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Alacrity, a valuable trait for any attorney, was especially important to those involved in railroad litigation in 2002. The winning lawyers whose cases are among this year’s Top 100 said that the timely filing of motions can be more powerful than a locomotive in the fight against what they allege are acts of spoliation on the part of railroad companies. Attorneys contacted by The National Law Journal to assess this year’s railroad cases said a recognition of, and willingness to deal with, the companies’ alleged method of handling evidence relating to large claims gave them the advantage in 2002. Timothy J. Cavanagh of Chicago’s Lloyd & Cavanagh won a $55.8 million verdict in February for four clients who were severely injured when their SUV was struck by an 8 million pound freight train at a crossing in Illinois. Cavanagh has litigated numerous other railroad cases. He said that the first thing he seeks is a protective order to prevent the destruction of evidence. In Velarde v. Illinois Central Railroad Co., No. 01L372, (Cook Co., Ill, Cir. Ct.) his speed paid off. Cavanagh said he filed the motion quickly enough to ensure the preservation of tapes that recorded dialogue between the conductor and dispatcher before the collision. The tapes showed that a dispatcher error was responsible for allowing the train through the crossing, evidence that immediately established liability in the case. REACHING THE JURY Cavanagh added that Illinois’ Rule 501, an adverse interference instruction that allows juries to infer that missing evidence would have been harmful to the defendant’s case, has been helpful in combating pervasive spoliation. However, he stressed that while avoiding spoliation is half the battle in recovery, conveying to the jury the alleged institutionalization of spoliation in the upper echelons of rail companies was key in cultivating large damage awards. Another plaintiff’s attorney, Robert L. Pottroff, of Myers, Pottroff & Ball in Manhattan, Kan., alleged that his Top 100 case, Barber v. Union Pacific, No. CIV-98-312 (St. Francis Co., Ark.. Cir. Ct.) –which drew a $30.1 million verdict — included destroyed voice tapes and missing track records. That fact alone, he said, helped convince the jury that the rail company had something to hide. Finally, Pottroff cited another railroad crossing case he tried in Arkansas that resulted in a $2 million verdict in late 2001. He said that U.S. District Judge William R. Wilson’s order in Stevenson v. Union Pacific, No. 2:1999CV00160 (E.D. Ark.) represented a landmark as the first time a federal judge had chastised a rail company for deliberate spoliation. A third Top 100 railroad case from 2002 was Scarpello v. Consolidated Rail Corp., No. HUD-L-4349-99 (Hudson Co., N.J., Super. Ct.). It resulted in a $53.5 million verdict from a wrongful-death claim. The plaintiffs were represented by Gerald H. Baker of Hoboken, N.J.’s Baker, Garber, Duffy & Pedersen. He could not be reached for comment. Scott H. Tucker, of Little Rock, Ark.’s Friday, Eldredge & Clark, served as defense counsel in Barber. He declined to comment on the issue of alleged spoliation, saying only that he was disappointed in the Barber verdict and will appeal. Michael P. Connelly, a partner at Chicago’s Connelly, Roberts & McGivney and defense counsel in Velarde, could not be reached for comment. Representatives for Union Pacific declined to comment on plaintiffs’ attorneys’ allegations of institutionalized spoliation. Representatives for Illinois Central Railroad Co. could not be reached before press time.

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