August 19, 2009
Buying Precedent (or Lack Thereof): The Klein v. Amtrak Problem
Posted by Christine Hurt

So, let's say that you are a very large defendant who is a repeat-player in the torts litigation arena.  You lose a very big case that sets a particularly bad precedent for you.  The payout is substantial, but doesn't affect your bottom line -- unless you multiply it by future cases that can rely on the bad precedent.  You appeal, and you're not sure which way the panel is going to decide.  This isn't the kind of case that would probably be granted cert by the Supreme Court, so whichever way the case comes down, you're stuck.  So, you make an offer to settle, maybe at an even greater amount than the trial court verdict.  But then you still have that silly federal district court decision for years to come, until the line of cases may or may not be reversed.  What do you do?

What if you could make a settlement offer and get the circuit court to remand the case back to the district court judge, who has agreed to vacate all of the opinions in the case, including his opinions that upheld the jury's verdict?  Who wouldn't love that, but what judge would do it?  Well, this judge apparently.

So, for all you Torts professors out there who would have loved a fun case on attractive nuisance, I hope you saved copies of the documents.  Lexis and Westlaw has agreed to remove all the opinions from their databases, standard procedure when cases are vacated.  (I don't know if the opinion is old enough to have hit the F. Supp. hard volume/index.)  In this case (Klein v. Amtrak), two teenagers (almost 18), climbed on a railcar owned by one defendant in the railyard owned by Amtrak.  Electricity was left on for the car for 4 days.  Although employees are trained in avoiding electrocution in wired cars (which seems trickier than I originally would have thought), no signs were posted.  They were trespassers, yet the presence of a large amount of graffiti in the railyard seemed to indicate that the frequent presence of trespassers was probably known by the landowner, Amtrak.  The jury returned a $24 million verdict for the severe injuries sustained by the plaintiffs, which was upheld by the district court judge.  The two defendants appealed, and the Third Circuit heard oral argument on what exactly is the state of the law as it applies to older teenage trespassers and railcars.  But, we'll have to wait to find out the state of the law for now.

UPDATE:  After looking around Westlaw (Klein v. National Passenger R.R.), I'm a little confused.  Most of the documents have no text anymore, except for one, which is the district court granting summary judgment to  Norfolk Southern Corp., the owner of the railcar, on all claims against it (2006 wl 1997369).  According to news reports, this defendant was involved in the trial, received a judgment against it, and argued on appeal.  So, I would think that the dismissal by summary judgment must have been overturned at some point.  However, I can't find a Third Circuit opinion (or citation) for that.  Could the settlement have vacated opinions against the defendants, but not opinions for them?

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