Attorneys urge jurors to set aside emotions in $3 M railroad wrongful death trial

David Yates Oct. 25, 2007, 7:11am

Jason Itkin

Defense attorneys continued to stress the law during the ongoing trial of Derrick Cezar et al vs. Union Pacific Railroad, reminding jurors to bottle up any feelings of sympathy they may garner for Cezar and his 7-year-old girl, who broke her neck and lost her mother in a train collision.

The trial began Tuesday, Oct. 23 in Judge Gary Sanderson's 60th District Court and is expected to continue through the month of October.

Jurors will have to decide whether Patsy Ardoin negligently failed to stay stopped at a railroad crossing or if it was Union Pacific's inadequate safety precautions that caused Ardoin's vehicle to be struck by a train.

Derrick Cezar originally filed suit against Union Pacific in February 2006, after his fiance Ardoin was killed when her vehicle was hit by a BNSF train. Cezar's 4-year-old daughter was also a passenger in the vehicle. The girl was thrown from the car on impact and suffered a broken neck.

According to lawsuit documents and opening remarks by the defense and plaintiffs, the incident occurred in Vinton, La., at a "passive" railroad crossing on July 22, 2005.

A passive railroad crossing does not have electric gates, signals or sirens to notify motorists of approaching trains. Most passive crossings only have stop signs and railroad signs.

Although the incident occurred in Louisiana, the court allowed the Texas venue because a substantial part of the events and occurrences that are the basis of the suit took place and originated in Jefferson County. Union Pacific had requested the case be transferred to federal court, but the request was denied.

During opening arguments, defense attorney Douglas Poole said like the Vinton crossing in question, half of the nation's railroad crossings are currently passive.

The plaintiffs argue that had the crossing been equipped with gates and lights, Ardoin would still be alive today and Cezar's daughter would not be confined to a wheelchair for the rest of her life.

Plaintiffs are seeking at least $3 million in damages just to cover the girl's medical expenses.

"Corporations have a right to make a profit, but with that right comes a responsibility to (ensure public safety), said plaintiffs' lawyer Jason Itkin. "Street signs don't tell you if a train is coming."

On the other hand, Poole argued that equipping the crossing with electric gates was the responsibility of the city of Vinton and the Louisiana Department of Transportation, and even if Union Pacific desired to upgrade the crossing, the company lacked the authority to make it happen.

Poole also argued that the train sounded its horn before approaching the crossing and had the legal right-of-way, and that Cezar's fiance was negligent for failing to stay stopped until the train passed.

"(Ardoin) had a duty to stop at the stop sign," Poole said. "She had no legal excuse for not seeing the train…or hearing the train whistle. That is a sad fact."

Testimony from eyewitnesses showed that other drivers stopped at the crossing heard the train whistle.

"(Ardoin) had stopped at the crossing for several seconds, and then for reasons we will never know, she pulled out in front of the train… (in) broad daylight," Poole said, adding that jurors must not allow sympathy to sway their judgment and should stay within the scope of law and reason.

Testimony and evidence showed that several fatal accidents had occurred at the Vinton crossing over the last decade, and that Vinton's mayor offered Union Pacific $200,000 to install lights and gates.

Itkin said Union Pacific has a policy of upgrading all passive crossings and the very federal and state laws the company was hiding behind also permitted the company to act on its own accord if it deems a crossing to be a "dangerous trap" or a crossing where many accidents occur.

A dangerous trap is a railroad crossing that is federally mandated to be equipped with electric gates and signals because the crossing's visibility is poor.

Testimony and evidence showed that the Louisiana DOT was in the process of closing one of Vinton's crossings at the time of the incident, and Union Pacific's "hands were tied" until a decision was made.

During emotional testimony on Oct. 25, an expert in the field of psychology testified that Jazmine Cezar displays signs of post-traumatic syndrome, but also possesses strong coping skills.

After the collision, Jazmine, 4 years old at the time, spent almost six months in various hospitals and will be confined to a wheelchair the rest of her life.

The psychologist said the girl deeply loves and misses her mother and will still have nightmares about the accident from time to time, but showed signs of acceptance of her condition.

Before Cezar's suit was filed in Jefferson County, Union Pacific filed suit first in a Louisiana court against Ardoin and Cezar for causing the collision and disrupting business, Itkin said.

Poole is an attorney for the McLeod Alexander Powel & Apffel law firm.

Itkin is a partner in the Arnold Itkin law firm.

Case No. B176-429

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