allegations really amount to. They sound bad, but are they really as dishonest, and bad faith as they sound, or are they just being spun that way by the plaintiff’s attorneys? I can’t tell.
This picture of bad faith on the part of BNSF has been used to establish the signal failure. In other words, the premise is that since BNSF cannot prove the signals worked, they must have failed, and BNSF cannot prove the signals worked because nothing they say can be trusted to be true.
I suspect that the signal data evidence was quite complex, and the plaintiff’s attorneys were able to manipulate that complexity in such a way so as to paint a picture for the jury that the complexity was actually deceit on the part of BNSF.
I have no law experience but I have never heard of a judge adding to an award (any Mn lawyers here?). Usually judges reduce awards. We really need more information on what BNSF did or did not do. Since this was a fatal accident does anyone know if NTSB jurisdiction could have been invoked and could that have delayed turning over any information to state police?
If these extra money awards that the judge awarded were because of BNSF "omissions or lying on depositions" then evidence of these items will probably be turned over to some type of prosecutor. If there is sufficient evidence of BNSF employees "non ethical conduct or covering up" including BNSF attorneys then there may be criminal charges filed.
One important item are the listed procedures that are to be taken at any accident. These will be laid out in the incident investigation manual contents that BNSF had at the time of the accident. Probably the manual has been extensively revised or soon will be revised.
$3M of it was awarded for the families' time, due to BNSF allegedly delaying legal proceedings for up to a year, while the other $1M was for legal proceedings.
http://cs.trains.com/trccs/forums/t/153586.aspx?PageIndex=1
blue streak 1 I have no law experience but I have never heard of a judge adding to an award (any Mn lawyers here?). Usually judges reduce awards. We really need more information on what BNSF did or did not do. Since this was a fatal accident does anyone know if NTSB jurisdiction could have been invoked and could that have delayed turning over any information to state police? If these extra money awards that the judge awarded were because of BNSF "omissions or lying on depositions" then evidence of these items will probably be turned over to some type of prosecutor. If there is sufficient evidence of BNSF employees "non ethical conduct or covering up" including BNSF attorneys then there may be criminal charges filed. One important item are the listed procedures that are to be taken at any accident. These will be laid out in the incident investigation manual contents that BNSF had at the time of the accident. Probably the manual has been extensively revised or soon will be revised.
The Judge's Sanctions Order can be found by clicking on the link below. In all seriousness, criminal charges need to be pursued in this matter.
http://www.docstoc.com/docs/13307821/BNSF-Sanctions-Final-Draft
Reading the link provided by BlueStreak1 :
One has to wonder if the shear incompetence of the Signa Maintainer was designed to protect his eminent departure to retirement; possibly, the tact taken by the BNSF legal team smacks of an approach orchestrated by a "Katzenjammer Kids" (the Wilhelm Busch,cartoon) scripted episode. It seems, almost to be a comedy of errors comitted by the Marx Bros.
I would suspect that as previously suggested by another poster, the BNSF is/or has rewritten its manuals regarding the specifics of handling data downloaded in the aftermath of such a terrificly tragic episode. At the very least they are/or should be examining on-going legal strategems for this type of case senario. Not to mention allowing some of its staff legal eagles the opportunity to find other career opportunities.
Bucyrus Yes, it doesn't sound like BNSF is the victim, but it all depends on what these allegations really amount to. They sound bad, but are they really as dishonest, and bad faith as they sound, or are they just being spun that way by the plaintiff’s attorneys? I can’t tell. This picture of bad faith on the part of BNSF has been used to establish the signal failure. In other words, the premise is that since BNSF cannot prove the signals worked, they must have failed, and BNSF cannot prove the signals worked because nothing they say can be trusted to be true.
Well to spin it the other way, if may be that the assumption was made that BNSF would have saved the evidence if the evidence had been in their favor. So the fact that some evidence was destroyed shortly after the accident by BNSF leads one to believe the evidence had to show some negligence or failure on BNSF's part.
wjstix Bucyrus Yes, it doesn't sound like BNSF is the victim, but it all depends on what these allegations really amount to. They sound bad, but are they really as dishonest, and bad faith as they sound, or are they just being spun that way by the plaintiff’s attorneys? I can’t tell. This picture of bad faith on the part of BNSF has been used to establish the signal failure. In other words, the premise is that since BNSF cannot prove the signals worked, they must have failed, and BNSF cannot prove the signals worked because nothing they say can be trusted to be true. Well to spin it the other way, if may be that the assumption was made that BNSF would have saved the evidence if the evidence had been in their favor. So the fact that some evidence was destroyed shortly after the accident by BNSF leads one to believe the evidence had to show some negligence or failure on BNSF's part.
