Hennepin County jury awards $15 million to rail worker who inhaled noxious fumes

Scott Kowalewski started feeling a burning "like Vicks [VapoRub] inside" his chest after breathing fumes at a Fridley rail yard four years ago.

In a lawsuit the St. Paul man subsequently filed against Burlington Northern Santa Fe Railway, he argued that he was never warned of the dangers of working with railcars hauling crude oil from northwestern Texas, and that exposure to it had caused him severe neurological damage. The rail company countered that it wasn't responsible for his health problems.

This week, a Hennepin County jury sided with Kowalewski, awarding him $15.3 million in damages, while a judge admonished the company for "misconduct" leading up to the trial, according to court filings.

BNSF, which has faced several major lawsuits over the years related to safety issues, said Friday night that the lawsuit's claims are false, that there was no evidence of a leak, that the jury was not allowed to hear key evidence, and that it plans to appeal the verdict.

"The railroad is hauling ultrahazardous products from fracking oil fields ... to the detriment of its employees and the public and not being truthful about how dangerous these products are," said Kowalewski's attorney, Paula Jossart. "A 53-year-old man was left with catastrophic injuries that will leave him basically as a vegetable at a relatively young age, with no cure and no treatment and no honesty about what happened to him."

The suit alleged that the company violated the Federal Employers' Liability Act, which governs railroad workers' rights. Jossart also claimed that the rail company had destroyed crucial evidence in the case and misled federal investigators.

On Jan. 19, 2014, Kowalewski was working as a switchman at BNSF's massive Northtown Yard terminal when he noticed a "rotten egg smell" coming from near the tracks. Unbeknown to him and a co-worker, Michael Gehrz, one of the cars that was carrying "wellhead casing oil" from fracking, or hydraulic fracturing, sites in Texas sprung a leak, his attorney said.

Kowalewski became sick from the fumes, with a burning sensation in his chest. He was taken to Hennepin County Medical Center after passing out in an employee break room. Later testing determined that he'd been exposed to "casing head gasoline," a highly toxic cocktail of "various hydrocarbons, including benzene, hydrogen sulfide, and toluene."

The company failed to warn HCMC doctors about his possible exposure to the compounds, the lawsuit said. BNSF downplayed his symptoms and later brushed the incident off as a "false alarm," Jossart said.

Over time, Kowalewski began losing motor function and his ability to write, court documents say. Eventually he received a diagnosis of a "progressive neurological disorder," which, much like Parkinson's disease, affects his ability to swallow and move.

In a sanction order issued last month, before the trial, Hennepin County Judge Amy Dawson faulted BNSF for "continued misconduct and abuses throughout the case," including not turning over certain evidence to the plaintiff before trial in violation of discovery rules. Jossart said that the judge may sanction BNSF above and beyond the $15 million award at a hearing next month.

She said the depth of the company's misconduct was outlined in Dawson's order. BNSF, it said, failed to offer the 11 rail cars that were involved in the incident up for inspection; failed to preserve video and audio evidence from the scene, and other "discovery abuses" such as "dumping volumes of documents on plaintiff after the discovery deadlines and again the day before expert disclosures." The company also failed to disclose the identity of a "crucial" witness until it paid the witness a confidential settlement.

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

In a statement released late Friday, the railway said the judge's ruling "stripped essentially all of its defenses." It said that a thorough internal review had turned up no wrongdoing on its part.

"When a member of the BNSF team falls ill, we are empathetic," company spokeswoman Amy McBeth said in an e-mail. "In this case there is clear evidence that the Plaintiff's unfortunate illness has nothing to do with the work conditions at BNSF, and that BNSF acted properly."

Jossart, a Minneapolis personal injury attorney, said the verdict sends a message to BNSF. But, she added, nothing will make her client whole again.

"He has to rock himself out of bed in the morning and fold himself against a wall to get out of bed," she said. "He's 53 years old going on 88."

Libor Jany • 612-673-4064