‘It looks like the railroad is asking for you to say thank you’

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Somehow Cole maintained consciousness, calling his co-workers for help before undoing his belt to tie a tourniquet around one of his legs. As the engineer dialed 911, the conductor ran to Cole’s side and used his own belt to tie a second tourniquet around the other leg. A crew of firefighters arrived within minutes. They loaded him onto a medical helicopter that airlifted Cole to an emergency room in St. Louis, just across the nearby Missouri border.

Cole awoke in the middle of the night alone in a hospital room; it was April 2020, just a month after the surging coronavirus was declared a pandemic. Neither his wife nor his daughter were allowed to visit, and so he was alone when a trauma nurse informed him that he lost both of his legs. Cole, a burly man who once stood 6 feet tall, knew his railroading career was over, as were his hopes of providing enough so that his wife — who’d recently been diagnosed with multiple sclerosis — could stay at home with their 12-year-old daughter.

The next morning, Cole called his manager to tell him that he was alive. Afterward, the manager wrote an email to other members of the company summarizing Cole’s description of the accident: “Upon mounting equipment he stated there was a derail sign that struck him off of the engine and he fell.”

But within days, according to company and court records, Cole’s managers and higher-ups at the rail company began to shape a new narrative — one that erased the role of the sign, leaving Cole solely at fault, entitled to nothing under the railroad industry’s version of workers’ compensation for his devastating injuries.

“The culture of management is that we are going to cover ourselves and cover the railroad and make sure that it doesn’t look bad in the public eye,” Cole said. “And if we got to bury one of our employees, or somebody else, we’re going to do that.”

In many ways, the fight centered on the metal derail sign. Within 48 hours of the accident, before state regulators had a chance to examine it, the sign was gone.

Railroad companies have a long history of hiding injuries, as ProPublica recently reported. But in some catastrophes like Cole’s, in which the injuries are so grievous they can’t be denied, ProPublica found that companies moved almost immediately to cover up their culpability.

Some attempts to deny the causes of accidents obscured safety hazards, such as faulty latches, which could have put more workers at risk, ProPublica found. Others took actions that made worker injuries far worse.

In 2014, after two BNSF workers in Minneapolis breathed in a cloud of highly toxic chemicals that may have vented from passing rail cars, managers claimed that the men were exposed to a far less dangerous substance. One of the workers, Scott Kowalewski, suffered severe, permanent neurological damage. The other later died by suicide, a tragedy that was impossible to incontrovertibly link to the accident.

When Kowalewski sued, BNSF claimed that he didn’t say he was exposed to the more toxic material until three-and-a-half years after the incident and maintained throughout the case that his deteriorating health had nothing to do with the exposure. But a jury sided with Kowalewski in 2018 and awarded him $15.3 million. And a judge concluded that the railroad’s “misrepresentation prevented Kowalewski from receiving appropriate medical treatment that might have remediated his injury.” The judge ordered BNSF to pay an additional $5.8 million penalty for its misconduct, writing that the extent of it was “vast, and spans from the outset of its initial sham investigation.”

Cole’s case wasn’t even the first involving a railroad sign. Bradley Anderson was riding on the side ladder of a rail car in 2019 when he struck his head on a milepost sign that was too close to the tracks. He was diagnosed with a traumatic brain injury. Officials from his company, BNSF, pulled the sign out of the ground before its position was adequately documented.

This July, the federal judge on Anderson’s case excoriated the company. “Despite receiving multiple court admonitions for destroying and concealing evidence, BNSF engaged in the same type of misconduct here,” U.S. District Judge Rebecca Goodgame Ebinger wrote in an order, declaring that the company was responsible for Anderson’s injury, and approved sanctions for the damage caused by the “bad faith” removal of the sign. The case eventually settled.

She also said she was forwarding the case to the Iowa Supreme Court Attorney Disciplinary Board and the Illinois Attorney Registration and Disciplinary Commission, “in the event either body should see fit to initiate an investigation into an apparent abuse of legal procedure.”

Neither of those bodies would disclose to ProPublica whether they had received the judge’s referral or whether they planned to act on the information.

