The controversy erupted after dozens of lawsuits were filed in Montana against BNSF Railway Company by out-of-state railroad workers with cancer and other injuries.
One lawsuit was filed on behalf of Brent Tyrell, a man who died of kidney cancer after he was exposed to a variety of carcinogenic chemicals on the job.
BNSF was also sued in Montana by Robert Nelson, a resident of North Dakota who is seeking compensation for knee injuries he says occurred while he was employed as a fuel truck driver for BNSF.
Lawyers do not claim their injuries occurred in Montana or the victims ever worked for BNSF in Montana, raising questions of jurisdiction.
BNSF is based in Delaware, but its primary place of business is Texas. It runs 32,500 miles of railroad track in 28 states in the Western U.S. and Canada — including over 2,000 miles of track in Montana.
In May 2016, the Montana Supreme Court ruled that the state has jurisdiction over railroad injury lawsuits because BNSF does business in the state and “maintains substantial, continuous, and systematic” contact.
BNSF disagrees. It wants the lawsuits dismissed, citing a recent ruling by the U.S. Supreme Court in Daimler AG v. Bauman that a state does not have jurisdiction if a defendant is not “at home” in the state.
The Daimler case was somewhat unique. It involved survivors of Argentina’s “Dirty War” who filed lawsuits in California against Mercedes-Benz — essentially, foreigners suing a foreign company for events that occurred entirely outside the U.S.
In comparison, railroad injury lawsuits were filed by Americans against an American corporation under the Federal Employers Liability Act (FELA) — a law that explicitly gives workers the right to file lawsuits in any state where the defendant was doing business at the time.
FELA was created in 1908 in response to a high number of railroad deaths. Congress understood that working for the railroad was inherently dangerous and they wanted to give workers protection.
Whatever the U.S. Supreme Court decides on BNSF Railway Co. v. Tyrrell, it will have a big impact on future FELA lawsuits.
Railroad companies are afraid of “forum shopping,” in which lawyers file lawsuits in states where they think juries will award big verdicts. Last year, $7.5 million was awarded to a railroad worker with cancer named James Brown, which sparked more lawsuits in the same court.
On the other hand, outlawing the practice would make it nearly impossible for railroad workers to file FELA lawsuits outside of states like Delaware or Texas, where the railroad is running its business — but not running most of its trains, or employing most of its workers, or causing most of their injuries.
The idea of “forum shopping” goes against conservative values, but if the court strikes down BNSF Railway Co. v. Tyrrell, the next victims of Argentina’s “Dirty War” may be American workers. We will be watching the outcome of this case closely, so stay posted.