Hayes+Associates Analysis Contributes to $15.3 Million Jury Verdict in Case of Railroad Switchman Injured by Leaked Fumes from Fracking Wastewater

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Hayes+Associates, Inc. Associate, Erik D. Power, MS, PE, authored two reports in a case involving a railway switchman severely injured when the over-speed coupling of railroad tank cars caused the leakage of hazardous fumes from fracking wastewater.  Power’s reports helped in securing $15.3 million in damages as well as heavy sanctions against the defendant railroad, Burlington Northern Santa Fe (BNSF).

 In January 2014, Scott Kowalewski, age 53, was working as a switchman for BNSF in the Northtown Freight Yard in Minneapolis when, less than 40 feet away, 11 cars carrying the liquid/gaseous refuse from Occidental Energy’s fracking fields in Levelland, TX, were being coupled at speeds in excess of what is accepted to be safe.  Kowalewski smelled a rotten egg odor, felt a burning in his chest, and later collapsed in a break room and was taken to a hospital.

 BNSF immediately dismissed the incident as minor, reporting that Kowalewski had been exposed to sulphur dioxide from a leaking tank—but it was later proved that the tank containing sulphur dioxide was not present at the site until later in the day. However, given the BNSF report, doctors treated Kowalewski for inhalation of that gas.

 The 11 cars being coupled near Kowalewski were carrying "casing head gasoline," a known inhalation hazard comprised of various hydrocarbons including benzene, hydrogen sulfide, and toluene.

 As a result of exposure to the toxins, and the initially misdirected treatment caused by the BNSF report of a sulphur dioxide leak, Kowalewski sustained severe and permanent injuries to his respiratory system, throat and eyes, and to his neurological system. He was diagnosed with Reactive Airways Disease Syndrome (RADS), vocal cord dysfunction, Posttraumatic Stress Disorder, and Parkinsonism.  His condition, which causes difficulty in swallowing and moving, is progressive and incurable.

 Kowalewski sought representation by Paula Jossart of Jossart Law Office, LLC, Burnsville, MN, (http://www.jossartlaw.com/). He filed suit in January 2017, alleging negligence under the Federal Employers' Liability Act (FELA), the Federal Safety Appliance Act (FSAA), and federal safety regulations. Subsequently, the firm retained H+A to analyze the incident.

 Using fundamental principles of engineering physics, H+A Associate, Erik D. Power, analyzed the over-speed coupling of the 11 cars carrying hydrocarbons.

 In his initial report in the matter, Power determined the range of speed of the cars at coupling, finding that they were traveling downgrade between 5.1-7.6 mph, speeds significantly in excess of the 4 mph prescribed speed.

 Two months later, Power generated a second report in rebuttal to a defense expert who downplayed the role of excessive speed in the event, stating that it could not have caused the leak.  In rebuttal, Power took into consideration the circumstances of the actual event and concluded that the defense report was flawed and misleading in that it cited tank car coupling studies performed under substantially different circumstances.  Assessing impact speed and risk as influenced by the circumstances of the incident (the weight and number of cars involved, and the volatility of the liquids they contained) Power concluded that the coupling collision force created significantly more pressure in the tanks than found in the study presented by the defense, and that this additional pressure caused the leakage.

During the proceedings, BNSF filed Motions to Exclude Expert Testimony. These were denied. 

Influenced by Power’s reports, Hennepin County Judge Amy Dawson found the railroad negligent in causing the 11 cars carrying hydrocarbons to couple at excess and dangerous speed in the Northtown yard and failing to inspect the 11 cars' release valves to ensure proper calibration and avoid unnecessary pressure relief venting.

In February 2018, Judge Dawson ordered BNSF to pay Plaintiff’s costs and attorney’s fees, leaving it to a jury to determine damages.

Subsequently, a jury awarded Kowalewski $15,343,753 in damages. In addition, BNSF was found liable for $1.1 in attorney’s fees and $89,600 in expenses.  Moreover, BNSF, found to have engaged in egregious misconduct during the proceedings, was fined $5.8 million in financial sanctions, an amount deemed sufficient to deter future misconduct.

The matter came to a close last week, 5½ years after the incident, when BNSF wrote the check for damages for Scott Kowalewski.



Erik D. Power, MS, PE, consults in the areas of vehicular accident reconstruction and injury biomechanics. He is a Registered Professional Mechanical Engineer in the State of Oregon, and a Fully Accredited Traffic Accident Reconstructionist. Mr. Power earned his M.S. in Mechanical Engineering with a concentration on injury biomechanics from Virginia Tech, where he worked in the Virginia Tech Center for Injury Biomechanics Laboratory. He also has prior work experience as a biomechanical engineering contractor for the National Highway Traffic Safety Administration.

 Hayes+Associates, Inc, (http://www.hayesassoc.com) is an expert witness and consulting firm, based in Corvallis, OR. The company brings more than 75 years of collective experience in academic research, university teaching and forensic testimony to practice areas that include vehicle collisions, premises safety, slips and falls, products liability, worker safety, sports and recreation, patent litigation and criminal matters.