A Minnesota State Patrol deputy was assisting a motorist on the Interstate 94 roadside when his patrol car was hit by a semi truck tractor trailer Friday morning in Stearns County, Minnesota the patrol said.

Published: Star Tribune: Newspaper of the Twin Cities
Author: David Phelps; Staff Writer
Date: August 24, 2006

Former and current employees of Katun Corp. took action this week to recover a potential pot of $15 million that they say was improperly demanded after Katun paid the U.S. government $11 million in criminal fines for its role in a mail and wire fraud scheme.

The workers say Katun coerced them, as employee shareholders in the privately held company, to pay the company for pro-rated portions of the $11 million fine.

The employees are attempting to capitalize on a federal court ruling this summer that said former Katun CEO Terence Michael Clarke did not have to contribute $1.7 million toward the fine as part of an indemnification agreement.

The employees say the company should not have demanded such payments from them.

“The idea that the company is going after low-level employees is atrocious,” said Greg McEwen, one of the attorneys representing the employees.

The company has said it intends to appeal the Clarke ruling. “We expect [the result of] that appeal to dispose of this lawsuit,” general counsel Luke Komarek said.

Xerox Corp., once a 30 percent owner of Katun, is a codefendant in the lawsuit.

Filed in Hennepin County District Court, the lawsuit names 10 current and former Katun employees as plaintiffs and seeks to represent as many as 250 in a class action.

The suit says plaintiffs paid the company amounts ranging from $92,000 to $1,350. The lawsuit said the company threatened to turn the matter over to collection services if employees did not pay.

McEwen said reimbursement to the employees, plus interest and tax benefits they didn’t receive when Katun was sold to PNA Holdings in 2002, could total $15 million.

David Phelps - 612-673-7269

Copyright 2006 Star Tribune: Newspaper of the Twin Cities

Inver Grove Heights attorney Gregory N. McEwen and his Iowa colleague, Don Beattie, have secured a $9.6 million verdict for two victims of an anhydrous ammonia tank explosion that occurred in Calamus, Iowa, in 2003.

The verdict consists of $3.8 million for the heirs of 68-year-old Bob Ryan, who died 13 days after the explosion, and $5.8 million for Nathan Nissen, who was 27 when he was injured. The men had just finished filling the tank when it ruptured, spilling 1,500 gallons of anhydrous ammonia.

The verdict is primarily against Trinity Industries, which manufactured the tank. Other defendants settled prior to trial for $2.25 million and were found to be 20 percent negligent, meaning that they will recoup 80 percent of their settlement from Trinity, said McEwen. The $2.25 million is included in the $9.6 million verdict.

After the explosion Ryan dragged Nissen to an emergency water tank and held him underwater, then insisted that Nissen be airlifted first from the accident. Ryan was posthumously awarded a Lifesaving Award of Valor from Iowa Gov. Tom Vilsack.

Nissen was burned over 51 percent of his body and spent 87 days in the hospital. His medical bills were about $487,000, said McEwen. Although he is back to work at the River Valley Cooperative, where he worked at the time of the explosion, he suffers from frequent infections and respiratory illness.

McEwen said he asked the jury to communicate with the defendants in a language they could understand by returning a large verdict and also told the jury an injury in Iowa was worth as much as an injury in Chicago or Minneapolis. He believed the rural jurors could relate well to the plaintiffs.

Copyright, 2006, Minnesota Lawyer (Minneapolis, MN)

When a train derailed near Minot, ND., on Jan. 18, 2002, five overturned tanker cars released almost 221,000 gallons of anhydrous ammonia into the night air as local residents lay sleeping. The incident spawned much litigation. Many of the Minot cases were consolidated before Hennepin County District Court Judge Tony Leung and entitled In re the Soo Line Railroad Company Derailment of January 182002 in Minot, ND.

The cases have added to a national debate on whether railroads can be sued in state court. The railroads argue that the plaintiffs’ claims are pre-empted by federal law – which does not provide a cause of action. Meanwhile, local plaintiffs’ lawyers are upset with a series of federal appellate rulings in favor of the defense in the Minot litigation. The litigation’s convoluted procedural history is difficult to follow, but here is a sampling: *The railroad removed one of the first filed state cases, known as the Allende case, to federal court in Minnesota under the doctrine of complete pre-emption.

