Brotherhood of Locomotive Engineers
Division 758

Richard E. Etienne
Vancouver, WA
rick@etnsplace.com

By Linda P. Campbell
Star-Telegram Staff Writer 

FORT WORTH -- A civil trial over a railroad engineer's death ended abruptly yesterday without a verdict but with a $10 million fine against a railroad for what the judge called "false, concocted" evidence. 

State District Judge Bob McGrath declared a mistrial and levied the unusually harsh sanction after concluding that the defendant, Fort Worth- based Burlington Northern Santa Fe Corp., had misrepresented a railroad distance signal that was shown to the jury. The ruling came as the trial entered its third week.

The judge also ordered the railroad to pay $210,000 for the plaintiffs' court costs and attorney fees, and fined BNSF attorney Doug Poole $10,000 for saying the company did nothing wrong.

The disputed evidence, known officially as "Exhibit No. 6," consisted of a dark wooden post with the metal railroad signal box attached near the top. The engineer's family claims that the train's crew members lost their bearings in heavy fog and collided with a second train because the signal was not working.

The signal in place at the time of the crash, which occurred in Enid, Okla., no longer exists. McGrath said that, among other things, the exhibit prepared by the railroad was not typical of the original signal. Also, the exhibit was put together from pieces
collected for the trial, rather than being transferred intact, according to court proceedings.

Moreover, McGrath said, a BNSF representative testified that before the trial, he had wiped dirt from a shiny surface inside the signal housing, a metal box that contained a lens, mirror and light bulb.

The railroad called that an innocent act; McGrath called it tampering with evidence.

The railroad said it did not misrepresent the exhibit.

"We know our witnesses and attorneys did nothing wrong," company spokesman Richard Russack said. "We believe no sanctions are appropriate. We are filing an appeal, and we are confident these sanctions will be reversed on appeal and we will be fully vindicated."

McGrath said the railroad's actions violated lawyers' ethics rules as well as the Texas Penal Code. He ordered the exhibit turned over to the district attorney's office for an inquiry into whether criminal charges should be pursued.

Intentionally tampering with or fabricating physical evidence is a third-degree felony, punishable by two to 10 years in prison.

"I don't know what it takes to send a message to a corporation with a net worth in excess of $5.9 billion," McGrath said during a hearing outside the presence of the jury. "I would assume that a sanction of $10 million would be sufficient for the railroad at the highest levels to look at their conduct in this case."

The judge, who indicated that he spent the weekend considering what action to take, ordered that half the $10 million fine should go to the family of Randy Mann, the Burlington Northern engineer whose family sued over his death in a collision Feb. 21, 1993.

The other half must be paid to the Texas Center for Legal Ethics, as Mann's family requested.

McGrath gave BNSF 30 days to pay the $210,000, with the $10 million payable in 90 days. He said Poole should pay his fine within 60 days.

"This will not stand. It cannot stand," Poole said.

The suit, filed in 1994, involved Mann's death in a collision of two freight trains. Mann, 43, died weeks before his son, Jason, turned 18.

By the time the 10,000-ton grain train braked in the heavy fog, it was too late to keep it from sliding into an intersection, where it was hit, said Art Brender, the family's lead attorney.

The railroad claims that the broken signal didn't cause the wreck. Poole said evidence shows that Mann knew where he was and that he ran a red light closer to the intersection where the crash occurred.

Poole said it is common to use so-called demonstrative exhibits. But Brender said the exhibit was not similar to the signal at the scene.

Bill Peterson, whose testimony about wiping the mirror helped provoke the sanction, said he was simply removing dirt before measuring the device.

"We did not manipulate evidence," said Peterson, BNSF's signal engineering director.

However, McGrath said the railroad represented the exhibit as coming from Midlothian when only the signal housing box came from there. The box was attached to other pieces from Oklahoma City.

The bulb in the exhibit was also different from the one that would have been used in the original signal.

After handing down the sanctions, McGrath said, "If what I have done does not comply with the Supreme Court's wishes with regard to sanctions and inherent powers of a trial court to manage litigation. ... I beg the Supreme Court to give this court some direction on how ... does the court sanction and get the message to a defendant so this conduct stops."

Federal law that allows railroads to be sued for an employee's death strictly limits damages. Brender said he would probably have asked the jurors to award $1.5 million if they had gotten a chance to decide the case.

Jason Mann, 25, said, "The main thing that I feel about the whole thing is just frustration that the railroad has gone to such great lengths to keep my father's story from coming out in the courtroom."

A new trial is expected to be scheduled. McGrath had sent the parties to mediation Thursday, but no settlement was reached.


Linda P. Campbell, (817) 390-7867