A significant part of the plaintiff’s case against the carrier was that the other lines of this rail system used what was known as the "second-look" rule, whereby the conductor in charge would close all the doors but his or her own and then step off the train to check for any passengers. The conductor in this case, however, did not employ that procedure. The second-look rule became protocol on this line just weeks after Ms. Barton’s accident. Based in part on this fact, the plaintiff argued that punitive damages were warranted in the case, along with significant compensatory damages. Barton v. Chicago and North Western Railroad Company and Northeast Illinois Regional Commuter Railroad Corp. (Metra), No. 95L929 (Ill. Cir. Ct. Cook Cty. March 1).

The Barton case offers several issues for examination and application by plaintiffs’ attorneys in cases against carriers and other corporate defendants.

Since their inception in American law, punitive damages have been viewed as a method whereby the interests of society can be furthered through punishment of the wrongdoer. Punitive damages exist primarily to punish the wrongdoer and to discourage that particular defendant, as well as other similarly situated potential defendants, from acting in the same or similar manner. Responsibility for punitive damage claims should be laid at the door of defendants who are flagrantly indifferent to public safety. That was the primary motivation in seeking punitive damages on behalf of Rachel Barton against the railroad.

The various jurisdictions that recognize punitive damages generally require a higher degree of fault to justify them. For example, in Illinois, punitive or exemplary damages may be awarded in cases based on willful and wanton conduct.

The plaintiff’s burden under the Illinois state statute is similar to that under Federal Rule of Civil Procedure 11, which requires a litigant to make a reasonable inquiry to ensure that "the allegations and other factual contentions have evidentiary support or. . .are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed.R.Civ. P. 11(b)(3). Therefore, in the Barton case, the plaintiff needed to demonstrate to the judge that a "fair question" as to the existence of punitive damages was raised. However, the plaintiff had to go beyond her own injuries, despite their severity, to demonstrate the existence of a "culture of indifference" regarding door safety concerns at the railroad.

Through discovery, the plaintiff found that the defendant railroad had received many complaints from passengers who were caught in or struck by closing train doors, some of whom were dragged by the trains and injured. These previous incidents established sufficient notice through the filing of lawsuits, claims reports and complaints against the railroad. Despite all these prior similar occurrences, the upper management of the Chicago and North Western Railroad had done nothing to protect its commuters from such hazards.

The admissibility of evidence such as accident reports, newspaper clippings and memoranda of telephone conversations regarding these prior similar incidents was bitterly fought by the defendants prior to trial. The defendants contended that these allegations were merely conclusory statements supported by inadmissible hearsay. However, the plaintiff succeeded in convincing the court that these facts were admissible because they were either offered to demonstrate notice or they qualified as exceptions to the hearsay rule.

It is well established that out-of-court statements offered for some independent purpose, rather than for the truth of the matter asserted, are not hearsay. Thorton v. University Civil Service Merit Board, 154 Ill. App. 3d 1016, 507 N.E.2d 162 (1^st Dist. 1987). Consequently, a writing that is offered to prove that the recipient had notice of the information contained therein rather than to prove the truth of the matter asserted is admissible. Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 610 N.E.2d 683 (5^th Dist. 1983). Even newspaper clippings may fall within the exception to the hearsay rule when their purpose is to show notice. Deerhake v. DeQuoin State Fair Assoc., Inc., 185 Ill. App. 3d 374, 381, 541 N.E.2d 719, 722 (5^th Dist. 1989). Therefore, the plaintiff’s reliance on accident reports, unsworn statements, newspaper clippings and memoranda of telephone conversations did not constitute hearsay.

The plaintiff argued that even if the writings constituted hearsay, they nonetheless would be admissible under the business records exception to the hearsay rule. Poltrock v. Chicago and North Western Transp. Co., 151 Ill. App. 3d 250, 502 N.E.2d 1200 (1^st Dist. 1986).

In the Barton case, the records were requested in the course of discovery by the plaintiff and were produced pursuant to a court order on a motion to compel, which required the defendants to produce all records concerning persons or persons’ property being caught in Metra or CNW doors for the five years prior to the occurrence. The plaintiff’s expert on train safety had relied on many of these documents in formulating his opinions.

From this, the trial judge found that the plaintiff had demonstrated a "reasonable likelihood" of proving the fact that the defendants knew its method of closing doors was producing injury, yet it failed to act until after the Barton occurrence.