In civil litigation, it falls on workers’ attorneys to prove companies tampered with evidence. If a judge agrees, they can sanction the companies for millions of dollars or, in an extreme case, even enter a default judgment for the worker. (The judges in Kowalewski’s and Anderson’s cases entered such default judgments against BNSF.) But outside of those repercussions, there is little else in terms of punishment for companies that repeat the behavior. “It comes out in an individual case,” said Daniel Gourash, editor of the American Bar Association book “Spoliation of Evidence.” “The sanction that would be given would not be because of a habitual spoliation activity or conduct or behavior.”

BNSF did not comment on either case but said in a statement that “the safety of our employees always has been and always will be a priority. We believe that’s reflected in our safety culture and record over the last decade, which produced the lowest number of injuries in our railroad’s history.”

In a statement to ProPublica on the Cole case, a Canadian Pacific Kansas City spokesperson denied that any of its actions were an attempt to avoid culpability. (This year, Kansas City Southern Railway Company merged with Canadian Pacific Railway.)

“Through a thorough investigation that lasted several months, Kansas City Southern sought to determine how the incident occurred so appropriate action could be taken to prevent such an incident from happening again,” the company said.

Within hours of Cole’s accident, a bevy of Kansas City Southern supervisors from across the region converged at the scene. They took pictures. They stayed until dark fell.

Early the next morning, Cole called two of his managers from his hospital bed: assistant trainmaster Michael Cline and Chris Knox, general manager of the KCS North Division. Cline sent two emails to several managers at the company: “He stated there was a derail sign that struck him off of the engine and he fell between the engine and cars where the incident took place with the dismemberment of his legs.” Cline told ProPublica he would check with his employer before commenting but then did not respond further. Knox didn’t respond to calls or text messages.

A short time later, four inspectors from the Federal Railroad Administration gathered at the scene along with KCS managers. An FRA operating practices inspector named Larry Piper wrote up his initial findings about what happened to Cole.

“His body struck a derail sign on a metal post adjacent to the pass track, knocking him off the locomotive and to the ground,” the report stated, adding that railroad and FRA officials watched video footage captured on a nearby security camera. “Even though the quality was not perfect, it did substantiate what the employee was saying,” the report said.

Piper communicated those findings to a member of the Illinois Commerce Commission, the agency that performs inspections and enforces state regulations on the railroad, including sign placement.

“It appeared to him that the derail post sign was too close to the rail,” recalled Dennis Mogan, the ICC railroad safety specialist, in a deposition. “The FRA didn’t have any regulations on that, and he thought that the state did and that we should take a look.”

But before that could happen, KCS roadmaster Jeffrey Brickey removed the sign and pulled its pole from the ground entirely. He also covered the hole left behind.

“We’re not supposed to leave any divots or anything like that for trainmen to walk on, so yeah, I cleaned it up,” he testified. Brickey did not respond to ProPublica’s requests for comment.

By the time a railroad safety specialist from the ICC named Troy Fredericks arrived about a week later, the sign was long gone. When Fredericks asked Brickey about it, he said Brickey “couldn’t discuss” the sign and “would not talk about” the injury incident. The company did not comment on whether it had been forthright with Illinois regulators; the ICC told ProPublica that Brickey was “responsive to ICC Staff’s concern in the days after the incident.” Before Fredericks left the accident scene, he made note of a completely different sign not far away that he said was positioned too close to the railroad tracks and then left.

Around the same time that the sign disappeared from the site, it also began to fade from the railroad company’s narrative of the incident, despite the existence of the FRA’s initial report confirming Cole’s account. Wendell Campbell, an assistant division superintendent who was one of the first to arrive in Godfrey after the accident, wrote on an employee injury form that the sign struck Cole. But in subsequent paperwork, Campbell omitted any mention of the sign: “Employee was trying to board moving equipment.” Campbell declined to comment when reached by ProPublica.

In a deposition, Mary Lyn Villanueva, the KCS employee in charge of submitting information to the FRA, said that before she filed her report, she had several conversations with the company’s claim agents, who investigate accidents and injuries on behalf of the railroad. Villanueva, who had access to both versions of the story Campbell submitted, also omitted any mention of the sign. Through a company spokesperson, she declined to comment to ProPublica.

