Star Tribune slams BNSF; railroad company fires back

I spent most of my Sunday having fun, so I haven’t given the Star Tribune’s “Collision in the Courts” debut as many readings as I’d like yet. Investigators Paul McEnroe and Tony Kennedy reviewed 200 lawsuits against railroad giant BNSF and discovered court sanctions for legal misconduct (including evidence tampering) in 13 cases and “loss of evidence or other actions that could have been classified as misconduct” in eight more.

The series — which involved the national ProPublica investigative site — found only one Minnesota case involving sanctions, but with by far the biggest fine: $4.2 million. The next-biggest award was $27,684, according to BNSF.

More than most investigations I can recall, BNSF’s views are featured prominently (as high as the 8th paragraph, on the front page) and extensively, including two sidebars that, in effect, favor the company.

If the Strib means to paint BNSF as a pre-meditated serial violator, it didn’t quite close the deal in Part One (though there are three more parts to come).

That hasn’t stopped the company from firing back with a response website: BNSF CaseFacts.

There’s some taunting:

The Minneapolis Star Tribune has spent the better part of a year and many journalists’ time combing through hundreds of cases occurring over the past 30 years trying to find a “smoking gun”. Relying heavily on materials from plaintiff’s attorneys, with a financial interest in the matter, they found little, if any true evidence of any misdeeds. The resulting story is filled with bias, innuendo and misrepresentation of the facts.

… and a lengthy list of positive p.r. and pledges, but that’s mostly misdirection on the fundamental question of whether BNSF plays by the rules when people are hurt or killed. There is some factual meat (a list of relatively puny fines) that ignores settlements that may have staved off larger damage awards.

A good example of BNSF spin is the page on the whopping Minnesota fine. It dwells on an appeals-court-ordered retrial caused by improper jury instructions.

However, the railroad does not refute the Strib’s accurate reportage that the Minnesota Court of Appeals let the legal sanctions stand, including “$999,640 in attorney’s fees linked to BNSF’s misconduct” and another $106,758 in misconduct-related costs and expenses. The remainder — $3.07 million — depends on the ultimate size of the liability, if any.

The serve-and-(likely)-volley continues Monday.

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Comments (2)

  1. Submitted by Karen Cole on 12/06/2010 - 01:54 pm.

    The trial judge sanctioned the railroad for a pattern of destroying evidence and concealing evidence. All strictly contrary to Minnesota court rules. If defendants are allowed to destroy and hold back evidence the way BNSF did, we can’t have a system of justice that works.

    The court of appeals reversed part of the district court’s decision. (And the plaintiffs are appealing that reversal to the Supreme Court.)

    But the appeals court did not reverse the trial court’s decision on the sanctions. The court didn’t abuse its discretion there.

    The amount of the sanctions was large. But the amount wasn’t just pulled out of thin air. It included the extra attorney fees and costs the plaintiffs incurred dealing with the railroad’s delays and misconduct. And the interest and investment income that would have been earned on the amount of the liability for a year. Presumably, the plaintiffs would have earned those amounts if the railroad had not delayed everything improperly.

    (The appeals court decision is here: https://docs.google.com/leaf?id=1yxMWmXN_3jBqXT50teWwrdHcGcdg8PDm6KcQlo2s2RPRYp_auDx1YXyK0_8r&hl=en )

  2. Submitted by Norman Larson on 12/06/2010 - 02:40 pm.

    Is this four-part series supposed to place the paper in contention for a Pulitzer? I heard that top management is going all out to win a “major prize.”

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