Ann Maher Jul. 14, 2014, 4:08pm

Union Pacific Railroad is seeking summary judgment on a claim for punitive damages involving a fatal accident at a private crossing in Iron County, Mo. in 2007.

The case has already been tried once, resulting in a $1.25 million plaintiff’s verdict in MadisonCounty in 2010. But the Fifth District Appellate Court in 2012 reversed Circuit Judge Andreas Matoesian, saying he erred by allowing the plaintiff to rely on certain industry safety standards, but prohibited Union Pacific from showing that those standards apply to public crossings, not private crossings. The case was remanded for a new trial and the litigation ensues.

The driver who survived the collision, Guy Webb of Highland, had been an original defendant in the 2008 case. In 2009, he joined as counter plaintiff with lead plaintiff Misty Webb, whose father James Webb, Jr., as passenger, perished in the incident.

Guy Webb, represented by Jon Carlson of Edwardsville, amended his negligence claim last year adding a new claim for willful and wanton conduct and punitive damages against Union Pacific.

“Despite being fully aware of the importance of providing early visual and auditory warnings to motorists and train operators of the crossing, Union Pacific removed any possibility that either of these necessary warnings would be available at the subject intersection,” wrote Carlson in a July 11 memorandum in opposition to Union Pacific’s motion for summary judgment on the punitive damages claim.

“Union Pacific had a duty to correct these problems: namely, clearing the vegetation in the area, designing a crossing with good sight distance, and blowing the train whistle 15-20 seconds before reaching the crossing….It is undeniable that Union Pacific’s conduct rises to the level of complete indifference to and conscious disregard for the safety of others.”

Union Pacific, represented by Thomas E. Jones, Harlan A. Harla and Misty Edwards of Belleville, argue that Guy Webb cannot prove by clear and convincing evidence that it acted with evil motive or reckless indifference.

“Punitive damages require a showing of a culpable mental state on the part of the defendant, either by a wanton, willful or outrageous act or reckless disregard (from which evil motive is inferred) for an act’s consequences,” the lawyers wrote June 16. “Simply put, Plaintiff’s claims here fail to allege any acts that meet this strict definition.”

Union Pacific also seeks to bifurcate, or separate, the issues of compensatory and punitive damages.

“Bifurcation will promote efficiency while reducing confusion and protecting defendant against the possibility of substantial prejudice,” Union Pacific lawyers wrote in its bifurcation memorandum filed July 11. “In short, there is every reason to bifurcate the compensatory and punitive damages in this case and no good reason not to do so….the Court should order that the Plaintiff’s punitive damages claim, if allowed to proceed at all, be tried in a second phase separately from the issue of an appropriate amount of compensatory damages.”

In other motions filed July 11, Union Pacific seeks to bar the testimony of plaintiffs’ experts Kenneth Heathington, who had testified at the earlier trial, and Charles L. Culver.

The railroad argues that the appellate court had already “made clear” that it was improper to allow Heathington to testify that the railroad was bound by the standards of various federal agencies because they do not apply to private crossings.

“As such, any testimony by Dr. Heathington that the railroad is bound by these standards and regulations and/or that the railroad violated these standards and regulations should be barred,” Union Pacific lawyers wrote.

On Culver, the lawyers wrote that his experience lies as a locomotive engineer.

“He has not performed an accident reconstruction in this matter,” they wrote. “He has not performed any scientific calculations. His opinions are not based upon any special knowledge or application of the principles of physics, engineering or other sciences. Rather, he baldly asserts without any foundation that the accident likely would not have occurred if the train crew would have blown the whistle earlier, and their failure to do so was a contributing cause to the accident. Culver’s opinions amount to nothing more than pure speculation.”

Madison County case number 08-L-1139.

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Union Pacific
1400 Douglas St
Omaha, NE 68179

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