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ATTORNEY: David B. Potter FIRM: Oppenheimer Wolff & Donnelly, Minneapolis CASE: Austin v. Montana Rail Link, No. CV 99-39-M-LBE (D. Mont.) When David B. Potter is called to represent a railroad caught up in a disaster — such as a train derailment that has caused a toxic spill — his first move is to encourage his client “to right away act responsibly.” If residents of a town have been evacuated, he says, “the railroad has to take care of the victims, give food, money, housing to the residents with no questions asked. “When dealing with a huge disaster,” he says, “to be credible, you can’t run away from the event.” This initial response establishes the defendant’s credibility long before any potential trial and bolsters the first theme of the defense, he says. Potter began his career in antitrust litigation, but for a few years has specialized in high-stakes disaster defense. He has become one of the nation’s most sought-after mass catastrophe attorneys. His most recent big win was in Montana in 2001. He successfully defended Montana Rail Link in a personal injury trial arising from a 1996 train derailment. In that case, Potter was called in within hours after the train derailed in Alberton, Mont., spilling 130,000 pounds of chlorine. As the chlorine hit the air it produced a yellow fog of chlorine gas that spread over the town and the interstate highway, forcing the three-week evacuation of more than 3,000 people and the closing of Route 90 for 17 days. The day after the accident happened, the first lawsuits were filed. Ultimately, more than 2,000 claims were filed against the railroad. Most were settled but about 80 remained; these plaintiffs contended personal injuries were caused by the derailment and the derailment was caused by Montana Rail Link’s negligence. The claim of Samuel Austin was selected as the test case. Austin, then 21, was a passenger in his cousin’s car on Route 90 when they drove into the chlorine gas cloud. The gas stopped the car by cutting off the oxygen needed for internal combustion. The gas then seeped inside the car and as it came in contact with the mucous membranes of Austin’s body, transformed into hydrochloric acid and burned the membranes. Austin contended that this triggered a return of his asthma, leaving him with permanent respiratory injuries. As the railroad responded to the residents of Alberton, Potter moved quickly, immediately hiring experts in derailments and rail wear to determine why the accident occurred. In any subsequent litigation, Potter says, the National Transportation Safety Board “will become a critical player, so you have to start dealing with the NTSB immediately.” While the NTSB’s decisions may not kill the defendant’s case, “if they rule one way, it will hurt with the jury. The best technique is to bring in the best experts from day one to help with the NTSB.” The experts also help Potter learn what happened, he adds. “I find the best expert and have them teach me.” He hired train derailment expert Gary Wolf of Atlanta and had him on site that week. The defense team also began getting the physical evidence immediately, then using it to determine why the rail broke when and where it did. “We found a piece of the rail where the break started. There was a hidden defect in the web of the rail,” says Potter. Potter swiftly hired Jude Igwemezie, a Toronto engineer who is an expert on rail wear. This expert was aided by a metallurgist Potter hired. The defense began developing a counter to the plaintiffs’ theory of the case: The rail break was a dramatic, unforeseen event caused by a defect and not the result of any wear. In disaster litigation, Potter notes, aggressive motion practice is critical. “You may have 2 to 3,000 claimants, who have filed in lots of courts. You have to orchestrate it right, get good decisions in good courts as soon as you can, so you can use them elsewhere and narrow the battleground.” In this case, his co-counsel, Randy J. Cox of Missoula, Mont.’s Boone, Karlberg and Haddon, knew the Montana judges and who would be most interested in particular issues. One of the claims was that Montana Rail Link had used a defective form of rail at the site; the defense contended that this claim should be dismissed based on preemption. The defense pursued this motion in federal court after determining U.S. Magistrate Leif Erickson was the best judge to get on this issue. Erickson threw out the claims on this rail on preemption grounds. The defense team won a separate motion in state court dismissing the plaintiffs’ punitive damages claims. As the trial opened, Potter sought to narrow the focus. He concentrated only on the reason for the rail break. The plaintiff had begun his case by calling the train conductor, Potter recalls. “It was a very dramatic story. This guy had been very badly injured.” The Rail Link locomotives were still connected to the cars of the train as the cloud of gas engulfed them. The witness had to run back and disconnect the car, and barely made it back to the last locomotive before collapsing. In the cross, says Potter, he ignored the drama of the incident, and concentrated solely on the rail break. This witness had been over this rail hundreds of times without any breaks in the rail. “The night before he went over in the other direction. Under questioning, the witness agreed that he felt nothing wrong.” The direct examination was nearly an hour long; Potter’s cross was 10 minutes. As the defense counsel, says Potter, “I put my case on in theirs.” He keeps each cross-examination short and limited. With each witness, “I want to leave one or two really important points with the jury.” If he limits his questions to finite points, he says, the jury will believe “the other stuff isn’t relevant.” To put the case on during the plaintiff’s presentation, the treatment of the plaintiff’s expert on rail wear was critical. Potter had deposed this witness three times prior to trial. Whenever he deposes experts, he says, “I do extraordinary research on their backgrounds. You get all the transcripts, what they’ve said in other cases, what they’ve published. You look for inconsistencies. I think I understand the case better than they do when I depose them, so I can lock them into a place.” The plaintiff’s rail wear expert, Ron Dunn of Roanoke, Va., had testified that wear in the rail caused the break. But by the end of the cross, says Potter, Dunn agreed that if the break started in the web of the rail, as the defense contended, excessive wear couldn’t have caused it. “I stopped at that point to signal it was important to the case,” Potter adds. The critical witness for the defense would prove to be Igwemezie, the rail wear expert Potter hired during those first few hours after the accident. The defense experts brought in pieces of rail, showed how the metal looks different, depending on how the break occurred. This bolstered the defense contention that the rail break was not caused by wear, but by unusual stress above an unseen internal defect in the rail. During the trial, the key demonstrative was the rail itself, Potter says. “It was laying all over the courtroom. Demonstratives are essential. If you can’t have things the jury can touch and feel, it’s hard to convince a jury.” On April 13, 2001, a Montana jury found the railroad was not negligent. There was no appeal. The other lawsuits never went to trial; they were settled along with the Austin claim. The amount was confidential. TRIAL TIPS � Hire experts immediately after disaster. � Be aggressive in motion practice to limit claims. � Use evidence the jury can touch and feel.

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