Shannon P. Duffy
08-19-2009
Ordinarily, the decision to settle a case while an appeal is pending means giving up the opportunity to set a legal precedent as well as forgoing the chance to win a reversal of any unfavorable published decisions handed down by the lower court.
But a team of defense lawyers fighting to overturn a $24 million verdict have figured out a way to have their settlement cake and eat their jurisprudence, too.
The confidential settlement in Klein v. Amtrak -- a case in which two trespassing teenagers climbed atop a parked train car and suffered serious burns when they got too close to a 12,000-volt catenary wire -- included an unusual provision that called for the trial judge to vacate all of his published opinions and have them removed from Lexis and Westlaw.
And it worked.
A few months after holding an hourlong oral argument, the 3rd U.S. Circuit Court of Appeals agreed in late July to remand the case to the trial judge, U.S. District Judge Lawrence F. Stengel, who, in turn, agreed to vacate eight of his published opinions and to "direct" Lexis and Westlaw to remove them from their databases.
Gretchen DeSutter, a spokeswoman for Westlaw, said Stengel's request to remove the opinions would "absolutely" be honored, and that any instance in which a judge vacates a published opinion automatically leads to its withdrawal from Westlaw's database.
Calls to Lexis were not returned by press time.
Exactly how the lawyers went about persuading Stengel to take such an unusual step is impossible to say because all of the court papers are under seal and none of the lawyers will talk about it.
Plaintiffs attorney Joseph F. Roda of Roda & Nast in Lancaster, Pa., said, "All I can tell you, I think, is that the case has settled."
Robert C. Clothier of Fox Rothschild, who has handled access cases for The Legal Intelligencer, said he was troubled by the court's decision to allow the defense lawyers to file all of their motions under seal, including the motion that asked for permission to seal the other papers.
To justify sealing any document, Clothier said, the courts have consistently held that it is necessary to "articulate on the record" the extraordinary circumstances that justify secrecy. As a result, he said, the motion to seal itself cannot be under seal.
The audiotape of the 3rd Circuit oral argument reveals that the three-judge panel had tough questions for both sides and that no clear winner emerged.
In five years of litigation, Klein v. Amtrak spawned a series of legally significant decisions -- all now withdrawn -- on issues such as how to apply the "attractive nuisance" doctrine in a case where the injured plaintiff was nearly 18 years old, and the standard of proof required to show that a landowner was aware of a risk because of similar prior accidents.
In April 2008, Stengel issued a 60-page opinion that upheld the jury's verdict, rejecting a slew of arguments that challenged his pretrial rulings, his jury instructions and the size of both the compensatory and punitive damage awards.
Stengel found that the jury's conclusions were supported by clear evidence that "Amtrak had every reason to know trespassers were regularly on its tracks and that teenage boys were inclined to climb to the top of parked boxcars."
In the October 2006 trial, Roda told the jury that catenary wires pose a grave danger because they can inflict a lethal shock even if the victim doesn't come in direct contact with them because of the phenomenon of "arcing" in which the electricity "jumps" from the source to any grounded object.
Roda said at the trial the two defendants -- Amtrak, which owned the property, and Norfolk Southern Corp., which owned the parked boxcar -- were aware of the dangers, and also knew that parked boxcars with ladders on the side that make it possible to climb atop them are attractive to teenage boys.
Amtrak was also aware that trespassers were common in its rail yard, Roda said at the trial, because of pervasive graffiti. But despite regularly training their own employees about the risks of electrocution, Roda said, the defendants did nothing to prevent injuries to trespassers.
Since the boxcars were parked for four days, Roda said, Amtrak could have turned off the power to the catenary lines or at least posted warning signs that labeled the boxcars as a high-voltage area.
The 11-day trial was bifurcated, and the jury found in its first verdict that Amtrak was both negligent and "wanton" and that Norfolk Southern was negligent. It also found that Amtrak was 70 percent responsible; that Norfolk Southern was 30 percent responsible; and that the two plaintiffs were zero percent responsible.
Following a brief trial on the issue of damages, the jury awarded a total of $24,227,435 to plaintiffs Jeffrey Klein and Brett Birdwell.
Klein, who suffered burns over 75 percent of his body and was hospitalized for nearly 11 weeks, was awarded more than $11 million in compensatory damages. Birdwell, who was burned over 18 percent of his body, was awarded more than $588,000.
The jury also awarded $12.5 million in punitive damages -- $8.75 million against Amtrak and $3.75 million against Norfolk Southern Railroad -- to be split equally by the two plaintiffs.
TOUGH QUESTIONS AT ARGUMENT
In the 3rd Circuit oral argument, Amtrak's lawyer, William G. Ballaine of Landman Corsi Ballaine & Fordin New York, argued that Stengel misunderstood some of the basic tenets of Pennsylvania law with respect to the duty that landowners owe to trespassers.
Ballaine said landowners "don't have to anticipate trespassers."
But U.S. Circuit Judge Michael A. Chagares interrupted and reminded Ballaine of the evidence of graffiti that put Amtrak on notice of the trespassers, and said the jury had decided the issues against the railroads.
Ballaine insisted that if Stengel had gotten the law right, Amtrak would have prevailed on summary judgment. "So it shouldn't make a difference that the jury came out the way it did if, as a matter of law, the evidence wasn't there," Ballaine said.
U.S. Circuit Judge Julio M. Fuentes also seemed at first to be rejecting Ballaine's arguments, saying: "You owe a certain duty to trespassers," and reminding Ballaine that the evidence included other similar accidents.
But Ballaine insisted that the evidence of previous accidents didn't satisfy Pennsylvania's rigorous test, which requires proof that similar accidents occurred in the same place and in the same time frame. Stengel erred, he said, by allowing the jury to hear of accidents that occurred decades ago and in other states.
Fuentes seemed less than impressed, saying Ballaine seemed to be arguing that "substantially similar" accidents needed to be "precisely identical."
Norfolk Southern's lawyer, Nancy Winkelman of Schnader Harrison Segal & Lewis, argued that Stengel should have allowed her client out of the case before trial because, unlike the landowning Amtrak, it had no knowledge of the trespassers.
Winkelman said the "perverse result" of the case was that Norfolk Southern was held liable under a negligence standard for allegedly being a co-creator of a dangerous condition, while Amtrak was liable only if the plaintiffs could prove wanton conduct.
But the judges also had tough questions for plaintiffs attorney Roda.
Fuentes pressed Roda on whether he had "any caselaw support" for his argument that the jury was properly told of other accidents that occurred long ago or far away from Pennsylvania.
Roda insisted that the evidence was used only to show Amtrak's "state of mind" and that the theme of the evidence was always the same -- teenagers trespassing and climbing on train cars and getting injured from catenary wires.
Fuentes asked: "Isn't the problem that trespassers are not necessarily foreseeable, and that's why you have the elevated standard when trespassers are involved?"
Roda agreed, but insisted that he had satisfied the test by showing that Amtrak did nothing to eliminate a known and lethal risk even though doing so would have been as simple as flicking a switch.
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