At the Crossroads

A train collides with a car full of young people, slicing the vehicle in two. There are heart-wrenching phone calls. One is to attorney Sharon L. Van Dyck

Published in 2011 Minnesota Super Lawyers — August 2011

Photo by: Larry Marcus

It’s devastating enough to lose a loved one in a tragic car accident. To have to relive the pain every day, waiting on whims of the Minnesota legal system, drains the soul.

That’s what the parents of Brian Frazier, Bridgette Shannon, Corey Chase and Harry Rhoades Jr.—none of whom were older than 20 when they died after their car was struck by a train—have grappled with for nearly a decade. At the time of publication, the Minnesota Supreme Court had yet to decide whether or not to uphold a $21.6 million verdict levied against Burlington Northern Santa Fe Railway Co. (BNSF).

“These families didn’t know each other,” says appellate and personal injury attorney Sharon L. Van Dyck, who represents the Chase family. “These kids were going to a party and didn’t make it. When we started this case, it was four completely different families—three of which sued the fourth and BNSF.”

On Sept. 26, 2003, a freight train collided with Frazier’s Chevrolet Cavalier on Ferry Street just north of Highway 10 in Anoka. Presumably, the only eyewitness was the train’s engineer, though BNSF disputes this. At issue is whether the crossing gate was working—and if Frazier had tried to drive around the gate. In the early stages of the case, it was assumed he tried to drive around the gate. But in the light of new evidence, or lack of it, Washington County Judge Ellen Maas gradually granted the plaintiffs broader discovery and sanctioned BNSF $4.2 million for abuse of the legal process nearly a year after the trial. The Frazier family joined forces with the other three families two years into the discovery process, well before the initial May 2008 trial.

The litigation has taken a toll on the families. “It hurts them. They cry, they don’t want to go on,” says Van Dyck. “Sometimes one of the fathers can’t come to things. But they are just determined.”

The case is one of the highest-stakes cases yet of her career. Van Dyck began working on it while at Minnesota personal injury powerhouse Schwebel, Goetz & Sieben, and stayed involved with the case, even after leaving the firm in 2007 to hang up her own shingle. Today, she manages the one-woman Van Dyck Law Firm, with the support of her legal assistant, in St. Louis Park.

It doesn’t fit Schwebel’s model to take on these railway cases, Van Dyck explains. “[They’re] big, expensive, high-risk cases, because if you lose them—that’s three and a half years and a few thousand hours, which is what I had put into the Frazier case. It’s a black hole of time, effort and energy.”

 

A high tolerance for risk runs in Van Dyck’s blood. During World War II, her Belgian father, Emile, was in the Belgian Underground, while her mother, Orpha Gresham, left her family farm in Indiana to join the Women’s Army Corps and U.S. Secret Service abroad. The two crossed paths during spy missions in London. A few years after the Allied forces declared victory, the couple married and moved to Manhattan, where Van Dyck was born. “GIs brought back women,” she says. “My mom brought home my dad.”

The way her father’s career took her around the country, Van Dyck may as well have been an Army baby. “My dad was a real entrepreneur in the fiber glass industry,” she says. “He invented processes for developing products. In the early 1950s and ’60s there was the corporate shuffle. You moved to where the next step up was. So I attended eight schools in six years. When people ask me where I’m from, I say, ‘The U.S.A.: New York, Connecticut, South Carolina, Texas.’”

The moves were sometimes very quick. “When I graduated from high school in South Carolina,” she says, “my father had taken a job in Texas. So we went to my graduation, then piled in the car and moved.”

Her transient upbringing gave Van Dyck the gumption to change course throughout her lifetime—such as when she decided to go to law school after nearly a decade of practicing occupational therapy. Upon graduating with high distinction from Indiana University in 1974, she went to work for a hospital in Indianapolis, and did the same after moving to Minnesota in 1977. When she realized her pay scale was capping out, Van Dyck, then a newly single mom, re-evaluated. “It was a matter of raising my son by myself,” she says. “I was never going to have the house with white picket fence and dog. My whole life had been turned upside down. Why not start over?”

She chose law for its intellectual rigor. “The first lawyer I got to know was my divorce lawyer,” she says. “I knew I didn’t want to go into family law.” She worked her entire way through night school at the William Mitchell College of Law, and has a special appreciation for select professors who allowed her to bring her son to class. (“He would literally sit at the desk with his Matchbox trucks,” she says.) Toward the end of her tenure, she took out a loan so she could take a full-time position with the Minnesota Supreme Court. She was its first female marshal. “Basically, you’re a gopher, but it’s a great job for a law student,” she says. During this season of her life, she remembers not sleeping much: “But you just do what you’ve got to do when it’s required of you.”

Her next move was taking a job as a law clerk with Schwebel, Goetz & Sieben. After graduating magna cum laude from William Mitchell in 1987, she joined the firm. “Schwebel gave me a big start,” she says. “It allowed me to do civil litigation.” She eventually took over appeals and complex motions practice for every major case that came through Schwebel’s doors. “With a motion to dismiss, the whole case will live or die depending upon what a judge decides,” she explains. “It’s often on a purely legal matter. Law and fact.”

The appellate and motions cases became her bread and butter. “Trial lawyers are very good on their feet. They are storytellers, big-picture people who use details well,” she says. “Appellate lawyers are very analytical. I’m really good in front of a panel of judges instead of before a jury. I enjoy playing hopscotch with judges.”