The plaintiffs moved to remand the case back state court, arguing that the plaintiffs asserted only state law negligence claims and that the Federal Railway Safety Act (FRSA) did not transform such claims into a federal cause of action. U.S. District Court Magistrate Judge Janie S. Mayeron found against complete pre-emption, and the derailment cases went back to state court and Leung. * Another group of plaintiffs, known as the Lundeen plaintiffs, subsequently filed suit in Minnesota state court. The railroad removed these cases under federal question jurisdiction because the Lundeen plaintiffs included a violation of federal law on the face of their complaint. Ultimately, the Lundeen plaintiffs amended the complaints to remove the federal allegations, and U.S. District Court Judge Richard Kyle remanded. The railroad appealed to the 8th U.S. Circuit Court of Appeals, which ruled in its favor, finding federal jurisdiction based on complete pre-emption of the negligent inspection claims. *

The railroad subsequently removed its other state court cases, including the Allende case (for which a verdict had been rendered in February 2006) and another case – the Elm case – which was in trial. U.S. District Court Judge Michael Davis granted a motion by the Elms to remand their case back to state court. * The railroad petitioned the 8th Circuit for relief from the remand order via a writ of prohibition.

The appellate court ordered the Elm case back into federal court and set a briefing schedule on the writ. Motions to remand have been made in the other Minot derailment cases, but no hearings have been set. * In a class action brought by Minot derailment victims in North Dakota federal court – MehI v. Canadian Pacific Railway – U.S. District Court Judge Daniel L. Hovland granted the railroad’s motion to dismiss based on pre-emption as a defense (as opposed to complete pre-emption, the jurisdictional doctrine) earlier this year. Appeal of the MehI decision is pending in the 8th Circuit.

No remedy? The end result of this tangled web of litigation may be that because of the doctrine of federal pre-emption, the plaintiffs will lose their right to any recovery because the FRSA does not provide the injured persons a remedy.

The plaintiffs’ lawyers argue that such a result would be wholly inequitable given that the railroad has already admitted liability for the derailment in the Minnesota state court cases. The railroad’s lawyer counters that had Congress intended for the plaintiffs to recover, it would have made provision for their recovery under federal law.

The railroad’s position is simple, explained its attorney, Tim Thornton of Minneapolis. Congress enacted the FRSA in 1970 and decided that safety was best ensured through a uniform system of regulations and exclusive authority to regulate the railroads in the federal system. It is true that some plaintiffs – even those who have received jury verdicts – will lose their causes of action if the railroad prevails, but that is the law as enacted by Congress, said Thornton.

Plaintiffs’ attorney Steven M. Hunegs of Minneapolis told Minnesota Lawyer he would frame the issue simply: “How is it that a railroad safety statute – 30 years after its passage – can be found to insulate a railroad from admitted liability in a catastrophic derailment?” Minneapolis plaintiffs’ attorney George Eck agreed, saying that Congress could not have intended to prevent victim recovery where the railroad admitted liability. “I’m an advocate but this is a fairly-stated issue. We think the question answers itself,” he told Minnesota Lawyer. The various twists and turns in the case have led to a “rogue result,” said Eck. “Somehow we got off into Never Neverland.” Due process is at stake, said Ronald Barczak, one of the attorneys for the Elm plaintiffs.

“The railroad is attempting to deprive innocent people of their basic constitutional rights to a jury trial. What is the railroad afraid of? Justice?” Inver Grove Heights attorney Gregory N. McEwen, who is handling about 40 percent of the train derailment cases, questioned the long-term implications of the railroad’s strategy. He told Minnesota Lawyer that it may ultimately not be in the railroad’s best interest to escape liability when it has already admitted responsibility for the accident in open court.

“If recovery is tenuous, how many other communities are going to want railroads? Pretty soon people are going to be up in arms. The bigger issue is the impact on the railroad’s business,” McEwen said. Plaintiffs’ attorney Richard G. Hunegs said that it is “not ridiculous” to view the railroad’s arguments as part of a tort-reform strategy. “You’re seeing a conservative Congress trying to codify large areas of law that [arguably] pre-empt state common law,” he said. “You’re going to see these issues involving every one of the regulatory bodies.

You’re going to see us swimming in pre-emption claims.” Both sides agree on one thing – the railroad cases are chugging down a lengthy track. “These cases are by no means done. If we don’t prevail at the 8th Circuit there will be another appeal,” said McEwen. Thornton told Minnesota Lawyer: “This case is more likely to go to the U.S. Supreme Court than any case I’ve handled.”

Copyright, 2006, Minnesota Lawyer (Minneapolis, MN)

Published: Star Tribune: Newspaper to the Twin Cities
Author: Tony Collins; Chuck Haga; Staff Writers
Location: Red Lake, Minn.
Date: 2006-07-21

The Red Lake School District has agreed to pay $1 million to 21 families of those killed or injured in the March 2005 shootings that left 10 people – including the teenage gunman – dead.

