By: Pam Nehring, Sean Sullivan & Kathryn Doi

On April 8, 2019, the Appellate Court of Illinois Second District affirmed the defense judgment that Sean Sullivan, Kathryn Doi, and Pam Nehring obtained on behalf of their client BNSF Railway Company. In a 93-page opinion, the appellate court affirmed that the trial court properly found that plaintiffs failed to prove that fuel from a train collision migrated onto their property.

In 2007, plaintiffs sued BNSF Railway Company seeking damages for injuries caused by a 1993 fuel spill from a train wreck on BNSF’s property that released up to 7,000 gallons of diesel fuel, which allegedly migrated onto plaintiffs’ property and allegedly remains unremediated. Plaintiff, an adjacent property owner, sought $6.2 million in damages in addition to extensive cleanup of its property. Following a 12-day bench trial, the trial court entered judgment in BNSF’s favor in April of 2018, accepting DMG’s forensic evidence and arguments, and finding that plaintiff failed to carry the burden of proof as to breach of duty, proximate cause or damages.

Much of the trial focused on expert testimony concerning: (i) geology, hydrogeology and groundwater migration; (ii) forensic geochemistry and petroleum “fingerprinting;” (iii) environmental investigation techniques and standards; and (iv) the reasonable remediation (if any) necessary for petroleum contamination discovered on the Indian Creek property. In almost every regard, as the trier of fact, the trial court found BNSF’s expert testimony more compelling and persuasive than the plaintiff’s.

A central issue at trial was whether the petroleum contamination on Indian Creek’s property was diesel fuel or some other petroleum product associated with the property’s long history of industrial use. BNSF’s forensic chemistry expert testified that the Indian Creek contamination was almost entirely heavy fuel oil and gasoil unrelated to the locomotive accident. His conclusion was based on a combination of gas chromatography and sophisticated analysis of the samples for genetic biomarkers and other molecular indicators. The court found BNSF’s forensic testimony “more reliable, compelling and persuasive” than Indian Creek’s evidence based in part on:

  • BNSF’s use of more modern and comprehensive techniques and technologies;
  • Indian Creek’s reliance on an experimental fuel as an explanation for non-diesel chromatography results, without adequate investigation or knowledge of the forensic chemistry that would be associated with the experimental fuel; and
  • the court’s assessment of the comparative scope, thoroughness and scientific bases for BNSF’s forensic expert reports and Indian Creek’s forensic expert reports.

The court found that the petroleum contamination on the Indian Creek property was heavy fuel oil and gasoil, not diesel fuel, and that the contamination did not come from the train accident.

Based on all the evidence, the trial court found Indian Creek failed to carry its burden of proof on the claim that diesel fuel from the train accident contaminated its property, and on the separate issue of damages.

Plaintiffs appealed the trial court’s judgment arguing that the trial court’s finding that plaintiff failed to prove that fuel from the collision migrated onto its property was against the “manifest weight of the evidence.” In addition, plaintiff argued that the court erred in placing the burden on the plaintiff to apportion liability and that the trial court erred in finding that plaintiff failed to prove that it was entitled to damages.

The appellate court affirmed the judgment of the Circuit Court of Kane County holding that the “trial court properly found that plaintiffs failed [to] prove that fuel from a train collision migrated onto their property.” Thus, the Court did not need to address the other two issues. In its lengthy opinion, the appellate court painstakingly evaluated the evidence and expert opinions presented by both parties.

The trial court’s assessment of the forensic chemistry testimony was not unreasonable. Although the parties’ experts disagreed, the trial court found BNSF’s expert more credible because he used newer forensic techniques.

The appellate court found that any anecdotal references to odors in the boring logs as being diesel odors was speculative and unreliable as evidence of the particular petroleum product that may have been present in the sample and upheld the trial court’s finding that plaintiffs failed to establish that the contamination on their property resulted from the migration onto their property of diesel from the 1993 collision.