BENTON – On 19 days notice Tyler Dagon surrendered a wrongful death trial he litigated three years to secure at U.S. district court.
He represents the estate of Timothy Dagon who died in 2017 after a BNSF railcar crushed a leg in the yard at US Steel in Granite City.
Senior District Judge Phil Gilbert had set trial to start Oct. 3.
On Sept. 14, Dagon’s counsel Michael Blotevogel of Maryville moved to dismiss the complaint without prejudice.
He stated Dagon and counsel didn’t wish to devote time and resources to try what was left of Dagon’s claims.
“If the motion is granted, the undersigned law firm will not represent plaintiff in any refiled suit against BNSF," Blotevogel wrote.
He stated he requested dismissing without prejudice out of abundance of caution, “to avoid any accusation of legal malpractice for dismissing the claim at this time.”
Tyler Dagon sued BNSF in 2019, claiming it should have trained Timothy Dagon against getting on and off moving equipment.
He also claimed a slippery sill caused his father to slip and fall.
He also sued US Steel as his father’s employer.
Gilbert dismissed US Steel in 2020, and BNSF hauled US Steel back into court with a third party complaint for contribution.
This August BNSF moved to bar from trial “speculation concerning the cause of the underlying accident or that the subject railcar or any act or omission of BNSF caused or contributed to cause the accident.”
BNSF counsel Sean Sullivan of Chicago claimed no witness saw Dagon attempt to board the railcar or fall.
He claimed US Steel engineer Kevin Wylde testified he heard a garbled radio transmission from Dagon.
Sullivan claimed Wylde stopped the train, ran to yardmaster Ronald Lyerla, and returned to Dagon to try first aid.
“Decedent never gave Wylde any indication of how he fell or what caused him to fall," Sullivan wrote.
He claimed Wylde told police that Dagon said, “I can’t believe I fell off again.”
He claimed paramedic Ryan Roberts testified that Dagon said he went to grab the handle and, “I slipped and fell backwards and then I got hit.”
Sullivan claimed Dagon’s expert Robert Andres didn’t know whether the sill step or the ladder configuration had anything to do with the fall.
He claimed Andres said if Dagon did slip from the step there were several things that could have contributed to that.
He claimed Andres couldn’t say whether training by BNSF would have prevented the accident and that Andres didn’t assert that BNSF did anything wrong or violated any statute, regulation, or industry practice.
“Andres was critical of US Steel but not of BNSF,” he wrote.
On Sept. 1, Gilbert granted summary judgment against claims that BNSF owed Dagon duties to train and warn him.
He found Dagon’s theory that BNSF created foreseeable risk far too attenuated.
“It is not reasonable for BNSF to go into a US Steel facility and premises and supervise and train US Steel employees," Gilbert wrote.
He denied summary judgment only on a claim that BNSF owed Dagon a duty to include slip resistant material or put a warning on the railcar.
Blotevogel’s motion to dismiss showed that from plaintiff’s angle the single claim looked worse than total defeat.
He stated Dagon would prefer to dispose of all claims so he and counsel might consider whether to appeal Gilbert’s decision to dismiss US Steel.
“If the motion is granted, plaintiff’s counsel will not appeal any rulings by this court dismissing claims or portions of claims plaintiff had raised against BNSF,” he wrote.
He stated if Gilbert denied the motion Dagon would appeal his rulings as to BNSF.
He stated Dagon might ask to vacate the trial date and enter final judgment.
He stated BNSF opposed the motion and US Steel had no objection.
He quickly filed a supplement stating US Steel changed its position.
Sullivan objected for BNSF on the same date stating Gilbert had discretion to dismiss with prejudice in such circumstances.
He stated rulings on pending motions might dispose of the final claim and terminate the case on the merits.
He stated Gilbert should vacate the trial date if he needed further submissions and time to determine the motions.
US Steel counsel Bharat Varadachari of Hepler Broom in Edwardsville opposed Dagon’s motion on Sept. 16.
“To grant plaintiff’s motion to dismiss without prejudice before the court rules on the pending motions would be against the interests of justice, all parties and judicial economy,” he wrote.