Trial Magazine

Scott Kowalewski, an engineer for BNSF Railway, was working in a railyard where tanker cars filled with casinghead gasoline—a very toxic and volatile product from oil fracking fields—were being coupled together. The cars vented poisonous gas where Kowalewski was working, exposing him to the dangerous fumes. He developed neurological symptoms, which progressed rapidly. Now 53, he can barely walk and will soon require a wheelchair. He also has difficulty speaking, swallowing, and keeping his balance. His medical expenses were $50,000. Kowalewski had earned approximately $75,000 annually.

He sued BNSF Railway, alleging it mishandled the casinghead gasoline by attempting to couple the tanker cars at a speed too high for the product involved. The plaintiff also claimed that the railroad failed to tell him that he had been exposed to casinghead gasoline, instead telling him that he had been exposed to something that was relatively benign and would not cause long-term harm.

The court found BNSF liable as a matter of law for destroying evidence in the case. The parties proceeded to trial on damages only.

The jury awarded more than $15.34 million. The court then ordered the defendant to pay an additional $5.84 million as a sanction for its misconduct.

Citation: Kowalewski v. BNSF Ry., No. 27-CV-17-145 (Minn. Dist. Ct. Hennepin Cnty. July 2018).

Plaintiff counsel: AAJ member Joseph Sayler, Anoka, Minn.; and Paula Jossart, Burnsville, Minn.