Madison - St. Clair Record

Monday, September 23, 2019

Judge in railroad suit recuses after defense questions impartiality as former railroad plaintiff’s attorney


By Record News | May 21, 2019

EAST ST. LOUIS – U.S. Magistrate Judge Mark Beatty recused himself from a wrongful death suit after defendant BNSF Railway questioned his impartiality. 

BNSF counsel Sean Sullivan of Chicago moved for recusal on May 13, and Beatty recused himself on May 16. 

The suit concerns Timothy Dagon, who died at US Steel’s mill in Granite City after he fell from a train car and a wheel crushed his leg. 


Roy Dripps of Maryville sued BNSF and US Steel in Madison County circuit court in March, on behalf of son Tyler Dagon as estate administrator. 

Later removed to federal court, the suit states that Dagon, although nominally employed by US Steel, was an employee of BNSF for purposes of the Federal Employer’s Liability Act.

US Steel is owner of the locomotive and track; BNSF is owner of the car. 

At the time of the incident, US Steel crews were handling BNSF’s rail cars to further the tasks of BNSF’s enterprise. 

Dripps wrote that in the alternative, defendants were Dagon’s joint employers. 

BNSF and US Steel jointly removed the suit to district court in April, pleading diversity of citizenship.  

Their lawyers wrote that federal and state courts hold concurrent jurisdiction over Federal Employer’s Liability Act claims. 

They also wrote that where a plaintiff chooses to file a valid claim in state court, a defendant is typically precluded from removing it to federal court. 

“That does not mean, however, that a complaint containing the term ‘FELA’ and filed in state court can never be removed,” they wrote. 

Quoting an opinion from a Southern District of Illinois case, they stated, “Neither crafty wording nor frivolous invocation of FELA bars removal.” 

“There is no FELA cause of action against US Steel because it is not a railroad and is not a common carrier…There is no FELA cause of action against BNSF because the decedent was not an employee of BNSF.” 

Sullivan signed the removal notice for BNSF, and Bharat Varadachari of Hepler Broom in Edwardsville signed it for US Steel. 

Sullivan followed up with BNSF’s recusal motion, writing that Beatty’s recent representation of individuals against BNSF would cause a reasonable person to perceive a risk that he wouldn’t be impartial. 

According to Sullivan, prior to appointment in January, Beatty practiced law for former district judge Patrick Murphy, the state’s attorney in Madison County, the firm of Thompson Coburn, and the Schlichter Bogard firm. 

Schlichter Bogard represented plaintiffs in more than 10 lawsuits and claims against BNSF in 2017 and 2018. 

Beatty was one of three lawyers who tried a case and obtained a substantial jury verdict against BNSF in Greene County, Mo., last year. Schlichter Bogard lists the $5 million verdict on its website and lists Mark Beatty as one of the lawyers on it. 

Sullivan wrote that the plaintiff alleged he was injured in a fall from a rail car. 

He wrote that BNSF would provide a complete list of Schlichter Bogard suits and claims if the court requested it. 

“In zealously advocating for his clients in those cases, Magistrate Beatty would have been involved not only with BNSF’s lawyers but with its employees through cross examination of witnesses at trial or at deposition,” Sullivan wrote. 

“BNSF does not suggest that a judge is forever barred from hearing cases involving a party he or she once opposed in private practice.” 

He wrote that the number of cases, the proximity in time, and the similarity of the claims created circumstances warranting recusal. 

Also on May 13, Dripps moved to remand the suit to Madison County. 

He opposed recusal on May 16, writing that BNSF sought review of the appointment process. 

Dripps wrote that controlling law requires denial of a recusal motion based on a judge’s adversarial role in a case before the judge became a judicial officer. 

“There is a general presumption that a court acts according to the law and not personal bias or prejudice,” he wrote. 

He wrote that BNSF pointed to nothing that Beatty wrote or said that would suggest any bias. 

Beatty bowed out on that date, though he found BNSF’s motion moot. 

He found recusal appropriate under a provision in U.S. code requiring it in any proceeding in which impartiality might be questioned. 

The court clerk posted the assignment of Magistrate Judge Gilbert Sison. 

Senior District Judge Phil Gilbert has set trial in June 2020.

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BNSF Railway U.S. District Court for the Southern District of Illinois

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