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One Minot derailment lawsuit settled, other cases await hearings
Published: March 20th 2009
Source: Canadian Press
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BISMARCK, N.D. The unofficial spokesman for people affected by a train derailment and chemical spill in North Dakota seven years ago has settled a lawsuit with Canadian Pacific Railway.

Other cases appear headed for trial next year in Minneapolis, barring intervention by the U.S. Supreme Court.

The lingering lawsuits were not part of a class-action case that ended in late 2007 when a federal judge in Bismarck approved a US$7 million settlement involving more than 3,000 victims of the wreck.

That settlement resolved the majority of cases but did not include hundreds of people who had filed individual lawsuits or who opted out of the class-action case to move forward in the courts on their own. Most of those people settled with the railway company earlier.

Tom Lundeen, the lead plaintiff in a group of cases that eventually ended up in the 8th U.S. Circuit of Appeals, said his family settled with Canadian Pacific late last month.

He said the railway made an unexpected offer last December and his family decided that after so many years of battling, "enough was enough."

Lundeen did not give details of the offer but said it was one "we felt satisfied with."

"I guess the railroad wanted to be done with us just as much as we wanted to be done with the railroad," he said.

The Jan. 18, 2002, derailment on the western edge of Minot, N.D., sent a cloud of toxic anhydrous ammonia farm fertilizer over the city. It killed one man who tried to escape the fumes and sent others to hospital with eye and lung problems. The man who died, John Grabinger, lived in the same development as the Lundeen family, near the wreck site.

In March 2006, U.S. District Judge Daniel Hovland ruled in Bismarck that federal law protected CP Rail from claims stemming from the derailment. Congress later changed the law to allow people to bring personal-injury lawsuits against railways in state courts under certain circumstances.

A three-judge 8th U.S. Circuit Court of Appeals panel last July upheld the congressional action in a 2-1 decision, reviving the Lundeen group of lawsuits.

Canadian Pacific, which challenged the constitutionality of the federal law change, has asked for a U.S. Supreme Court hearing. The high court, which gets thousands of requests but hears only several dozen cases each year, will decide this spring whether to take up the matter.

In the meantime, Hennepin County District Judge Tony Leung in Minneapolis - where Canadian Pacific has its U.S. headquarters - has set aside time in January to hear remaining cases against the company.

Canadian Pacific lawyer Tim Thornton said there are about 30 outstanding cases. He declined to say whether the railway will try to settle them by the end of the year.

"We've settled a lot of cases," he said. "If they settle, they settle. If they don't, we'll try them."

A Minnesota state court jury in 2006 awarded four Minot derailment victims a total of nearly $1.9 million, before other claims stalled in the courts.

Should the Supreme Court delve into the matter and overturn the 8th Circuit ruling, the remaining cases would not be tried. Thornton said the railway has settled some outstanding cases in the meantime because "you never know what the courts are going to do."

"If you have the opportunity to make a good deal, you do it," he said.

Lundeen said his family's thinking was similar. With trials not scheduled for almost another year and the possibility of lengthy appeals after that, "who knows how long it would drag out?" he said.

"We didn't feel like we needed to go any further with this," he said. "We felt that we got a fair offer and we took it. I'm glad it's over. It's a big load off our family's shoulders."


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