Re: Texas official admits helping railroads win suits brought by accident victim
- Now that I'm more awake and look over this article again, I think I
should have called him "evil or incompentent" instead of just evil. He
may simply be an idiot, not a monster.
--- In firstname.lastname@example.org, Greg Cannon <gregcannon1@y...>
> If you read to the end of the article, you see that
> this evil man still has his job. And I'd like to point
> out that he's had this job since 1994, which is the
> same year the Republican party came to power in Texas.
> Texas Official Admits Missteps That Helped Railroads
> in Suits
> By WALT BOGDANICH
> Published: March 27, 2005
> Several months ago, the Texas official overseeing rail
> crossings commented in court proceedings that many in
> the rail industry "would consider me their friend."
> That may not be surprising given what the official,
> Darin Kosmak, has done to help railroads fight
> lawsuits brought by accident victims.
> At the behest of the rail industry, Mr. Kosmak on
> about 100 occasions over the last 11 years signed
> sworn statements about warning signs at railroad
> crossings, according to court testimony. The
> affidavits were mostly drafted by the rail industry,
> which then used them in case after case as a critical
> defense against claims that unsafe crossings had
> caused deaths and serious injury, court records show.
> But now, the truth of those affidavits is being called
> into question. According to his court testimony, Mr.
> Kosmak recently admitted that his sworn statements
> misrepresented - unintentionally, he says - what he
> knew about those crossings. He repeated that admission
> in an interview last week. His statements are
> beginning to reverberate in court.
> Doubts about Mr. Kosmak's affidavits were cited by a
> federal judge in late December when he refused to
> dismiss claims against Union Pacific in the deaths of
> Juan Enriquez and his wife, Aurelia, at a rail
> crossing in Camp County, Tex. A year ago, the same
> judge - before learning of Mr. Kosmak's admissions -
> cited his affidavit as the main reason for dismissing
> claims from another fatal crash involving Union
> Carl V. Crow, a lawyer in Houston who represents the
> Enriquez family, said Mr. Kosmak's admission could
> have repercussions for similar lawsuits in Texas,
> where more than 5,000 people have been killed or
> injured at grade crossings in the last 20 years. Mr.
> Kosmak acknowledged problems with the affidavits under
> questioning by Mr. Crow in several legal proceedings.
> The affidavits, Mr. Crow said, were "devastating" to
> accident victims. "People get killed at their
> crossings, and they had this guy for 11 years who
> looked like a guy wearing a white hat out of Austin,
> just doing his civic duty," Mr. Crow said.
> Nancy J. Stone, a lawyer in Amarillo, Tex., said
> important claims in a lawsuit she filed arising from
> the death of a father and two children at a Texas
> grade crossing were dismissed on the eve of trial in
> late 2002 because of Mr. Kosmak's testimony. "It's an
> unbelievable injustice," Ms. Stone said, adding that
> the ruling left her no choice but to settle the case.
> The railroads sought Mr. Kosmak's affidavits to help
> prove that federal money was spent by the state on
> railroad warning signs, called crossbucks. Courts have
> held that if federal money was used, accident victims
> are pre-empted from making claims under state law that
> inadequate warning signs made the crossing unsafe. In
> such federal "pre-emption" cases, Mr. Crow said, the
> victims have limited grounds to pursue lawsuits
> against railroads, which is why Mr. Kosmak's
> statements were important.
> The Texas case comes amid criticism of how the
> government oversees rail safety, as well as an
> increase in the number of deaths at grade crossings
> last year. An inspector general's report, made public
> last month, cited substantial safety problems at the
> nation's big railroads and raised questions about
> federal regulation of the industry.
> In the Enriquez case, Mr. Kosmak, who is the railroad
> section director in the Texas Department of
> Transportation, signed an affidavit saying that all of
> Union Pacific's crossings in Texas protected by
> crossbucks had "received the benefit of federal funds
> between approximately 1977 and 1981." He said he based
> his assertion on either "personal knowledge" or
> records of a federal program that operated for those
> But last October, Mr. Kosmak admitted that he had no
> proof that those federal funds were used at any Texas
> rail crossing.
> "We don't have specific records that exist any longer
> of any specific location," Mr. Kosmak said in an
> Mr. Crow said the federal program was intended only to
> bring all crossbucks up to certain standards; those
> already meeting standards were left alone, he said.
