(The following article by James Quirk Jr. was posted on the Burlington Hawkeye website on April 1.)
BURLINGTON, Iowa — Attorneys representing both parties in the lawsuit filed by the city of Burlington against BNSF Railway met in a pretrial telephone conference call Friday with U.S. District Court Judge Charles Wolle.
The trial is slated to start April 10 in a courthouse in Davenport. After some uncertainty as to where the trial would be held because of renovations to the Davenport courthouse, it was determined during the hearing that the venue will be available.
Wolle told Scott Power, the city’s attorney, and Michael Thrall, BNSF’s attorney, to have prepared a “precise list of the exhibits you’ll use” at the start of the trial.
It also was determined that the trial, which is expected to last up to a week, will start each day at 8:30 a.m., break at noon, recommence at 1:15 p.m. and finish at 5 p.m.
Wolle’s assistant said the judge has some other hearings slated to start at 8:30 a.m. that week, but Wolle told the attorneys to be ready at the same time because the hearings are sometimes brief.
Wolle also ran down the witness lists submitted by both parties to determine the most likely witnesses.
Although it appeared in a ruling last Tuesday that Wolle denied the railroad’s request to split the trial so the court could receive evidence regarding the damages and court costs BNSF intends to seek from the city in the railroad’s counterclaim, the judge brought the issue up again Friday.
“How much time would you save if that is preserved for post decision?” Wolle asked Thrall.
“I think it could save a half–day of testimony or evidence,” Thrall said. “Part of my reason for proposing to (split the trial) is that the counterclaim damages sought by the railroad consist of the attorneys’ fees and expenses that has incurred in defending the city’s underlying lawsuit that the court will be trying. Those damages … won’t be determined and final until after the trial is concluded. I know that the city has raised arguments as to whether or not they’re the type of damages that are recoverable.”
The city filed the lawsuit two years ago. It alleges BNSF breached an 1858 contract that stipulates the railroad could use the city’s riverfront property as long as it maintains its principal shops in the city.
BNSF has eliminated or transferred about 400 local shops jobs over the past several years. For allegedly breaching the contract, the city wants the court to order BNSF to start paying rent.
The railroad filed a counterclaim against the city that alleges the city breached a 1985 agreement that stipulates the railroad could use the riverfront property indefinitely as long as it’s for railroad purposes. The railroad wants the court to order the city to pay for damages and all of BNSF’s court and legal costs.
Thrall believes it’s better to rule on those issues at the conclusion of the trial, after the court has ruled on the other issues.
“I think that would be a lot quicker,” he said. “It would give the city an orderly way to address and deal with those damage claims if it gets to that point and enable us to not waste a lot of time on privilege issues and presentation.”
Wolle suggested that the matter relating to BNSF’s counterclaim for damages “be at least backed off and not gone into until the completion of the defendant’s case. At that point, a final determination be made as to whether you want to make the record then.”
Wolle said he’s sometimes reluctant to divide cases, but added “Here, there is a threshold showing that it makes sense.”
Wolle asked Power if he has a problem with “simply telling (Thrall) to present that last?”
Power said he plans oppose request. Wolle make a final decision during the trial.