Your point is valid. A destruction of evidence certainly suggests a cover-up by the guilty party. I have printed out the entire 45-page document, and am reading every word, but I’m only on page 8.
So far, I am seeing a list of items characterized such as this: BNSF intentionally lied when they did X, Y, and Z. But there is not enough exploration of X, Y, and Z for me to determine the actual intent of BNSF. Every mention of an XYZ point raises 100 questions about the context and overall intent. But, I will keep reading.
One thing that strikes me is just how many issues come into play with the handling of the bungalow data once an accident happens. There are many do’s and don’ts, and with a big corporate bureaucracy being very jumpy about what the data shows and how it will be interpreted, I can see how it could have gotten all gummed up, even if the data actually vindicated the BNSF. And once it became gummed up, it would create a marvelous opportunity for the plaintiff’s attorneys to spin the mess into a picture of intentional deceit to destroy evidence presumably because that evidence showed BNSF negligent regarding the signal operation.
And thanks user, "Informed" for linking the judge's Sanction Order.
jchnhtfd It really is a shame that there was no NTSB investigation, but there wasn't, at least that I can find. They do not, after all, have the money nor the time to investigate every railroad crossing boo-boo. The reason it is a shame is that the NTSB is pretty good in the impartiality department, something which, regrettably, I do not find to be the case otherwise -- and it would be nice to know what really did go wrong, so as to see what might be done (if anything) to reduce the chance that it will happen again...
It really is a shame that there was no NTSB investigation, but there wasn't, at least that I can find. They do not, after all, have the money nor the time to investigate every railroad crossing boo-boo. The reason it is a shame is that the NTSB is pretty good in the impartiality department, something which, regrettably, I do not find to be the case otherwise -- and it would be nice to know what really did go wrong, so as to see what might be done (if anything) to reduce the chance that it will happen again...
How's this for a speculative scenario.
When the track forces were working on the tracks that day (we are not told the nature of the work) it caused the crossing warning system to operate. Track circuits might be disconnected, or work equipment created an occupancy. To avoid the need to flag road traffic it is not unknown for maintainers to make minor adjustments to the wiring to avoid unnecessary operation of the lights, bells and gates. Indeed, I think this is fairly common practice at a major crossing unless the work is of short duration. It is the safer procedure if trains are still running on other tracks and their automatic circuits can remain fully operational.
Naturally everything has to be restored and checked once the track work is complete. Unfortunately we are all human; perhaps it was a long day or maybe some other railroad or personal issue required urgent attention. Somehow the restoration was bungled or incomplete. If proof existed, it might be grounds for a charge of criminal negligence causing death against the person(s) responsible, the same ones who were also involved in the quick disappearance of that key piece of evidence. But this is just a fairy tale, even if not everyone lived happily ever after. The reality is probably different but will never be known.
There was a sideswipe in the Toronto area around 30 years ago that has some analogies. In that case, the connections to the power switch at one end of a crossover must have been reconnected backwards after some work. The signal circuitry cleared both trains with green signals to proceed straight through; fortunately only one of the facing point switches was reversed and nobody was killed. The incident happened right at the beginning of the afternoon rush hour (one train was a deadhead GO train) and I am sure the dispatcher was pressuring to get his railroad back right away.
I don't think an NTSB investigation would have been able to make any better determination since they would also have to depend solely on the surviving version of the crossing download and decide if it was a complete and accurate record. Obviously the court felt otherwise, and presumably so did the experts retained by the plaintiffs.
As others have commented, it looks like BNSF was let down badly by its local employees and managers, and especially its legal team. If they were trying to cover up the initial cover-up(s) it backfired spectacularly, and the corporation as a whole became a victim financially.