> When the program began in 1977, Mr. Kosmak said, he
> was a teenager in high school.
> "Obviously," he added, "I was not working at Txdot
> when some of the stuff included in my affidavit was
> actually performed." He said he had not understood the
> legal definition of personal knowledge. "It could be
> characterized as an honest mistake or a layman's
> mistake," Mr. Kosmak said. "It wasn't anything
> deliberate on my part."
> Mr. Kosmak acknowledged that the affidavits implied
> that every one of Union Pacific's crossings had
> received federal money. That prompted the following
> exchange between Mr. Crow and Mr. Kosmak in a
> deposition last October:
> Mr. Crow: "The 100 or so affidavits you've given in
> the last 11 years, each of those specifically implied
> that federal funds were actually spent at a specific
> D.O.T. crossing number, right, sir?"
> Mr. Kosmak: "Yes."
> Mr. Crow: "When in fact there was neither personal
> knowledge on your part or on the part of, or any
> documents to actually substantiate that, right, sir?"
> Mr. Kosmak: "That's correct."
> Mr. Kosmak testified that railroad representatives
> asked him to sign the affidavits to help them in court
> cases and that he did so in part because he believed
> he was protecting the state from lawsuits arising from
> grade crossing collisions.
> He testified that when asked by a railroad for an
> affidavit: "I ask them to go ahead and draft it. Or I
> would send them this format and say, 'Modify it, you
> know, and I'll review it and make any other changes.'
> Asked to comment on the affidavits, Steven Lubet, an
> expert in legal ethics at Northwestern University in
> Illinois, said, "The best you can say about it is that
> it is lax and not fully responsible, and then the
> interpretations get worse from there."
> Mr. Lubet said it was hard to reopen cases, even when
> new questions were raised about evidence. "There are
> avenues of relief, but they are difficult to obtain,"
> he said.
> Kathryn Blackwell, a spokeswoman for Union Pacific,
> said in a statement: "We understand that the Texas
> attorney general's office has approved the form and
> content of these affidavits. Union Pacific is entitled
> to rely on the sworn statements of a Texas state
> The attorney general's office declined to comment on
> the matter, but Mr. Kosmak said in testimony last
> October that he recalled the attorney general
> reviewing his affidavits on only two occasions.
> Ms. Blackwell also said that the affidavits were "in
> standard formats" and that they had been in use for
> many years. "This is not a Union Pacific form," she
> In November 2003, Judge David J. Folsom of Federal
> District Court in Texarkana cited Mr. Kosmak's
> affidavit as the main reason he ruled in favor of
> Union Pacific on pre-emption claims in the death of
> Paul D. Johnson at a crossing in Mount Pleasant, Tex.
> At the time, Judge Folsom said Mr. Kosmak's statements
> establish "that federal funds were expended" at the
> crossing where the accident occurred.
> But Judge Folsom reached a different conclusion a year
> later in the Enriquez case, after learning of "certain
> deficiencies" in Mr. Kosmak's affidavit. This time,
> the judge cited contradictions between Mr. Kosmak's
> affidavit and his deposition testimony, and Judge
> Folsom said evidence showed that the state official
> had "inconclusive documentation to support his
> unmistakable proclamation that federal funds were used
> to install or upgrade warning devices at the crossing
> in question."
> Robert O'Conor, a former federal judge who represented
> the Johnson family, said Judge Folsom's earlier ruling
> "decimated" his case, which he eventually settled. Mr.
> Johnson was the third person killed at that crossing
> since 1994, records show.
> Asked about Mr. Kosmak's affidavits, Mike Cox, a
> spokesman for the Texas Department of Transportation,
> issued a statement that said in part: "Any allegations
> that Darin Kosmak has done anything wrong in this
> matter are absolutely without foundation. This man is
> a decent, good state employee, and it is time he was
> left alone."
> The statement also said the Travis County district
> attorney reviewed Mr. Kosmak's actions a year ago and
> "realized there is nothing to it." Mr. Cox declined to
> answer any questions about what matters were reviewed.
> Susan R. Roberts, an assistant district attorney in
> Travis County, said the office had closed its review
> of Mr. Kosmak. Ms. Roberts declined to comment further.