BNSF Challenges Lawsuit From Engineer Who Ran For His Life From Exploding Oil "Bomb Train"

Cross-Posted from DeSmogBlog

Burlington Northern Santa Fe (BNSF) has responded defensively to the oil-by-rail lawsuit filed by former BNSF locomotive engineer Bryan Thompson, a case recently reported on by DeSmogBlog.

BNSF — the top rail carrier of oil obtained via hydraulic fracturing ("fracking") in North Dakota's Bakken Shale basin — denied all charges. The company also argued that some federal laws protect the company from liability for injuries allegedly suffered by Thompson. 

The Answer to the Complaint signals the likelihood of a protracted legal battle ahead. Lee A. Miller, a Minneapolis, Minnesota-based attorney representing BNSF against Thompson, filed the company's response in Cass County, North Dakota. 

Miller argued that the damages allegedly suffered by Thompson — which include Post-Traumatic Stress Disorder (PTSD) from living through and running away from the December 2013 Casselton, North Dakota oil train explosion — were "caused or contributed to by Plaintiff's own contributory or sole fault."

He also argued that the explosion occurred due to "unknown causes for which BNSF is not responsible" and "are the result of acts or omissions of persons, entities, or corporations other than BNSF...over whom" they have "no control or right to control at the time of the alleged incident."

Image Credit: State of North Dakota District Court; East Central Judicial District

"Preclusion"

Perhaps the most interesting argument — or troubling, depending on your perspective — made by BNSF is that other federal laws preclude the company from liability under the Federal Employers' Liability Act (FELA), including the Federal Rail Safety Act. The legal challenge under FELA is the first of its kind for oil-by-rail.

Image Credit: State of North Dakota District Court; East Central Judicial District

"This little sleeper is the biggest danger to the public in the event of a derailment and explosion in a town which kills or injures town folk," Thomas Flaskamp, the attorney representing Thompson in this case, told DeSmogBlog.

"Essentially, the argument under 'preclusion' is that a federal law such as the FELA which governs Thompson's recovery is precluded by the railroads' compliance with another federal law. Similarly, a claim brought under state tort laws for injury and death of state residents could be 'precluded' by federal laws which cover the same subject matter."

If that defense by BNSF ends up as the game-winning clincher, it would speak volumes about how laws and policies are structured in the U.S. to favor the powerful rail industry over its workers and everyday people.

Miller did not respond to a request for comment sent via email by DeSmogBlog. Amy McBeth, director of public affairs for BNSF, said "You will find our comments in our court filings."