21

March
Mischief Makers Beware: Court Sanctions Railroad For Destruction Of Evidence And Litigation Abuses

A week before trial was scheduled to begin in Kowalewski v. BNSF, a Hennepin County judge sanctioned the railroad for its extensive cover-up and litigation abuses.  This misconduct included destruction of and intentional failure to preserve evidence at the scene; destroying shipping papers for the railroad cars involved; destroying video of the railroad yard; paying witnesses; conducting a sham investigation; making false statements to the FRA; refusing to comply with the Court’s orders; and other discovery and litigation abuses were uncovered during the course of the case.   The entire 42-page order is attached here.

As part of those sanctions, the Court found BNSF liable as a matter of law for Mr. Kowalewski’s progressive neurological injuries.  Beyond the railroad’s misconduct in this case, “even more troubling to the Court is that BNSF’s behavior in the present case is clearly part of a pattern and practice of behavior that extends nationwide.”  This was based on numerous other courts previously sanctioning BNSF for its misconduct.

The case involved toxic exposure in a hump yard, in which BNSF was mishandling tanker cars full of petrochemicals from the oil fracking fields while making up a train headed for Canada.  The cover-up began within minutes of the exposure and continues still.

Bolt Hoffer Boyd attorney Joe Sayler was co-counsel on the case.  Two weeks after the sanctions order, a week-long trial culminated in a $15,343,753 verdict for Mr. Kowalewski.  Even through trial, the plaintiff’s attorneys were uncovering new, significant abuses by the railroad.  The accompanying 42-page order has most of the details.  There will be an additional hearing in the coming weeks to determine monetary sanctions (including attorney fees/costs and sanctions to deter BNSF’s future misconduct) as well as a hearing for BNSF and their counsel to show cause why they should not be held in contempt.