Personal Injury
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March 27th, 2005

"Doubts about affidavits put into question former Texas railroad lawsuits"

Darin Kosmak is the railroad section director in the Texas Department of Transportation. In the last 11 years, the Texas official overseeing rail crossings has, on behalf of the rail industry, signed sworn statements about warning sings at railroad crossings on about 100 occasions, according to court testimony.

The affidavits were mostly drafted by the rail industry and were used in cases to defend against claims that unsafe crossings had either caused death or serious injury. In November 2003, Judge David J. Folsom of Federal District Court in Texarkana cited Kosmak’s affidavit as the main reason he ruled in favor of Union Pacific on pre-emption claims in the death of a man at a crossing. At the time of the case, the judge said Kosmak’s statements established federal funds were expended where the railroad accident occurred.

Courts have held if federal money was used on railroad warning signs, called crossbucks, that accident victims are pre-empted from making claims under state law that inadequate warning signs made the crossing unsafe. Kosmak’s statements have been important because his affidavits helped prove federal money was spent by the state on the crossbucks, but now doubts about the affidavits have been raised.

In December, Judge Folsom refused to dismiss claims against Union Pacific in the deaths of a man and his wife at a rail crossing in Camp County, Texas because the judge had doubts about Kosmak’s affidavits. Despite his ruling just over a year prior, the judge cited contradictions between Kosmak’s affidavit and his deposition testimony. 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.”

In the case, Kosmak 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” based on “personal knowledge” or records of a federal program that operated for those years. However, last October Kosmak admitted he did not have proof of the federal funds.

In an inspector general’s report that was made public in February, substantial safety problems at the nation’s largest railroads were cited, as well as questions regarding federal regulation of the industry. Kosmak’s admissions come amidst criticism of the government’s oversight of rail safety and the increased number of deaths at grade crossings in the last year.

According to the attorney representing the family involved in the controversial railroad suit, Kosmak’s admission could affect similar lawsuits in Texas, including some of the over 5,000 people killed or injured at grade crossings in the last 20 years.