Paoli Kutzman, P.C.

Union Designated Legal Counsel

257 West Front Street, Suite A • P.O. Box 8131 • Missoula MT 59802
ph. (406) 542-3330 • fax (406) 542-3332 • contact@paoli-law.com

Legal News and Recent Firm Activities

• Montana Supreme Court distinguishes Citizens United, upholds constitutionality of century-old state-law limits on corporate campaign contributions. On December 30, the Montana Supreme Court issued a critically-important decision upholding Montana's statutory limits on corporate campaign finance. The statute has been on the books since 1912 and was the state's response to the political wars between the "Copper Kings" of Butte and Anaconda. In its decision in Western Tradition Partnership, Inc. v. Attorney General, 2011 MT 328, the Montana Supreme Court carefully distinguished Citizens United v. F.E.C., 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), and concluded that Citizens United does not invalidate all statutory restrictions on corporate political speech. The Montana Supreme Court reviewed the sad and often painful history of political corruption in Montana and held that the State had demonstrated a compelling state interest sufficient to justify Montana's statutory limits on corporate campaign financing.
• OSHA Orders Union Pacific to Reinstate and Pay $300,000 to Idaho Employee It Fired After Reporting On-Duty Injury. On December 20, 2011, the Occupational Safety and Health Administration ("OSHA") announced that it had ordered the Union Pacific Railroad to reinstate and pay $300,000 to an employee the railroad had fired after the employee reported an on-duty injury. OSHA has jurisdiction over such "whistleblower" claims under the Federal Railroad Safety Act of 2007. The employee, an Idaho resident, reported an on-duty injury as federal permits and as Union Pacific's own rules unambiguously require. The railroad suspended and then discharged the employee, 23 days after the employee reported the injury. OSHA's investigation found reasonable cause to believe the injury report was a motivating factor in the railroad's decision to fire the employee, and noted UP's history of similar retaliatory firings in four other cases around the United States since 2009. OSHA ordered UP to reinstate the employee and prohibited UP from retaliating further against the employee for having prevailed in the OSHA whistleblower investigation. OSHA further ordered UP to pay the employee $300,000 for back wages, compensatory damages, attorney's fees, and punitive damages.
• Russian Long-Haul Driver Sentenced. In November of 2011, District Judge Deschamps sentenced contract truck driver Sergey Buslayev to a 20-year prison term, with 10 years suspended on conditions, for his role in negligently causing the death of volunteer firefighter Jerry Parrick. Parrick was parked in his truck on the shoulder of I-90, using his flashing emergency lights to warn traffic of another accident ahead. Buslayev was driving a tandem trailer rig under contract for FedEx Ground Package System, Inc. Buslayev lost control of the tandem rig and crashed into Parrick's truck, killing him. David Paoli led our firm's representation of the family in their civil lawsuit against FedEx Ground and its two contract Russian drivers. He negotiated a settlement for the family and then, after the settlement, volunteered to help with the criminal prosecution of Buslayev. The State of Montana charged Buslayev with Negligent Homicide and Negligent Endangerment. David and Mineral County Attorney Marcia Boris tried the criminal case to a jury in June of 2011. The prosecution's case emphasized Buslayev's excessive speed, failure to yield to emergency personnel, inadequate maintenance of the tractor-trailer combination, improper braking, several violations of the Federal Motor Carrier Safety Regulations, and fatigue. The jury found Buslayev guilty of Negligent Homicide and Negligent Endangerment. After a period of pre-sentence investigation, Judge Deschamps sentenced Buslayev to 20 years at Montana State Prison on the Negligent Homicide count, with 10 years suspended on conditions. The judge also sentenced Buslayev to a 6-month sentence on the Negligent Endangerment count, to run concurrently with the prison term. The Missoulian covered the story in the following articles:

Brooklyn Trucker Sentenced to 10 Years for I-90 Crash that Killed Haugan Firefighter

Concerns Raised over Trucking-Related Crash Deaths

Trucking Industry Sees Infusion of Immigrants – Safety Concerns Arise

• Trial Lawyer of the Year. The Montana Trial Lawyers Association recognized David Paoli as Trial Lawyer of the Year at their annual convention on August 4, 2011.
• McBride v. CSX: U.S. Supreme Court Rejects Railroads' Demand to Gut FELA Causation Standard. On June 23, 2011, the United States Supreme Court held that FELA juries must continue to be instructed that the railroad is liable if its negligence played any part, even the slightest, in contributing to the injured employee's damages. The Court's decision is consistent with the language of the FELA itself, which provides that the railroad is liable if its conduct caused the injury "in whole or in part." 45 U.S.C. § 51. The decision also recognizes and re-affirms the Court's decision in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500 (1957). In McBride the railroad industry argued that the jury should have been instructed that the employee had to show the railroad's conduct was the "proximate cause" of the employee's injury. The railroads argued that "proximate cause" means “any cause which, in natural or probable sequence, produced the injury complained of.” This jury instruction, if approved, would have dramatically increased the railroads' latitude to try to evade the immense human cost of the injuries they keep inflicting on their employees. McBride rejected the railroads' argument and re-affirmed the "even the slightest/no matter how small" jury instructions the courts have been giving in FELA trials for more than 50 years. It was therefore a critical victory for rail labor.
• Press Spotlights BNSF's Litigation Misconduct. The Minneapolis Star-Tribune recently published a series of articles about court orders in various states, including Montana, where courts have found that BNSF hid or misrepresented relevant information. The articles can be found at the following links:

Collision in the Courts

A Life Lost in the Fog

Derailed: A Case Gone Awry

Derailed: High-Stakes Duel

• U.S. Supreme Court Permits Montana to Pursue Tobacco Case in Court System Rather Than Arbitration. On June 1, 2010, the United States Supreme Court declined the tobacco companies' request to review the Montana Supreme Court's decision in State ex rel. Bullock v. Philip Morris, Inc. Our firm represents the State of Montana in this case. The State asserts it "diligently enforced" certain statutes the Montana legislature enacted following the historic 1998 settlement that ended litigation Montana and other states had pursued against the tobacco industry. The tobacco companies argued that Montana had to pursue this "diligent enforcement" claim in a nationwide arbitration with the other states. Montana believes the settlement agreement entitles it to litigate this claim in the state court system. The Montana Supreme Court agreed with Montana's interpretation of the agreeement, and by declining to review the case the United States Supreme Court has left in place the decision of the Montana Supreme Court.
• Ninth Circuit Holds BNSF May Have FELA Liability For Western Fruit Express Car Shop in Spokane. On May 18, 2010, the United States Court of Appeals for the Ninth Circuit ruled that our client John Schmidt can present his claims to a jury in John Schmidt v. BNSF Railway Co. and Western Fruit Express, Inc. For many years Mr. Schmidt worked in a freight car shop in Spokane, Washington. Over a 20-year period he received paychecks and correspondence from Burlington Northern and then BNSF indicating he was a railroad employee. He wants to pursue his injury claim under the Federal Employers Liability Act (FELA). However, BNSF and its wholly-owned subsidiary Western Fruit Express allege that Mr. Schmidt was actually a Western Fruit Express employee and that he therefore has no FELA rights. In its May 18 opinion the Ninth Circuit ruled that even if Western Fruit Express employed Mr. Schmidt, a properly instructed jury could still reasonably find that BNSF exercised enough control over his workplace to make BNSF liable for his injury under the FELA.

© 2010 Paoli Kutzman, P.C.
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