(The following story by James Quirk Jr. appeared on The Hawk Eye website on February 15.)
BURLINGTON, Iowa — BNSF Railway wants an affidavit from one of the city of Burlington’s witnesses stricken from the record of the ongoing lawsuit between the two entities.
The city, meanwhile, filed a resistance Feb. 3 in the U.S. District Court for the Southern District of Iowa, Davenport, to BNSF’s effort to strike an affidavit from George DeHague who worked 33 years in BNSF’s West Burlington shops.
On Jan. 17, BNSF filed a motion objecting to DeHague’s affidavit because the railroad doesn’t believe the former union employee is competent enough to talk about the “size, work and function” of the former Chicago, Burlington and Quincy Railroad Co. locomotive shops that operated “from the mid–1800s through the present.”
The city sued BNSF nearly two years ago, alleging the railroad breached an 1858 agreement that stipulated the railroad could use the city’s riverfront property as long as it maintained its principal locomotive shops in the city.
During the past several years, BNSF either transferred or eliminated about 400 local shops jobs. The city wants the court to order BNSF to pay rent for using the riverfront property.
When the 1858 agreement was penned, the railroad operating the shops was the Burlington and Missouri River Railroad Co. In 1872, the B&MR was acquired by the CB&Q, which later was absorbed by BNSF.
In its motion to strike De–Hague’s affidavit, the railroad contends it does not meet a Federal Rules of Civil Procedure standard.
“An opposing affidavit submitted by a party in response to a motion for summary judgment must ‘be made on personal knowledge, … set forth such facts as would be admissible in evidence and … show affirmatively that the affiant is competent to testify as to the matters stated herein,’ ” the railroad’s motion states.
In 1973, DeHague left BNSF and joined the international staff of the Machinists Union in Chicago and later in Washington, before retiring, according to Scott Power, the city’s attorney.
“The affidavit quite simply does not contain sufficient facts on which the court can conclude that Mr. DeHague is competent much less have any personal knowledge as to the wide range of topics on which he purports to express opinions,” the BNSF motion states. “For example, he takes issue with the historical overview prepared by Professor Roger Grant, a renowned expert and historian with regard to the CB&Q, without specifically addressing, much less explaining, the basis for that disagreement.”
Grant is a history instructor at Clemson University in South Carolina. He’s considered an expert on transportation history and American railroads.
“DeHague may have sufficient knowledge to discuss work in the Burlington Shops from 1940 through 1973, but there is no basis for concluding that he is competent to provide the comparative analysis in his affidavit as to the relation of the Burlington shops with the other shops performing a multitude of functions on the CB&Q and successor lines over the time periods he purports to address,” the BNSF brief states.
The BNSF motion states that the affidavit purports that De–Hague either “personally visited,” or “negotiated implementing agreements” at BNSF’s locomotive shops, in Burlington and elsewhere over the course of his employment with the union “from 1973 to some unspecified date.”
“(DeHague’s) comparative an–alysis, however, is stated so vaguely and generally that it loses its meaning,” the BNSF brief states. “At best, he falls into some flawed analysis employed by the city, focusing only on heavy locomotive repairs throughout the system while ignoring a multitude of other shop functions contemplated in the 1858 agreement.”
The city, in its resistance to the motion to strike the affidavit, states that DeHague’s affidavit does meet the Federal Rules of Civil Procedure standard that the railroad said it does not.
“DeHague can testify as to his knowledge of the many shops and facilities on the railroad’s system with which he was involved,” the city’s resistance states. “This knowledge is based on his capacity as an employee at the … shops, as a union representative during employment, and later as the railroad coordinator of the International Association of Machinists. In these various capacities he was personally involved with the matters stated in his affidavit and about which he will testify at trial.”
The city brief states that, “in any event, in a case such as this which presents unique historical questions requiring evidence dating back to the mid– to late–1800s, the court in its discretion should consider Mr. DeHague’s testimony, especially given the fact that he is the only witness presented at this stage of the case with any personal knowledge of the facts discussed in his affidavit.”
A trial on the lawsuit, as well as a counterclaim motion filed by BNSF against the city, is set to unfold in April.