In its statement, Canadian Pacific Kansas City said it “filled out the FRA-required forms properly, noting the cause of the incident was still under investigation at the time.” The company denied that it misled the FRA, saying the sign was measured and photographed in the presence of agency officials and then removed.

But according to Nelson Wolff, Cole’s attorney, leaving the sign out of subsequent paperwork was not a harmless omission. “It was part of an obvious attempt to change the narrative and to conceal evidence that the sign was the actual cause,” he said.

Less than a week after the accident, managers made another decision: They wanted Cole, who in his 11-year career with the company had never been injured, investigated for rule violations. The company issued him a notice, which Cole initially did not receive — he was still in the hospital, going in and out of surgeries to save what remained of his legs.

Six weeks after the incident, the hospital finally cleared Cole to go home. But there was no home to go to.

The Coles’ previous apartment was on the second floor of a building with no elevator and no way to navigate it in a wheelchair. Instead, Cole checked into an Extended Stay America hotel, where he was finally reunited with his wife, Iris, and his daughter, Lily.

Although grateful to see him in person for the first time in over a month, the meeting was a shock for Iris and Lily — it was the first time they’d seen him without his legs, and his wounds were still fresh. “I gave him the biggest hug, but I looked down at his legs,” recalled Iris, who confessed in court to being squeamish around blood. “He had a wound vac on the right leg, and how I did not pass out, I don’t know.”

The meeting was emotional but brief. Cole’s wife and daughter left to finish putting their belongings into storage. The family continued living separately for months before finding a wheelchair-accessible apartment. In the process, the Coles racked up over $10,000 in hotel room costs.

A little over a week after Cole got out of the hospital, his union representative wheeled him into a small hotel conference room in East St. Louis, Illinois, to hear the railroad’s case against him. They were joined by Brandi Foulk, the engineer, and Brian Loy, the conductor; it was the first time all three had seen one another since Cole was airlifted away.

In front of a presiding officer from Kansas City Southern, Cole’s manager Campbell made the argument: He said Cole attempted to mount a locomotive going faster than 4 miles per hour, or walking speed, without first notifying Foulk by radio, a violation of a KCS rule. A second KCS manager presented data from the train’s black box recorder, which he said showed that the locomotive reached 8 miles per hour at some point before it stopped, though he acknowledged it was possible Cole tried to board at 4 miles per hour.

Though Campbell knew Cole reported being struck by the sign, he made no mention of it. Both Foulk and Loy tried to speak up for Cole, saying they believed it was possible the train was going closer to 4 miles per hour when he made the attempted boarding.

“Chris is one of the safest people I’ve ever worked with,” Foulk said. “Him not saying something to me on the radio just let me know that he felt safe enough to get on equipment going the speed that it was going.”

The hearing took less than an hour and a half. A week later, the railroad determined Cole broke the rule and gave him a 30-day suspension, despite the obvious fact that he would never be able to return to work on the railroad again. Cole, who was still in acute pain at the time of the investigation, did not raise the issue of the sign at the hearing, which he later regretted. At the same time, he said he knew he’d be found at fault regardless. The company did not respond to ProPublica’s questions about the disciplinary proceedings against Cole.

It is a common refrain among rail workers that the companies’ internal investigative hearing process is a “kangaroo court.” Hearings typically run like this: They are presided over by railroad managers, workers are not allowed to have their lawyer represent them and they cannot force the railroad to turn over evidence for their defense. In a case against Norfolk Southern, a railroad manager who served as the presiding officer in about 50 investigative hearings estimated that she found in favor of the employee only once. The hearings are often a precursor to firings, and when Occupational Safety and Health Administration officials have weighed in on subsequent wrongful termination claims, they wrote that hearings were “at best perfunctory” and not “fair and impartial,” and “showed bias.” After employees sue, the rail companies frequently settle with workers they claim to have proven were fully at fault. In other cases, the workers have gone on to huge jury verdict wins.

“If you go to an investigation, you have already been found guilty,” Cole told ProPublica. “My ends were hurting, and I just wanted to get out of there and get it over with.”

