26 April 2006
U.S. Judge in CP Rail Derailment Case Rules Against Exemptions
Bismark North Dakota - A judge hearing lawsuits filed by hundreds of people seeking damages from
Canadian Pacific Railway for a deadly derailment and chemical spill near Minot, N.D., said U.S.-government regulated
railways are not exempt from all legal claims.
Judge Tony Leung has refused to dismiss the cases filed in Hennepin County District Court in Minneapolis, which is the U.S. headquarters
of the Canadian Pacific. The cases stem from the 18 Jan 2002, derailment on the western edge of Minot that sent a cloud of
toxic anhydrous ammonia over the city.
The railway's lawyer said Leung's December ruling not to dismiss the lawsuits forced Canadian Pacific to admit liability in some of the
cases.
"We admitted liability because (Leung) came to the decision he came to," lawyer Tim Thornton said.
Leung disputed that, saying one reason for the railway's decision to admit liability might be "the possibility that a jury may look
askance" at its track maintenance and other actions in a six-year period before the Minot derailment.
A Minneapolis jury in February awarded four people nearly $1.86 million US for injuries they suffered in the 2002 wreck. More trials
are scheduled.
Leung's latest statements came this week in an order denying the railway an expedited appeal of his December decision not to dismiss the
lawsuits based on federal pre-emption, a concept that holds the railway may not legally be sued, since it is regulated
under the Federal Railroad Safety Act.
"A comprehensive appeal of this court's decision on the pre-emption issues will undoubtedly advance the ultimate
disposition of this litigation," Leung said in his order.
"But to do so in a piecemeal fashion will, in this court's opinion, accomplish the exact opposite: more protracted
litigation."
A federal judge in Bismarck has cited pre-emption in dismissing a class-action lawsuit stemming from the
derailment but cases continue to go to trial in state court in Minnesota.
Mike Miller, a Fargo lawyer who is representing hundreds of plaintiffs, said Tuesday that Leung's decision is "a very strong
step" to moving forward with more trials. Miller had not yet read the order and declined further comment.
Leung also issued a lengthy supplement to his December ruling on pre-emption, expanding on his reasons.
The judge cited case law in detailing how pre-emption does not apply in all cases and said the U.S Supreme Court's view is
that the concept should be used "reluctantly."
Leung also said Canadian Pacific does not meet all the requirements for pre-emption in the Minot case.
For example, the judge said, Canadian Pacific uses lighter rail in the Minot region than in other areas and had a derailment along the
same stretch in 1994 that burned a teenaged boy, Chad Yale. Leung said the railway paid the Yale family nearly $24 million in a
settlement.
"The frequency of problems and the local nature of the hazard itself result in an essentially local safety concern which is not
even of a statewide character, much less capable of being adequately encompassed within national uniform standards," Leung said.
The U.S. National Transportation Safety Board ruled inadequate track maintenance and inspections were to blame for the 2002 derailment,
a finding the railway disputed.
Thornton, the railway lawyer, noted federal judges have ruled the opposite from Leung, a state district judge.
"I think federal judges are pretty much charged with interpreting federal cases," he said.
U.S. District Chief Judge Daniel Hovland in Bismarck, in dismissing the class-action lawsuit in North Dakota, cited in part
a 2000 derailment and chemical spill case in Scottsbluff, Neb. In that case, appeals judges ruled the violation of a federal regulation
or law "is generally not recognized as negligence" under Nebraska law.
Leung said many aspects of the Scottsbluff and Minot cases "differ materially and substantially." In the Scottsbluff case,
"there was no essentially local safety hazard," the judge said.
Leung also noted Hovland, in his ruling, said the pre-emption law can be unfair to people who are injured by railway
negligence. Courts should be "reluctant to conclude that Congress would pass a law" that would be unfair to innocent
bystanders, Leung said.
U.S. Representative Earl Pomeroy, a North Dakota Democrat, called Leung's explanation "a good dose of common sense analysis."
U.S. Senator Byron Dorgan, who is a member of the Senate commerce committee, which oversees the regulation of railways, said he also
welcomed Leung's statements.
The next derailment cases are set for trial in Minneapolis on 8 May 2006. Miller, who represents six of the cases, said
11 total cases involve 24 individual plaintiffs. There will be two consecutive trials, involving 12 people each, he said.
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