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 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