Bicyclist with legal pedigree takes on BNSF railroad over accident

Robert Cattanach is used to mixing with the big boys. Cattanach is a partner at the prestigious Dorsey & Whitney law firm and a nationally recognized expert on cyber security. He is a former counsel to the Secretary of the Navy, and he represented the FBI and CIA as a Justice Department attorney. He is also chairman of the board of the Ordway Theater.

So Cattanach didn't hesitate to sue BNSF, one of the nation's largest railroad companies, over a bike accident — his own — after the company refused to pay a few thousand dollars in medical bills. For a while Cattanach even represented himself.

"I don't wear down easily," says Cattanach, who is 64 and lives in St. Paul. "I don't give up."

Cattanach won a round last week when U.S. District Judge John Tunheim concluded that Cattanach appears to have a case and rejected a motion by BNSF to dismiss his lawsuit seeking more than $350,000 in damages.

Cattanach is not your typical recreational cyclist. He was the Minnesota state bicycling champion in both the Criterium race and Road Race in the 50 and over master class in 2009.

On July 15, 2012, he was on a Sunday morning bike ride with his wife and a small group of friends when his front wheel plunged into a 2-inch-wide gap that stretched between two rails of a track at a railroad crossing at Broadway Avenue in St. Paul Park. He estimates he was going 10 miles per hour.

Cattanach, who was wearing a helmet, was thrown over the handlebars and landed hard on the street, hitting his head, breaking his collarbone, injuring a vertebra in his neck and dislocating his left thumb.

"I will never forget the terrific and abrupt sound of metal against concrete and the thud of someone hitting the pavement," said Allyson Hartle, his wife, who was riding ahead of him. "I turned around and felt sick, and there he was lying down, his hand was bloody … He could barely talk."

He was taken by ambulance to Regions Hospital in St. Paul, where he was treated and released. He said he still suffers pain in his right shoulder and neck, and he no longer participates in bicycle races because an accident could do more damage.

Cattanach said he called the railroad to inform them of the gap in the tracks, concerned that someone not wearing a helmet might have an even worse accident.

A week later, he went back to check and the gap had not been filled in, he said, so he called again to complain. Eventually, he said, BNSF dropped some asphalt near the spot but did not fully fill the gap.

Cattanach said he hadn't planned to sue, but he felt BNSF was blowing him off.

"The reason I filed the lawsuit is they wouldn't pay for the ambulance or my out-of-pocket medical costs," which he said ran into several thousand dollars. He said he was prepared to defer the issue of liability.

Cattanach said he knew better than to represent himself in a lawsuit but thought he'd do the minimum amount of work and get it resolved.

That changed when BNSF released some internal communications on the railroad crossing, which Cattanach said was required by federal law.

"When I saw these documents, I said, 'I've got to get a real lawyer,' " said Cattanach. "This is outside my area. … The BNSF has a reputation of being very aggressive, and I knew I needed some help."

A Sept. 28, 2007, e-mail from Lynn Leibfried, BNSF's then-manager of public projects, indicated the company was aware of maintenance problems. "We replaced the concrete that was in the crossing previously," she wrote. "I gather they are concerned about the gap between the concrete and the rail, however that style of concrete has a problem in all locations."

In 2008, St. Paul Park's municipal client manager, Richard Seifert, wrote Leibfried that "the condition is degrading at a rapid pace." A year later, a St. Paul Park police officer photographed the crossing, showing the same conditions in Seifert's e-mails.

On June 7, 2012, one month before the accident, city engineer Morgan Dawley sent an e-mail warning that crossing had "deteriorated further to the point that pieces of metal project upward that appear to present a safety hazard to vehicles and motorcycles and possibly rail cars."

Leibfried forwarded Dawley's message to BNSF officials, saying the city had been complaining for three years and "from the pictures they took, it was a legitimate complaint."

A BNSF roadmaster named Dale Johnson responded that he had inspected the crossing and confirmed that "it is loose and the ties are in bad shape."

Cattanach then hired the Bremseth Law Firm, of Hopkins. "Bremseth has a really good reputation and deals with the BNSF all the time," he said.

Fred Bremseth described the correspondence as "in the nature of a smoking gun, documents [showing] a significant history of prior complaints problems and safety concerns."

BNSF declined to comment on the lawsuit. "This is still an active legal case, so we will comment through the legal process," Amy McBeth, a BNSF spokeswoman, said in an e-mail to the Star Tribune.

In a memorandum filed last December urging Judge Tunheim to dismiss the case, BNSF lawyers argued "there is no evidence that the gap [responsible for Cattanach's crash] had been in existence for any appreciable amount of time before the accident."

They also argue that no one mentioned the specific gap in the documents turned over to Cattanach and no BNSF employees have testified that they knew a gap existed. Besides, they wrote, Cattanach was riding in the center lane, in violation of state statute that requires bicyclists to ride "as close as practicable to the right-hand curb of the roadway."

One of Cattanach's attorneys, Paula Jossart, responded that because of unsafe conditions on the road's edge, Cattanach took what appeared to be the safest route across the tracks. Since the crash, the railway crossing has been completely rebuilt.

In his ruling to allow Cattanach's case to move forward, Tunheim wrote, "The record reflects a long history of maintenance issues at the … crossing, dating back to 2007.

"Viewing the facts in the light most favorable to [Cattanach]," Tunheim wrote, "a genuine issue of material fact remains as to whether BNSF had notice that the railroad crossing might be dangerous to passing vehicles, including bicycles."

A settlement conference has produced no resolution, and a trial is set for Nov. 2.

Randy Furst • 612-673-4224