Plaintiffs’ lawyers assert train case has gone off-track

When a train derailed near Minot, N.D., on Jan. 18, 2002, five overturned tanker cars released almost 221,000 gallons of anhydrous ammonia into the night air as local residents lay sleeping.

The incident spawned much litigation. Many of the Minot cases were consolidated before Hennepin County District Court Judge Tony Leung and entitled In re the Soo Line Railroad Company Derailment of January 18, 2002, in Minot, ND.

The cases have added to a national debate on whether railroads can be sued in state court. The railroads argue that the plaintiffs’ claims are pre-empted by federal law — which does not provide a cause of action.

Meanwhile, local plaintiffs’ lawyers are upset with a series of federal appellate rulings in favor of the defense in the Minot litigation. The litigation’s convoluted procedural history is difficult to follow, but here is a sampling:

  • The railroad removed one of the first filed state cases, known as the Allende case, to federal court in Minnesota under the doctrine of complete pre-emption. The plaintiffs moved to remand the case back state court, arguing that the plaintiffs asserted only state law negligence claims and that the Federal Railway Safety Act (FRSA) did not transform such claims into a federal cause of action. U.S. District Court Magistrate Judge Janie S. Mayeron found against complete pre-emption, and the derailment cases went back to state court and Leung.
  • Another group of plaintiffs, known as the Lundeen plaintiffs, subsequently filed suit in Minnesota state court. The railroad removed these cases under federal question jurisdiction because the Lundeen plaintiffs included a violation of federal law on the face of their complaint. Ultimately, the Lundeen plaintiffs amended the complaints to remove the federal allegations, and U.S. District Court Judge Richard Kyle remanded. The railroad appealed to the 8th U.S. Circuit Court of Appeals, which ruled in its favor, finding federal jurisdiction based on complete pre-emption of the negligent inspection claims.
  • The railroad subsequently removed its other state court cases, including the Allende case (for which a verdict had been rendered in February 2006) and another case — the Elm case — which was in trial. U.S. District Court Judge Michael Davis granted a motion by the Elms to remand their case back to state court.
  • The railroad petitioned the 8th Circuit for relief from the remand order via a writ of prohibition. The appellate court ordered the Elm case back into federal court and set a briefing schedule on the writ. Motions to remand have been made in the other Minot derailment cases, but no hearings have been set.
  • In a class action brought by Minot derailment victims in North Dakota federal court — Mehl v. Canadian Pacific Railway — U.S. District Court Judge Daniel L. Hovland granted the railroad’s motion to dismiss based on pre-emption as a defense (as opposed to complete pre-emption, the jurisdictional doctrine) earlier this year. An appeal of the Mehl decision is pending in the 8th Circuit.

No remedy?

The end result of this tangled web of litigation may be that because of the doctrine of federal pre-emption, the plaintiffs will lose their right to any recovery because the FRSA does not provide the injured persons a remedy.

The plaintiffs’ lawyers argue that such a result would be wholly inequitable given that the railroad has already admitted liability for the derailment in the Minnesota state court cases. The railroad’s lawyer counters that had Congress intended for the plaintiffs to recover, it would have made provision for their recovery under federal law.

The railroad’s position is simple, explained its attorney, Tim Thornton of Minneapolis. Congress enacted the FRSA in 1970 and decided that safety was best ensured through a uniform system of regulations and exclusive authority to regulate the railroads in the federal system.

It is true that some plaintiffs — even those who have received jury verdicts — will lose their causes of action if the railroad prevails, but that is the law as enacted by Congress, said Thornton.

Plaintiffs’ attorney Steven M. Hunegs of Minneapolis told Minnesota Lawyer he would frame the issue simply: “How is it that a railroad safety statute — 30 years after its passage — can be found to insulate a railroad from admitted liability in a catastrophic derailment?”

Minneapolis plaintiffs’ attorney George Eck agreed, saying that Congress could not have intended to prevent victim recovery where the railroad admitted liability. “I’m an advocate but this is a fairly-stated issue. We think the question answers itself,” he told Minnesota Lawyer.

The various twists and turns in the case have led to a “rogue result,” said Eck. “Somehow we got off into Never Neverland.”

Due process is at stake, said Ronald Barczak, one of the attorneys for the Elm plaintiffs. “The railroad is attempting to deprive innocent people of their basic constitutional rights to a jury trial. What is the railroad afraid of? Justice?”

Inver Grove Heights attorney Gregory N. McEwen, who is handling about 40 percent of the train derailment cases, questioned the long-term implications of the railroad’s strategy. He told Minnesota Lawyer that it may ultimately not be in the railroad’s best interest to escape liability when it has already admitted responsibility for the accident in open court.

“If recovery is tenuous, how many other communities are going to want railroads? Pretty soon people are going to be up in arms. The bigger issue is the impact on the railroad’s business,” McEwen said.

Plaintiffs’ attorney Richard G. Hunegs said that it is “not ridiculous” to view the railroad’s arguments as part of a tort-reform strategy.

“You’re seeing a conservative Congress trying to codify large areas of law that [arguably] pre-empt state common law,” he said. “You’re going to see these issues involving every one of the regulatory bodies. You’re going to see us swimming in pre-emption claims.”

Both sides agree on one thing — the railroad cases are chugging down a lengthy track. “These cases are by no means done. If we don’t prevail at the 8th Circuit there will be another appeal,” said McEwen.

Thornton told Minnesota Lawyer: “This case is more likely to go to the U.S. Supreme Court than any case I’ve handled.”


Minnesota Lawyer – July 31, 2006 – By Barbara L. Jones


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