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Re: Texas official admits helping railroads win suits brought by accident victim

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  • greg
    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
    Message 1 of 2 , Mar 27, 2005
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      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 prezveepsenator@yahoogroups.com, 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.
      > http://www.nytimes.com/2005/03/27/national/27rail.html?th&emc=th
      > Texas Official Admits Missteps That Helped Railroads
      > in Suits
      > 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
      > Pacific.
      > 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
      > years.
      > 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
      > interview.
      > 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
      > official."
      > 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
      > said.
      > 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.
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