One additional point should be noted at this time: Defendant Chicago and North Western Railroad had merged with the Union Pacific Railroad after the time of the Barton incident, but prior to trial. The defendant contended that the Union Pacific Railroad, Chicago and North Western’s successor in interest, could not be liable for punitive damages. In doing so, however, the defendant sought to ignore the express terms and conditions of the merger agreement under which Union Pacific expressly assumed the liabilities of Chicago and North Western Railroad Co.

The defendant corporation also tried to ignore the overwhelming majority of case law, which held that the surviving corporation in a merger is liable for punitive damages caused by the conduct of the predecessor corporation. See, e.g., Wall v. Owens-Corning Fiberglass Corp., 602 F. Supp. 252, 255 (N.E.Texas 1985). The theory behind holding the surviving corporation liable is that the merger has not exterminated the tortfeasor, but "really directs the blood of the old corporation into the veins of the new." Moe v. Transamerica Title Insurance Co., 21 Cal. App. 3d 289, 304-05, 98 Cal. Rptr. 547, 556-57 (1971).

In addition to the terms of the merger agreement and the case law, the facts in the Barton case supported the liability of the successor corporation. No less than five top management people of the Chicago and North Western Railroad Co. had secured the same or similar top management positions with the successor corporation, and two of the three conductors on the train at issue remained with the successor corporation.

Besides the agreement, case law and the facts, relevant state merger statutes indicate that all liabilities are assumed by the surviving or successor corporations. State merger statutes from Illinois (the place of the accident), Delaware (the state of incorporation of Chicago and North Western) and Utah (the state of incorporation of the Union Pacific) all mandate that the surviving or successor corporation has direct liability for all of the liabilities and acts of the predecessor assumed before the merger. See Del. Code Ann. Tit. 8, § 259(a) (West 1993); 805 ILCS § 5/11.50 (West 1993); § 16-10(a)-1106, Utah Revised Business Corporation Act (West 1993).

The plaintiff proved willful and wanton conduct to justify punitive damages by demonstrating that several top executive officers at the railroad had signed their names to incident reports detailing serious safety concerns regarding doors closing on disembarking passengers. Additionally, the director of claims operations for Union Pacific stated that the distribution list for these incident reports included people from the railroads’ police department, safety department, claims department, governmental affairs department, safety department for commuter operations, and administrative department of suburban operations. These incident reports had vast distributions throughout the ranks at the Chicago and North Western. Moreover, the line on which the accident occurred had a different procedure involving disembarking passengers from those in effect on other lines at the Chicago and North Western. The procedure was changed just weeks after the Barton incident. Deliberate corporate participation in this type of management decision making could be inferred from this lack of uniformity of rules.

Furthermore, many witnesses testified about incidents illustrating the railroad’s indifference or conscious disregard for the safety of commuters, including 14 dragging incidents, prior to Rachel Barton’s mishap, involving lesser injuries. Many of the claims representatives were aware of numerous reports of personal injuries of nonemployees caused by the doors of the Chicago and North Western trains, yet they never informed the proper officials in other departments of the corporation to effect a rules change or at least provide a catalyst for conducting an investigation of the current safety measures and procedures. All of this established the "reasonable likelihood" of plaintiff’s proving that the defendant demonstrated an utter indifference or a conscious disregard for the safety of commuters such as Ms. Barton.

After a four-week trial, the jury returned a verdict for $29.6 million. The bulk of the verdict was for compensatory damages; less than $1 million was for punitive damages. Ms. Barton has pledged to give these punitive damages to a worthy cause, which may include train safety issues. Perhaps the jury awarded a comparatively small amount of punitive damages because the railroads had already changed the safety procedures to the second-look system (and some jurors, as riders of Metra, were likely aware of that), and they thought the purpose of punitive damages was already accomplished with a safer rule in place. Or maybe the savvy jurors of today were attempting to protect the award and see to it that it was not subject to a remittitur if a larger punitive award were assessed, as had occurred in some high-profile cases around the country.

In any event, the defendant railroad in the Barton case still is attempting to get into the mind of the jurors and poll them individually in open court or in chambers through post-trial motions. One juror, for instance, was found to have forgotten about a pending personal injury lawsuit and neglected to mention it in voir dire. Thus far, the court has ruled that this omission did not prejudicially affect the verdict and it certainly does not warrant questioning each individual juror on deliberations that are held sacrosanct.

Nevertheless, the defendants have pledged to appeal the result. They have filed a 73-page brief asking the court to reduce or overturn the awards of $859,500 net punitive damages and close to $29 million in compensatory damages.

The defendants have also requested a new trial, based on the juror’s failure to disclose a pending lawsuit. A hearing was scheduled for June 14; as of press time, no further details were known.