(The following story by Max B. Baker appeared on the Fort Worth Star-Telegram website on April 9.)
FORT WORTH, Texas — BNSF Railway wants a Tarrant County judge to seal a document showing that the railroad did not have a companywide program to warn its employees about using toxic chemicals at its railroad tie-treatment plants.
A 1984 internal memo known as Exhibit 356 said the railroad was warning employees about the chemicals at plants in California and Illinois, as required under state law, but not at its other plants, including its facility in Somerville in South Central Texas.
By not educating employees at all of the plants about the risks associated with the chemicals, the railroad placed itself at risk legally, according to a vice president in the railroad’s legal department.
The document — marked “privileged and confidential” — was given to attorneys suing Burlington Northern over the Somerville plant as part of the legal discovery process. The railroad, which says the document was handed over in error, also wants 12 other documents returned that include protected, attorney-client communications.
Jared Woodfill, the attorney for families suing Burlington Northern, said the railroad doesn’t want the documents used in future cases against it because they indicate that the railroad knew for years about unsafe working conditions at its Somerville plant.
During the trial in Fort Worth this year, several employees who worked at the plant for decades testified that they were never informed of the dangers associated with the chemicals, including creosote, which is applied to wood to protect it against pests.
The document “shows that they had knowledge, at the highest levels, that they should have been implementing a program that was never implemented in Somerville,” Woodfill said.
The documents were produced with thousands of others for the lawsuit against BNSF by Donnie and Linda Faust. They contended that Linda Faust’s stomach cancer was caused by exposure to the plant’s chemicals and by creosote that Donnie Faust brought home from work on his clothing.
In February, a Tarrant County jury ruled in BNSF’s favor. The Fausts’ lawsuit was the first case to go to trial, but many others are pending.
Suann Lundsberg, a spokeswoman for the Fort Worth-based railroad, said that Texas law allows for recovery of the documents.
“This motion concerns a very small number of privileged and confidential documents that were inadvertently produced but protected under state law and should not have been disclosed,” Lundsberg said.
Lundsberg said she could not comment on Exhibit 356 because the attorneys in the trial agreed after the verdict to treat the document as privileged. The Star-Telegram acquired the memo during the trial. It is currently a part of the court’s public record.
A hearing on the railroad’s request will be heard in state District Judge Jeff Walker’s court Thursday, along with the plaintiffs’ motion for a new trial.
Memo details
The 1984 memo was written by Gus Svolos, then a vice president for legal affairs for the Atchison, Topeka and the Santa Fe Railroad, the previous owner of the tie-treatment plant. The ATSF merged with Burlington Northern in 1995.
He and Dr. Raja K. Khuri, a former chief medical officer, were discussing the railroad’s “Employee Right to Know Program,” a coordinated effort to inform employees at tie-treatment plants about the toxic chemicals being used. Svolos said the railroad is required to provide chemical safety information to employees.
Svolos said the question then becomes whether the railroad should have a companywide program similar to the ones in California and Illinois.
He tells Dr. Khuri that if the railroad is ever sued in Texas, a jury could find that those employees should have received the same information.
“The jury might conclude that we should have disseminated the information to employees in Texas, even though there was no legal requirement to do so,” Svolos wrote.
Snap back
William Floyd, an attorney for the railroad in the current lawsuits, states in court records that the memo was inadvertently produced in November 2002 along with 10,000 other documents in another case involving the Somerville plant.
BNSF’s attorneys said they did not realize their error until Exhibit 356 was used during Woodfill’s closing arguments during the trial in Fort Worth. Texas law allows BNSF to “snap back” the documents once the error is discovered.
But Woodfill said the document has been used in other cases, including a 2003 lawsuit filed by a former employee that was settled before trial.