Appeals court hears oral arguments from UP to reverse $8.2M verdict

Steve Korris Apr. 2, 2009, 11:33am

Jefferson County Chief District Judge Gary Sanderson conducted a trial he should have transferred and upheld a jury verdict he should have overturned, Union Pacific Railroad argued before the Ninth District appeals court in Beaumont on April 2.

Alice Loughran of Washington, D. C., asked Ninth District judges to reverse an $8.2 million verdict against Union Pacific and order a new trial in Harris County.

In 2007, ten Jefferson County jurors found Union Pacific 65 percent responsible for an accident that killed Patsy Ardoin and broke the neck of her daughter Jasmine.

Jurors assigned 20 percent of the blame to the Louisiana Department of Transportation and 15 percent to Ardoin.

The accident happened at Vinton, La., in 2005.

Ardoin drove a Dodge Ram truck to a Union Pacific crossing and stopped on the tracks. A Burlington Northern Santa Fe freight train struck the truck at 45 miles per hour.

In 2006 Jasmine's father, Derrick Cezar, sued Burlington Northern Santa Fe, three crew members and Union Pacific.
Cezar sought damages for Jasmine and Ardoin's three other children.

His lawyers, Jason Itkin and Kurt Arnold, claimed the crew should have avoided the accident and Union Pacific should have installed flashing lights and bells at the crossing.

Itkin and Arnold argued that the case belonged in Jefferson County because the train started its run in Beaumont.

Later they added Union Pacific claims investigator Jack Mann as a defendant.

Prior to trial they dismissed Burlington Northern Santa Fe and all individuals but Mann.

They argued the case should stay in Jefferson County because Mann lived in Beaumont.

Union Pacific moved for a directed verdict releasing Mann from the suit, and Sanderson granted it.

According to the railroad, that should have ended Jefferson County jurisdiction.

Sanderson disagreed and took the case to trial, applying Louisiana law.

Union Pacific lawyer Douglas Poole of Galveston argued to jurors that a railroad can't install lights and bells without approval from transportation officials.

Poole argued that federal law preempted Cezar's claims because Union Pacific spent federal funds on the crossing.

Poole presented an affidavit of a Union Pacific employee swearing the railroad spent federal funds, but Sanderson would not allow it as evidence.

At the close of trial, Sanderson asked jurors to decide if the crossing constituted a dangerous trap or a local hazard.

Jurors agreed it wasn't a dangerous trap but it was a local hazard.

They awarded more than $6 million for Jasmine's past and future damages, almost $1 million for the other children, and more than $1 million in interest.

Union Pacific moved for judgment notwithstanding the verdict and for a new trial.

Sanderson denied both motions, and Union Pacific appealed.

At oral arguments Loughran said transportation officials don't approve funds for a rail crossing without approving the level of warning.

She said the employee affidavit was critical but Sanderson took it out of evidence.

Loughran said plaintiffs could have put the employee on the stand but they chose not to.

On venue, she said, "It was a very thin thread that the trial court cut."

She said Mann's responsibilities didn't include safety at the crossing.

For Cezar, Russell Post of Houston said Union Pacific needed to prove it spent federal funds on the crossing and not on an overall project that included another crossing.

He said that after the accident, a Union Pacific official stated in e-mail that federal funds may have been spent.

He said the employee affidavit was inadequate to carry the railroad's burden.

"It was plainly hearsay," Post said.

He said it was conclusory and plaintiffs had no way to controvert it, and that Union Pacific didn't want to put the employee on the stand.

"The dangerous trap is an ancient doctrine," he said.

post said a Louisiana Supreme Court decision introduced other factors. On venue, he said Union Pacific never denied that Mann lived in Beaumont.

He said the railroad suggested that the claim against Mann was a sham. He said, "We vigorously resisted a directed verdict on Mann."

Loughran said e-mail showed the railroad wasn't sure about federal funds.

"A statement that they don't know proves nothing," she said.

"Once they looked into it, it was confirmed that it was federal funds," she said.

She said the Louisiana Supreme Court departed from the dangerous trap doctrine in 2000 and no court has supported the decision since then.

Justice Hollis Horton said a dangerous trap and a local hazard are almost the same, but the jury said no to one and yes to the other.

Horton asked if anyone asked the jury to resolve the conflict.
Loughran said, "We asked the trial court to resolve it."

She asked for a new trial in Harris County, where Union Pacific keeps headquarters.

Horton, Chief Justice Steve McKeithen and Justice Charles Kreger will decide the appeal.

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