Straight Track #133

In other words, can you impeach a Railroad with evidence that it was convicted of a felony?

Yes, according to a Federal Judge in Tennessee. Although he wasn't able to find any other cases where Judges had to decide this question, Judge Curtis L. Collier ruled a Railroad can be impeached with evidence that it was convicted of a felony. The case is Hickson Corp. v. Norfolk Southern Railway Co., (Eastern District, Tennessee) (September 19, 2002).

Collier's opinion discusses a ruling he made during a trial last April. The Plaintiff, Hickson Corp., filed a lawsuit against Norfolk Southern Railway after arsenic acid spilled in a railroad yard. At trial, the Judge explained, the Railroad presented evidence "tending to show its good character for environmental stewardship."

For 12 years in a row, according to testimony from a Railroad employee, Norfolk Southern won the gold medal for safety in the E.H. Harriman Memorial Awards. [In fact, the Railroad's website has a pretty picture of one of its gold medals, along with an announcement proclaiming that, last May, Norfolk Southern won the award for the 13th consecutive time.]

During the April trial, Collier recounted, the Railroad called an employee from its "environmental operations group" who bragged: 

"Norfolk Southern – and I'm proud to say this – we have won the gold medal for safety for 12 consecutive years. Our railway is the safest railway industry in the nation."

Gilding the gold, the employee explained: "[The award is] called the E.H. Harriman award. . . . For Class 1 railroads we have won the gold medal for 12 consecutive years. And that, to me, says everything about your safety program. 

"Prior to us getting on this run of winning this award so many years in a row, I think the most that anybody had ever won it was maybe two or three times in a row. So we're on a roll. And we're very, very proud of our safety record. We have set a new benchmark in the industry, and we're very proud of it. It's been difficult to achieve, but we have worked to make sure our employees are safe."

How do you challenge a Railroad with a literally golden safety record? Well, there was the Railroad's felony conviction. Hickson's attorney wanted to take some of the sparkle off Norfolk Southern's gold medals by questioning the company's "assistant vice president of environmental protection" about "Norfolk Southern's conviction of a felony in 1989 for the improper disposal of paint at a rail yard in Moberly, Missouri," Judge Collier explained.

The Railroad objected, arguing that "Rule 609" didn't apply to corporations. (Rule 609 says you can, in certain situations, impeach the credibility of a witness with evidence that the witness was convicted of either a felony or a crime involving dishonesty.) And the Railroad also argued that evidence of its felony conviction wasn't "relevant."

Rejecting these arguments, Judge Collier explained:

"The Court has been unable to locate any case that has dealt with the applicability of Rule 609 to a corporation; however, the Court realizes a corporation can only act through the words and actions of its officers, agents, and employees. When such officers, agents, and employees testify on behalf of the corporation, in reality it is the corporation testifying. In such cases it would be reasonable to allow impeachment just as if the corporation was a person. Any other ruling would give the corporation an unreasonable advantage under Rule 609 as compared to a natural person.

"Alternatively," Collier continued, "even if Rule 609 is determined not to apply to the circumstances of this case, the Court will still find the prior conviction relevant[.] 

"Norfolk Southern has already introduced evidence interjecting its good character into the trial. Specifically it has introduced evidence it has won a safety award for a period of several consecutive years and is the only railroad company in the country to have achieved this accomplishment . . . . Thus, Norfolk Southern has made its good character for safety an issue subject to impeachment. Its felony conviction for an environmental violation speaks directly to the issue of its credibility regarding its good character for safety and its response to the spill involved here. Any prejudicial effect of this conviction does not substantially outweigh its probative value."

Hickson was therefore permitted to impeach Norfolk Southern with evidence of its felony conviction. 

The moral of the story is that when a Railroad brags at trial that it has a golden reputation for safety, check its rap sheet.

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