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Robert W. Johnson & Associates was retained to provide economic testimony in quantifying the present cash value of future lost earnings and punitive damages.

Location: Martinez, California

Case: Robert Pietrowski v. Burlington Northern Santa Fe Corporation, City of Pinole, State of California and Does 1-50, inclusive.

Court: Contra Costa County Superior Court, Case No.C-02-00335.

Plaintiff’s Attorneys: Plaintiff’s attorney Jonathan E. Gertler of the Law Offices of Chavez & Gertler, Mill Valley, California.

Judge: The Honorable William G. Crawford.

Case Synopsis: On December 19, 2001, Mr. Pietrowski, 37, a lineman for Pacific Gas & Electric was working at a private train crossing near the border of Hercules and Pinole. As he drove over the tracks there were no lights or gates to give him any warning of an oncoming locomotive. His truck was struck by the train, sending it flying into the air. Mr. Pietrowski had no memory of the accident.

Burlington Northern Santa Fe Corp. had intended to close the crossing since it was considered unsafe. The railroad acknowledged the planned closing in late October, based on a letter to a ranch owner adjacent to the tracks. The letter stated the crossing would close in 30 days, attorneys said. The train struck Pietrowski’s truck 50 days after the letter was written.

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Mr. Pietrowski sustained a serious closed head injury as well as burst fractures from T3 to T7, which required a spinal fusion. Mr. Pietrowski stayed in an acute care hospital two months, followed by stays in two rehabilitation facilities over the next seven months.

Expert Testimony: In this case, Mr. Johnson was retained to testify regarding two elements of damages, compensatory and punitive. Mr. Johnson first testified as to Mr. Pietrowski’s loss of future earning capacity. Mr. Pietrowski had a solid earnings history dating back to 1996. In Mr. Johnson’s analysis, he decided to bracket Mr. Pietrowski’s earnings based on his actual earnings history and the average earnings for his peer group. This gave him an annual earning capacity loss of $94,000 to $111,000, respectively. Mr. Pietrowski also received as part of his compensation, fringe benefits that amounted to 25.6% of his wages. After accounting for possible mitigating income, the present cash value range of Mr. Pietrowski’s net lost future earning capacity was from $2.6 million to $3.3 million.

After the compensatory verdict, Mr. Johnson’s next assignment was to testify as to the health, wealth and economic status of BNSF Railway Company, a wholly-owned subsidiary of Burlington Northern Santa Fe Corp. Mr. Johnson reviewed financial reports filed with the SEC for the two companies. He was able to convey that BNSF Railway Company is an extremely strong company with sales of $10.9 billion in 2004 ($29 million per day) and $1 billion in net income in 2004 ($2.7 million per day). He also concluded that BNSF Railway Company had a net worth of $16.4 billion and its parent company, Burlington Northern, had spent over $2.3 billion repurchasing its own stock since 2000.

Result: After an eight week trial, the jury returned a $6.9 million verdict, consisting of $486,676 in past wage loss, $4,500,000 in future wage loss and future assisted living medical expenses, and $2,000,000 for past and future pain and suffering damages. The jury found that Burlington Northern Santa Fe Corp. was 70% responsible, with Pietrowski responsible for 17% and PG&E for 13%. The net compensatory award was $5,538,941.

After hearing Mr. Johnson’s punitive damages analysis, the jury returned an additional $2 million verdict in favor of the plaintiff. The total net compensatory and punitive award was $7,538,941.

Attorney’s Comments: Plaintiff’s attorney Jonathan E. Gertler stated "Mr. Johnson was able to convince the jury that the present cash value of Mr. Pietrowski’s lost earning capacity and future assisted living medical expenses were not exorbitant. He was also able to give the jury a good understanding of Burlington’s financials so they could make an educated decision of what was fair. His rebuttal of Burlington’s financial expert shredded the railroad’s creditability."