Well, perhaps. Perhaps not. At the risk of offending some of my friends who are litigation lawyers, I would remind all and sundry that the purpose of litigation is to win a case; it is always nice if the truth is uncovered at the same time, but that isn't the objective of the exercise, and it doesn't always happen. And clearly a litigation lawyer's objective is to win the case for his or her client -- and so is the objective of the experts the litigation lawyer hires (I know, I've been one quite a number of times). One is obliged to stick to the truth in what one says -- but unless one makes a very stupid mistake, one is not obliged to mention aspects of the truth which are damaging to one's client. Believe me. Further, while experts are not supposed to speculate, lawyers can and do -- so long as they don't say anything which they know to be false.
I am not trying to defend BNSF, nor am I trying to defend the folks who found themselves on a railroad crossing at the same time as an oncoming train -- for whatever reason. Rather, I would like to know what happened, so as to prevent it from happening next time. The NTSB -- and related organizations in many western countries (Canada's TSB, the UK's RAIB, etc.) are experts at figuring that out. It's their job. And they can often do it despite missing or partial data, as appears to be the case in this instance. While they may, and often do, issue safety regulations, to quote one of those organizations,
We achieve this by identifying the causes of accidents and other aspects that made the outcome worse.
Our investigations are entirely independent and are focused solely on safety improvement - we do not apportion blame or liability, nor do we enforce law or carry out prosecutions."
I read most of the 45 page Memorandum - enough to get the flavor of what was going on. I'll probably wind up regretting speculating about this, but the facts and the judge's recitation and analysis are pretty compelling. So:
Q: "What dog didn't bark yet ?"
A. Sanctions against BNSF's trial defense counsel - they are often imposed simultaneously. Not only was the employee a rogue, but the pattern of deceit and misrepresentation during the discovery phase points at BNSF's attorney as well - unless he was really 'led down the primrose path', or was governed by client instructions - see below. But conduct like that = obstruction of justice risks suspension or disbarment.
Note that not far into the Memorandum, the judge points out that BNSF had substitute counsel representing it in the motion for sanctions.
Q: Why do you think that happened - because BNSF was thrilled about the trial result ?
A. No - it was damage control.
Now here's a couple of loaded questions to ask BNSF's General Counsel at next year's stockholder's meeting:
Q-1: "Were you aware of or did you direct the actions of defense counsel in this case ?"
If yes, you should resign immediately for breach of fiduciary duty in costing the company that much money.
If no, you should also resign immediately for failure to monitor and control the outside counsel that it is your duty to hire and supervise. And by the way:
Q-2: "Why have you not already instituted a legal malpractice/ professional negligence/ intentional tort claim against that attorney for that conduct ?"
Or - 'If he warned you against that conduct - see response to question Q-1 above."
Again: the defense counsel may have had very good reasons for doing what he did - but we haven't heard or seen them yet - much like the railroad's lack of evidence on the accident itself. So I may also be judging him based on a dearth of evidence, not on actual facts on the issue. But the implications and consequences for the railroad, the legal system, and the public at large are serious and far-reaching enough to justify some attempt at commentary and enlightenment here, I think.
- Paul North.
It would have been a great case study for the advancement of Operation Lifesaver, but someone had to tamper with evidence and it's totally lost now.
After reading the sanctions order, I can see that there sure are problems with the evidence. The unexplained loss of the original data is a major problem, but I cannot conclude what it means. It could mean any of the following:
1) The data was lost by error in judgment about what iteration to preserve after the initial download.
2) The data showed that the signals functioned properly, but also showed something that BNSF felt would work against them, so they gambled that they would be better off without revealing the data.
3) The data showed that the signals failed.
All of the miscues after the initial loss of data seem to indicate intent to correct some perceived problem arising from that initial loss of data.
The problems with the data evidence handling do no prove that the signals failed, although they could be interpreted to give evidence to such a failure. The work on the crossing circuit just before the accident, and the problems with that evidence being withheld reinforces the signal failure theory that is suggested by the data being lost.
But aside from the theory of signal failure being supported by the mishandling of data evidence, the Minnesota Highway Patrol conducted a test that was said to prove that the gates were not lowered when the train hit the car. However, from what I have heard of that test, I would not conclude that it proved the gates were not lowered.
Did you catch the judge's inference or response to the plaintiff's argument, to the effect that BNSF was possibly withholding some of the HXX or HQX [etc. - can't remember exactly what those 3-letter scronyms were at the moment] software codes, supposedly to avoid giving those 'keys to the kingdom' of reading crossing signal data recorders to that portion of the bar and experts who specialize in crossing collision plaintiffs' cases ?