Although $1 million is the maximum the district can be held liable for under state law, it’s not enough, said LeeAnn Cobenais-Thunder, mother of Steve Cobenais, one of the most seriously injured.

“Steve and the other victims’ families deserve more,” she said Thursday.

The settlement between the families and the district was announced Thursday and came after more than a year of negotiations, said Shamus O’Meara, lead attorney for the school district.

Of the $1 million settlement, which must be approved by state and federal courts, $900,000 will go to the families of those killed and injured. The remaining $100,000 will be held in escrow for future distribution or to cover new claims.

A judge will decide how much each family will receive of the $900,000.

Tribal Chairman Floyd (Buck) Jourdain, reelected in a run-off election Wednesday, said, “there is no compensation when it comes to the loss of a loved one. I just hope this helps the families in some way.”

Phil Sieff, a Twin Cities attorney who negotiated the settlement on behalf of the victims’ families, said Thursday that the settlement offers families some compensation and allows the school district to focus on educating students.

“Of course, the victims’ families are disappointed the amount isn’t greater,” Sieff said. “It isn’t going to compensate any of the families for their losses, but they understand we’ve obtained the maximum that could be recovered from the school district.”

On March 21, 2005, Jeff Weise, 16, killed his grandfather and grandfather’s girlfriend at their home, then drove to the school and opened fire, killing seven others before taking his own life.

In January, 17-year-old Louis Jourdain, the son of the chairman, was sentenced to up to a year at a juvenile treatment facility after pleading guilty to sending threatening messages in connection to the shootings.

Further litigation is possible, but no one would comment Thursday on what form that might take.

“If we determine there are other responsible parties, we will likely pursue those parties in civil litigation,” Sieff said.

Cobenais-Thunder said her family has incurred about $500,000 in medical bills for Steve, who was shot in the eye and suffered brain damage. The 16-year-old has a prosthetic left eye. He has had three major surgeries and still has two or three more to go.

Cobenais-Thunder said that whatever portion of the settlement Steve gets, some will go to the lawyers and to the state of Minnesota, which is paying for her son’s health care through Medical Assistance.

“Personally, I don’t think we should have to pay Steve’s medical bills,” she said. “Steve didn’t ask to be shot.”

Arnold Pemberton, chairman of the Red Lake school board, said in the news release that he hopes the settlement means that the district and Red Lake community can “take a significant step toward healing and our future together, always remembering and respecting the victims and families lost and affected by this tragedy.”

Sieff and St. Paul attorney Randy Thompson represented 11 of the families involved in the
settlement. Inver Grove Heights attorney Gregory McEwen and Bemidji attorney Mark Rodgers represented nine. Minneapolis attorneys Elliot Olson and Richard Ruohonen represent Cobenais.

“No amount of money that Steven gets is going to make up what he went through,” Ruohonen said. “We hope whatever part of the $900,000 he receives will at least assist him in getting the help he needs. It’s a step in the right direction.”

The Red Lake settlement is one of the highest in recent memory.

In the aftermath of the 1999 shootings at Columbine High School in Colorado, in which two gunmen killed 12 students and a teacher before committing suicide, families of at least 13 of the victims split a $285,000 settlement from the county school district and sheriffs office.

The teacher who was killed reached a $1.5 million settlement with the county and a student who was wounded reached a settlement for $117,500, according to media reports.

About 30 families also shared in $2.85 million settlement that was essentially funded by the homeowner’s insurance policies of the gunmen’s parents and three others who provided weapons to them.

In all, 37 wrongful-death and injury lawsuits filed against the families of the killers, Eric Harris and Dylan Klebold, were settled between 2001 and 2004.

Cobenais-Thunder said her family wants to make sure that Steve will be able to get the care he needs.

“Who knows what’s going to happen to me or his father?” Cobenais-Thunder said. “We want to make sure he’s properly taken care of.”

Staff reference librarian Linda Scheimann provided research for this report. The writers are at tcollins@startribune.com and crhaga~startribune.com.

MORE ABOUT RED LAKE

- In the aftermath of the shootings at Red Lake High School, Star Tribune reporters and photographers spent several months on the reservation last year. For their stories and photos, see www.startribune.com/redlake.

- Red Lake Net News is a website with information about the reservation and other Indianrelated news. The address is www.rlnn.com.

Copyright 2006 – Star Tribune: Newspaper of the Twin Cities