Her first case, Kaiser v. Memorial Blood Center of Minneapolis, Inc., involved a lot of hopscotch. “The case was on my desk when I got back from taking the bar exam,” she says. And it would stay there for the next five years.

Her client had contracted HIV from a blood transfusion from two sources after giving birth. In the 1980s, there was testing for certain types of hepatitis, but a test for HIV didn’t exist yet when accepting blood donations.

“I didn’t know what I was doing,” Van Dyck says. “I was scrambling like a maniac trying to find anybody doing this. There were many cases across the country, and everyone was losing.” Her case wove through the 8th U.S. Circuit Court of Appeals and eventually made its way to the Minnesota Supreme Court. “I argued there only two years out of school, because I followed my nose,” she says. Ultimately, the case settled. “The big result in Kaiser was the effect of the ruling on the applicable statute of limitations.”

A few years later, she found herself digging through FBI files in a Kansas City, Mo., warehouse for another client. “I ended up working on all the odd cases,” she says. “I worked on one where a guy fell out of a dunk tank—after someone dressed in a chicken suit thought he’d be funny by triggering the seat manually when the guy on the seat was unaware of his presence. Sadly, the guy on the seat fell backward out of the tank, hit his head on concrete and became a quadriplegic.”

One of Van Dyck’s colleagues won against the Dundas Jaycees, the volunteer organization responsible for supplying the homemade dunk tank. When Van Dyck sued to collect the money from the Jaycees’ insurance company, it became clear that the insurance didn’t exist. She asserted that the insurance agency that sold the insurance to the Jaycees should have known it was fake. “The U.S. Congress had even investigated the insurance ring,” she says. “The Department of Justice had put the head broker in jail. It was a Ponzi scheme.”

So in the dead heat of summer, she ended up “in an unair-conditioned warehouse looking at FBI files that were unindexed,” she says. “A retired FBI agent, out of the goodness of his heart, met me in Kansas City and helped me interpret documents. He said, ‘Sharon, the only way to figure them out and to catch them, is to think like they do, to think like a criminal.’” In the end, Van Dyck recovered a sizable reward for her client. 

These investigative skills would be invaluable in the years to come, when she handled large-scale railroad injury cases. The first of such cases came in the form of Hernandez v. State of Minnesota in 2000. Schwebel attorney Paul Godlewski recruited Van Dyck to research the federal issues surrounding the railway accident, which involved a family and many devastating injuries. Together, they secured “a significant settlement” for the victims.

It was Godlewski who originally took the BNSF case, representing the Chase family. “During the course of the case, Sharon became indispensable,” he says. “She developed genuine rapport with the judge and briefed honestly, citing correct law. Initial impressions were that the kids went around the gates. Some early rulings were very conservative. Then the court started to listen. Sharon’s efforts were extremely time-consuming, and involved lots of early, hard work.”

In 2008, Judge Maas issued the historic $21.6 million judgment, ruling BNSF was 90 percent at fault. But the case would take several more turns. In 2009, Judge Maas tacked on $4.2 million in sanctions after finding the railroad guilty of destroying and fabricating evidence to support its case.

“There was so much evidence that was destroyed,” says Van Dyck, who traveled to BNSF’s Fort Worth, Texas, headquarters to take depositions. “The biggest, most glaring, was the missing electronic evidence. Railway crossing gates and lights are controlled and recorded by a box—the equivalent of a black box in an airplane. If nobody had messed with evidence, we would have known if the bells went down. BNSF refused to give a copy of the electronic downloads to the police at the time of the investigation.”

And then there was the issue of paying off witnesses. Shortly after the plaintiffs petitioned the Minnesota court for sanctions, four new witnesses for BNSF emerged—two of which were allegedly paid a total of $15,000 to come forward. BNSF had appealed its case.

Last September, the Minnesota Court of Appeals ordered the liability portion of the case retried, citing improper jury instructions; and in April, Van Dyck and her colleagues argued before the Minnesota Supreme Court. If the justices affirm the Court of Appeals, the case will be back before Judge Maas.

“Someone pretty high up in the company has a vested interest in the outcome of the case,” Van Dyck says, reflecting on the railway’s decision to abandon settlement talks. “It’s certainly brought on an incredible amount of publicity.” 

 

Though the BNSF case has taken over a great deal of her time, Van Dyck has maintained a vibrant practice since leaving Schwebel in 2007. Not only does she still work with her former colleagues at Schwebel, she partners with plaintiff’s attorneys across the profession. “I can’t do or fund a railroad case by myself, so I affiliate with other small firms where we split fees, expenses and responsibilities. I get to work with a variety of different people.”

For the most part, she operates on contingency. “I’ve had my cash flow moments—2009 was pretty grim,” she says. “I’ve had my moments with 600 things to do and no one to delegate to. And I used to be able to walk down the hall and get advice.” She humbly describes her firm as “an experiment in progress.”

Back in the office, she’s currently working on two other railroad cases—one is a death and the other, a brain injury—and another personal injury case involving a car that drove through a house. She’s also handling some appeals. Every day, she sees tragedy through her clients’ eyes. “I feel connected to my clients,” she says. “I meet them all in person. At a bigger firm, you were two steps removed.”

No matter how the courts decide for BNSF, Van Dyck knows that her clients will continue on, as they have been doing for eight years. “The most amazing thing about litigation for all of us has been that these families are a unit,” she says. “They are steel. They hang together. I’ve never seen anything like it. Adversity does things to people—sometimes it tears people apart; sometimes it brings people together.”

Photo by: Larry Marcus

Photo by: Larry Marcus

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