(The following article by Ken Crites was posted on the Minot Daily News website on March 8.)
MINOT, N.D. — Fargo attorney Mike Miller expressed outrage over U.S. District Judge Daniel Hovland’s ruling in Bismarck Monday that dismissed a large class-action lawsuit brought against Canadian Pacific Railway.
The suit filed against CP Rail was over the Jan. 18, 2002, derailment and anhydrous ammonia spill on the west edge of Minot. One man was killed and thousands of people were said to be injured by the accident.
“I’m absolutely outraged,” Miller said from his office in Fargo. “I’m almost speechless. It’s almost impossible to believe. It’s absolutely, totally unfair.”
Miller is the lead attorney for the Solberg Law firm that brought the suit. He said it has about 1,000 members in the class.
“It’s just the thought that CP Rail could have the accident and walk away from it without paying compensation to those injured people,” Miller said. “It’s inherently unfair.”
In his ruling Monday, Hovland said he based his decision on the Federal Railroad Safety Act of 1970 that makes the railroad immune from such legal action.
Minot attorney Mark Larson called Hovland’s dismissal decision “tort oppression.”
“Everybody said they wanted tort reform and this is what happens,” Larson said.
Larson said the Minnesota cases remain alive. “We’re going to continue filing in Minnesota,” he said.
“The thing that’s fascinating to me is the railroad’s audacity in pursuing an argument like that,” Larson said. “I wish them well and hope they can sleep at night.”
Last month, in the first cases to go to trial in Minneapolis, the railroad’s U.S. headquarters, a jury ruled that CP Rail must pay four people a total of nearly $1.86 million for injuries they suffered as a result of the Minot derailment.
The railroad appealed that decision and sought the dismissal of the class-action lawsuit in federal court in Bismarck, citing an 8th U.S. Circuit Court of Appeals ruling in a case involving a 2002 Burlington Northern Santa Fe Railway chemical spill in Scottsbluff, Neb.
In that case, appeals judges ruled that the violation of a federal regulation or law “is generally not recognized as negligence” under Nebraska law.
Hovland also cited a ruling in a Perham, Minn., derailment case that threw out a claim against BNSF last February.
Hovland said he recognized that the federal legislation “closes every available door and remedy for injured parties.
“As a result, the judicial system is left with a law that is inherently unfair to innocent bystanders and property owners who may be injured by the negligent actions of railroad companies,” he wrote.
“Other federal district courts throughout the country have struggled with the harshness of decisions such as this,” Hovland said. “However, it is the province of Congress, not the judicial branch, to address this inequity.”
The statements by the judge were not lost on Miller.
“Looking at the ruling, Judge Hovland felt his hands were tied in this matter that he said it was inherently unfair and he felt he had no choice in the matter,” Miller said. “He even suggests that the cases go forward somewhere else.”
An attorney for the railroad said Monday that it’s possible the remaining cases pending in Minneapolis could also be referred to the 8th Circuit Court of Appeals and ultimately be dismissed.
Pat Pender, president of CP Rail, based in Calgary, Alberta, could not be reached Monday for comment on Hovland’s decision.
Miller said he expects the next batch of cases scheduled for Hennepin County Court in Minneapolis to proceed. Miller has six cases of the 12 scheduled for trial starting on May 1.
Miller said CP Rail has appealed to the Minnesota appellant court to have those cases thrown out as well. But, he said, the state court is not required to rule the same way.
“The war is a long way from being over. I feel sorry for the Minot people in the cases.
They have waited so long,” Miller said. “There is one silver lining, if you can call it that. We filed a class-action suit in the Minnesota court at the same time we filed the class-action suit in federal court in Bismarck. The Minnesota court held our lawsuit in abeyance pending the outcome of the federal decision so it’s still viable and we’re not totally out of the water.
“Judge Hovland’s ruling does not affect the state court, so we will go back to Minnesota and will keep the individual and class-action suits going. As I said before this could be a long war, and the war is not over,” Miller added.