I'm not familiar enough with the litigation turf battles here to know if that is of strategic significance, or merely a minor tactical advantage, or an intelligence coup of some kind, or what . . . but it perhaps does explain why BNSF didn't want to let that proprietary and confidential information 'cat out of the bag', for whatever further reason.
Hope that goal was worth the price in this case - even though it seems that code data may now be loose and circulating anyway as a result of the discovery motions, orders, and sanctions in this case ?
Paul_D_North_JrDid you catch the judge's inference or response to the plaintiff's argument, to the effect that BNSF was possibly withholding some of the HXX or HQX [etc. - can't remember exactly what those 3-letter scronyms were at the moment] software codes, supposedly to avoid giving those 'keys to the kingdom' of reading crossing signal data recorders to that portion of the bar and experts who specialize in crossing collision plaintiffs' cases ?
Yes I did catch that. I could see how that might have been a motive to cover up the evidence, despite the fact that the evidence could have proven the signals worked. I can just imagine what a tangle of motives might have come into play when all the players at BNSF considered how the evidence should be handled. And they did not have much time to sort it all out. They might have gotten tangled up in their own web and caused it to backfire.
Wish I could go there! I am just coming off a one-week suspension from this forum for saying "non-PC" things about MN, WI, and SD. Gotta be careful! Deep-pocket-seeking lawyers always win in jury trials. Hope I don't get bounced again!!!
At the end of the day; the families of the victims and the BNSF engineer need to know; did the crossing signal and gate fail to activate? This is about basic common decentcy,not money. The Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks.
aricat At the end of the day; the families of the victims and the BNSF engineer need to know; did the crossing signal and gate fail to activate? This is about basic common decentcy,not money. The Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks.
My point exactly. But much more succinctly put. And as a result of this trial, we'll never know, will we?
aricatThe Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks.
You have to remember though, that if you drive through that crossing only looking at those signals and gates to see if they are clear or not, you are breaking the law by not yielding to the crossbucks. To properly yield, you have to not exceed a speed at which you can stop short of the crossing in case a train is approaching, and you have to look for trains in both directions.
So, in other words, if the signals and gates fail to activate, it is still the driver’s responsibility to look for trains. The signals and gates cannot be relied on alone to prove that it is okay to cross. This comes from Operation Lifesaver, The FRA, and MNDOT.
jchnhtfd aricat At the end of the day; the families of the victims and the BNSF engineer need to know; did the crossing signal and gate fail to activate? This is about basic common decentcy,not money. The Ferry Street crossing remains a dangerous place with very limited visability. I want those signals to work when I cross those tracks. My point exactly. But much more succinctly put. And as a result of this trial, we'll never know, will we?
Not to split legal hairs, but a more accurate way to say it, if I may barge in here: "And as a result of the mishandling of evidence, abuse of the discovery process, etc. - and since because of those actions, the trial* was then unable to or precluded from ascertaining the facts - we'll never know, will we ?"
*A trial is commonly referred to as the 'trier of fact' or the 'finder of facts', etc. - which is its primary role in our legal process and system.
By the way, for those of you who haven't yet read the judge's Memorandum Opinion: She wrote something to the effect that the actions and events in this case were bizarre, something ''like out of a John Grisham novel''.
Yeah - as is often the case, reality trumps fiction - you couldn't make this stuff up and have it be believed. Anyone care to bet how long it is before this tragic incident becomes grist for the Hollywood 'tragedy of the week' mill, or fodder for a Michael Moore/ Connie Chung/ Geraldo Rivera/ 60 Minutes type documentary expose ? I'll just wander over there and make sure that TV is off now . . .
The point about drivers being required to yield at un-activated, signalized crossings raises an interesting point about this Anoka case. How can BNSF be held responsible for the failure of the signals and gates if the law requires a driver to yield and look to make sure a signaled and gated crossing is safe to cross even if the gates and signals are not activated? If the driver gets killed because he broke the law, would he not be at fault?
The driver did break the law by failing to yield. There is no question about that.
I understand your thinking, however, just because you broke the law and got hurt on someone's property, does not absolve the property owner of responsibility. See the thread about the kids who were electrocuted while climbing on freight cars and touched the catenary.
James
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