Kowalewski had an immediate and severe physical reaction to the exposure. BNSF led Kowalewski to believe that he had only been exposed to sulfur dioxide, a relatively benign product that would not cause long-term harm. BNSF effectively covered up the fact that he had been exposed to casinghead gasoline. Kowalewski was admitted to the hospital where he was treated for sulfur dioxide exposure.
Following the exposure, Kowalewski was diagnosed with Reactive Airway Disease, Vocal Cord Dysfunction, PTSD, and Parkinsonism. Even worse, Kowalewski soon began to develop neurological symptoms that progressed rapidly. Kowalewski was having difficulty speaking, swallowing, and keeping his balance. It was later found that Kowalewski had in fact suffered a severe degenerative neurological injury as the result of his exposure.
Kowalewski brought suit in 2016 alleging negligence under the Federal Employers’ Liability Act (FELA), and other strict liability federal safety regulations. Kowalewski claimed that BNSF mishandled the tank cars containing casinghead gasoline by coupling them at inappropriate speeds.
During the litigation, BNSF continued to act in bad faith, engaging in what the district court described as “a deliberate effort to frustrate Kowalewski’s ability to bring his claim.” The district court found that BNSF had failed to produce the eleven cars on multiple occasions despite having possession of them, failed to produce any information or documentation related to the chemical release incident, attempted to obscure the source of the chemical release by focusing on cars other than the eleven containing the casinghead gasoline, failed to inspect and preserve evidence at the scene, destroyed or intentionally failed to secure field and yard audio-video evidence, and suppressed the identity of a critical witness.
Worst of all, the court found that as a result of BNSF’s misrepresentation of the exposure “Kowalewski was deprived of an accurate diagnosis and appropriate treatment.”
By this time, more than four years had passed from the day of the incident. Kowalewski, now 53-years-old, could barely walk and it was predicted that he would soon require a wheelchair. Kowalewski presented evidence showing that if his treating physicians knew that he was potentially exposed to casinghead gasoline, they would have provided him with different treatment that may have lessened the effects of his exposure.
The court held that BNSF was guilty as a matter of law on account of their willful and persistent failure to comply with discovery. As a result, the court ordered that the parties proceed to trial only to determine the amount of damages to which Kowalewski was entitled. The Jury awarded more than $15.34 million in damages. Further, the court ordered BNSF to pay an additional $5.84 million as a sanction for misconduct. BNSF appealed the ruling. However, the Minnesota Court of Appeals upheld the jury award and denied BNSF’s request for a new trial.
The behavior of BNSF in this matter was obviously reprehensible. But it does illustrate the depths that railroads will stoop to in defending these claims.
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