Hennepin County judge fines BNSF $4.6M for misconduct during injury lawsuit

The Burlington Northern Santa Fe Railway Co. has been smacked with a $4.6 million misconduct penalty by a Minnesota judge for destroying evidence — and it's not the first time.

Hennepin County Judge Amy Dawson ordered the penalty late last month in connection with the lawsuit filed by former Fridley rail yard employee Scott Kowalewski. The penalty came on top of $15.3 million awarded to Kowalewski by a jury in February. Dawson scolded BNSF for "misconduct" leading up to the trial that included concealing and destroying evidence — nearly identical to a judge's findings against the railroad in 2009.

BNSF spokeswoman Amy McBeth said the company would appeal Dawson's order, in part because the trial court refused to hear testimony from live witnesses and reached conclusions based on assertions from Kowalewski's lawyer.

But BNSF has appealed similar judicial sanctions in the past and lost.

In 2009, Washington County Judge Ellen Maas said BNSF had engaged in a "staggering" pattern of misconduct by lying and concealing evidence in the 2003 deaths of four young people in a collision with a train at a malfunctioning crossing gate in Anoka.

Maas slapped the railway with a $4 million penalty — on top of a $21.6 million jury award for the families of the victims.

When BNSF appealed, the state Supreme Court upheld the penalties.

In Kowalewski's case, he was working four years ago at a Fridley rail yard when he started to feel a burning in his chest. He later collapsed in a break room and was taken to a hospital.

Lawyer Paula Jossart said her client was unaware of leakage from one of the cars carrying "wellhead casing oil" from fracking, or hydraulic fracturing, sites in Texas. Later testing determined that he'd been exposed to a highly toxic cocktail of "various hydrocarbons, including benzene, hydrogen sulfide, and toluene."

The lawsuit said BNSF didn't tell doctors at the hospital about his possible exposure to the toxins and brushed off the incident.

Shortly thereafter, Kowalewski, who is 53, began losing motor function and the ability to write. He was diagnosed with a progressive neurological disorder and filed the lawsuit in January 2017, saying he had not been warned about the danger of exposure to crude oil.

Dawson's order said BNSF "likely exacerbated" Kowalewski's condition by failing to comply with court orders requiring the company to produce 11 hydrocarbon cars that had been at the rail yard on the day he became ill. The company also didn't provide shipping papers or documents that detailed the contents of the cars.

The company has said the claims were false and that BNSF wasn't responsible for Kowalewski's health problems. "BNSF believes appellate review of this matter is necessary and it looks forward to an impartial review of the facts of this case," McBeth wrote in the statement.

Kowalewski's lawsuit alleged that the company violated the Federal Employers' Liability Act governing railroad workers' rights. Jossart also claimed — and the judge later agreed — that the rail company had destroyed crucial evidence in the case and misled federal investigators.

The misconduct penalty was calculated at 10 percent annual interest on the $15.3 million verdict dating from the initial injury in January 2014 to the filing of the lawsuit. Dawson also ordered BNSF to pay attorney's fees of $1.1 million and expenses of $89,600.

Records show BNSF had previously reported at least seven similar leaks, including two in the Northtown yard in October 2013, according to the suit.

Judges in Missouri, Colorado, Texas and Washington state have called out the railroad for bad behavior in other cases.

In the 2003 Anoka case, a westbound freight train traveling about 60 miles per hour collided with Brian Frazier's Chevrolet Cavalier as it crossed the tracks slightly after 10 p.m. on Ferry Street, just north of Hwy. 10.

BNSF claimed Frazier ignored a warning signal at the crossing gate. The victims' families said the gate wasn't working. A jury placed 90 percent of the blame on BNSF.

Maas faulted the railroad for destroying a computer disk that recorded the train's speed and failing to disclose previous problems at the intersection.

Killed in the crash were Frazier, 20, of Newport; Shannon, 17, of Ramsey; Corey Chase, 20, of Coon Rapids, and Harry Rhoades Jr., 19, of Blaine.