August 06, 2019 Top Story

Next Stop, Sanctionville!

Court punishes defendant for discovery dispute that goes off the rails

By Stephen Carr

Finding a pattern of “pervasive” discovery misconduct, a state appeals court has upheld a sanctions order that resulted in imposed liability and an award of over a million dollars in attorney fees, before a jury entered a verdict of more than $15 million. In affirming the award, the court noted that the defendant railway’s misrepresentations deprived the plaintiff not just of a fair chance to prove his case, but potentially also a chance for necessary medical treatment following an industrial accident.

Tank Car Spill and Possible Coverup

In Kowalewski v. BNSF Railway Co., a plaintiff working at a railyard was exposed to a foul-smelling gas and taken to the hospital where he was diagnosed with reactive airway disease and other conditions. The plaintiff alleged that these conditions resulted from being exposed to a chemical released by one of the railway’s tank cars. When the plaintiff sought medical treatment, the trial court found that the railway “misled Kowalewski by representing that he was exposed to sulfur dioxide,” depriving him of a proper diagnosis of his condition.

The tank cars involved in the accident were not flagged and held aside by the railway as the likely source of the gas. Instead, they were added to other trains and allowed to leave the yard.

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