Judge Throws Out BNSF Penalty

The judge who fined Burlington Northern Santa Fe Corp. $10 million for presenting what he called "false, concocted" evidence in a wrongful death trial threw out the penalty yesterday and removed himself from the case, the Fort Worth Star Telegram reported.

State District Judge Bob McGrath said his sanctions were premature because they were announced without a hearing.

McGrath imposed the fine and declared a mistrial last week after concluding that the Fort Worth-based railroad misrepresented a distance signal that was shown to the jury. He made the ruling as the trial entered its third week.

The family of BNSF engineer Randy Mann sued the railroad after he died in the February 1993 collision of two trains in Enid, Okla. Mann's family contends that he drove through a broken signal on a foggy night, leading to the fatal collision. 

The railroad says the broken signal was too far from the intersection to have caused the wreck.

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

The judge then ordered the distance signal transferred to the Tarrant County district attorney's office for investigation of the possibility of criminal charges. Intentionally tampering with or fabricating physical evidence is a crime. Yesterday's order, however, canceled the referral as well as disciplinary action against attorneys.

"We are pleased with the order and the setting aside of sanctions," railroad spokesman Richard Russack said.

Art Brender, attorney for Mann's family, said he won't give up.

"We're not going to let the railroad off the hook," he said.

In a written statement, the plaintiffs said they were "shocked and disappointed that Judge McGrath, without a hearing, reversed his decision. ... They [family members] just don't understand how this could happen, given what the railroad did in court."

The case was not immediately reassigned. It was unclear yesterday when a new trial will begin.

Joe Spurlock II, a professor at the Texas Wesleyan School of Law who is not involved in the case, said McGrath's decision to set aside the
fine is not uncommon.

"It's not that unusual for judges to have second thoughts," said Spurlock, a former trial and appellate judge.

He said a new judge could hold a hearing on sanctions.

The disputed evidence is a dark wooden post with a metal signal box attached near the top.

In imposing the fine, McGrath said that the exhibit the railroad presented in court was not typical of the original signal, that the company put it together from separate pieces without telling the court and that a company official wiped a shiny surface clean before the jury saw the evidence.

The railroad maintains that it neither fabricated nor tampered with evidence.

The $10 million was to have been split evenly between Mann's family and the Texas Center for Legal Ethics.