9 October 2005
Derailment Suits Hit Courts, 3 Years Later
Minneapolis Minnesota - Nearly four years after his life was changed forever, Tom
Lundeen's focus is shifting from constant worries about his family's health to a Minneapolis courtroom where he hopes for some sign of
resolution.
The battle over injuries and damages after a 18 Jan 2002, Canadian Pacific Railway derailment and chemical spill on the
outskirts of Minot is headed for a jury trial. Pretrial motions are scheduled in Minneapolis late this week, before a Hennepin County
judge, with jury selection expected to start the following week.
The first handful of many lawsuits against the railroad are scheduled to be tried together. Attorneys say the outcome could lay the
groundwork for resolving other cases filed after the disaster that still haunts Lundeen and his neighbors.
"It's not the same as it was prior to the derailment, and it never will be," he said. "Everybody has just kind of gotten
on with their lives, but they're looking forward to hopefully getting their cases settled here sooner than later. It's been too long
already."
The derailment, which happened in the early morning hours while people slept, unleashed a cloud of toxic anhydrous ammonia farm
fertilizer. It happened within a stone's throw of Lundeen's small subdivision, enveloping the neighborhood in a deadly white mist. One
man, John Grabinger, 38, died. His wife's wrongful death lawsuit is one of the cases scheduled to be tried this week.
Hundreds of other people in Minot say they suffered burns or breathing problems, or property damage. The National Transportation Safety
Board, which laid blame for the wreck on the railroad, said 11,600 people lived in the area affected by the vapor plume.
Since the derailment, individual lawsuits against the railroad have been filed in state court in Minnesota, where the Calgary,
Alberta-based railroad has its U.S. headquarters. In a separate federal court action in North Dakota, Fargo attorney Mike
Miller represents nearly 1,000 people.
U.S. District Judge Dan Hovland in Bismarck has granted that case class action status, though the number of people who might be included
has not yet been determined.
Canadian Pacific has asked Hovland to dismiss all the North Dakota claims. He has not yet ruled on the motion, and the matter is holding
up Miller's proposal to notify everyone in Ward County that they might have a claim under the class action.
Officials of the railroad have declined to talk about the court action while it is pending.
Though separate, the lawsuits in the two states are intertwined, Miller said. Depositions in the Minnesota cases can be used in the
North Dakota cases, and some legal issues in both states have already been ironed out in Minnesota.
"Certainly the outcome of one affects the other," he said. "Clearly what a jury does in Minneapolis might not be
completely comparable to what a jury would do in Bismarck, but once we start getting jury verdicts, it's going to be more easy for
people involved in these cases to determine what appropriate recovery should be."
Miller and Gordon Rudd, an attorney in Minneapolis working on some of the lawsuits, said the standard practice in both states is for
attorneys to ask for damages "in excess of $50,000."
"I'm sure at trial, the plaintiffs are going to ask for a specific amount," Rudd said.
Neither he nor Miller would speculate on what that amount might be. Lundeen, whose lawsuit is not among the first being tried, declined
to say what numbers he has discussed with his attorney. Kristy Albrecht, attorney for the Grabinger family, did not return telephone
calls seeking comment.
Calvin Fayard, a Denham Springs, La., attorney who has been involved in about a dozen lawsuits against railroads, said it is hard to
predict what the damage awards might be if the plaintiffs win. However, he said a multimillion-dollar settlement would be
likely.
In a derailment and chemical spill in Livingston, La., 20 years ago, the 1,500 plaintiffs represented by Fayard reached a settlement
with the Illinois Central Gulf Railroad that totaled more than $38 million.
Canadian Pacific has admitted liability in the derailment for the cases being heard this week, Miller said. (Editor: CPR accepted
liability in only one death.) He said the railroad still might argue that injuries suffered by the plaintiffs were the result of their
own actions after the derailment, an argument that he said "is crazy."
"The only thing the jury needs to focus on is whether or not the individuals... suffered any injuries or damages as a result, and
what's a fair amount to compensate them for damage," Miller said. "It really cuts down the length of the trial dramatically.
Instead of looking at a five-to-six week trial, I expect they'll get it done in a week, two weeks."
Fayard said that in such cases, railroads typically try to put the burden on the plaintiffs to prove the derailment caused injuries or
damage.
The plaintiffs in the Minot derailment should not expect a sympathetic jury, he said.
"I've been in cases where the train has wrecked right down the road from the courthouse, and the jurors are extremely conservative
even to the extent that they favor the industry or the railroad," he said.
Fayard said the majority of cases in which he has been involved were settled outside of court.
"The odds are in favor of a settlement in such cases as this, when you have a lot of people involved," he said.
"A lot of times, cases settle at the steps to the courthouse," Miller said. "We're at the top of the steps right
now."
A settlement in Minnesota might affect the North Dakota case.
"If (the railroad) decided that they now have a good handle on what various types of injuries would settle for and they came to
us with a reasonable settlement proposal, we'd take a look at it," Miller said.
Lundeen, who was forced from his home for 11 weeks after the derailment and said his family suffers from lung and eye problems, does
not care if a resolution comes through a settlement or a trial.
"We'll see how (the first cases) go, and hopefully the rest of us won't be too far behind," he said.
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