Still, he admitted he was surprised that the company was in such a hurry to discipline him.

“That’s when I kind of lost all faith in them,” he said.

In the fall of 2022, when Cole’s civil trial against Kansas City Southern Railway Company began in St. Louis County Circuit Court, a central figure in the case reemerged: the derail sign. Almost as mysteriously as it had disappeared, the sign was back.

According to the lawyers for the railroad, there was a third version of events: They now admitted the sign was placed too close to the tracks on the day of the accident, by about 1 1/2 to 2 feet, in violation of Illinois law. But Cole, they argued, never hit the sign. Therefore, the sign and who had placed it too close to the tracks and where it went after the roadmaster removed it and why it went was all moot. They even used the sign to demonstrate to the jury that it was too “flimsy” to knock a 245-pound man off balance. (Although fighting nerves, Cole was amused at one point when one of the lawyers banged loudly into it. Doesn’t sound flimsy to me, he thought.)

Throughout the two-week trial, the railroad’s legal team presented a more robust version of the same case it had made in Cole’s internal hearing in June 2020: that he boarded a moving train when it was going too fast, in violation of company rules and general safety best practices. They added a roster of three expert witnesses who reconstructed the scene using imperfect videos — one from locomotive cameras that missed the fall and one from a nearby warehouse that was grainy and far away; the company’s experts enhanced them with 3D computer modeling to show Cole slipped on his own. The true culprit, they argued, was rule violations. “If you follow the rules, you don’t get hurt,” the lawyer told the jury.

Cole’s attorney, Wolff, countered with his own expert, who argued the same videos plausibly showed Cole hitting something before falling. Wolff also argued that there was no safe speed for getting onto and off of moving trains and that companies like KCS that had once prohibited the activity were now walking the policies back to keep freight moving faster. Brandon Ogden, an expert witness and former BNSF manager, blamed this on the industry’s increasing reliance on precision scheduled railroading, a business philosophy that prioritizes maximum efficiency. “It’s all about moving faster, increasing production and boosting profits,” Ogden testified. “It negatively affects safety of railroad employees.”

Cole’s daughter, Lily, and wife, Iris, testified about the difference the accident made in their lives. His daughter, by then 15, called her dad a “knight in shining armor” who could no longer go swimming or ice skating with her. His wife described how the family was adapting to Cole’s new physical limitations in some ways, while others remained a struggle. “He is quick to get upset over things. I mean, really, really quick,” she said. “We have to tell Chris, don’t do that. Please don’t do that.”

When Cole was called to the stand, he told the jury the story: how he’d felt the sign strike his shoulder before his fall, about his long, ongoing recovery, sometimes feeling “worthless” now that he could not take care of his family. At one point, he removed his prosthetics for the jury, demonstrating the system of liners, pushpins, buckles and Velcro straps.

On cross-examination, the railroad’s lawyer grilled Cole on his understanding of the safety rules about boarding moving trains. He played the videos of the incident again, urging Cole to admit that his memory of hitting the sign was faulty or that his own poor decisions caused the fall. Cole stuck to his version of events.

“While we all do recognize you have suffered a very, very significant injury, you would agree with me that it has allowed you to develop stronger relationships with your wife and daughter?” the lawyer asked Cole at one point. “While you loved your job at the railroad, that took you away from your family, yes?”

On redirect, Wolff turned the line of questioning around.

“It looks like the railroad is asking for you to say thank you,” he said to Cole. “Would you rather be out there working on the railroad, providing for your family like you had been doing for decades … being able to walk on your own two feet?”

“That is correct,” Cole responded. “Yes.”

Wolff left the jury with a succinct explanation for the sign’s appearance, disappearance and reappearance in the railroad company’s narrative: “cover-up.” The railroad vehemently denied it.

After the long, contentious trial, and just under five hours of deliberation, the jury returned with its verdict, agreeing that Kansas City Southern had violated Illinois sign clearance law. It determined that Cole was 21% at fault for his accident, while the railroad company was responsible for 79%. The jury awarded Cole $12 million.

“A big weight lifted off my shoulders,” Cole said of the moment he heard the verdict. “Someday, we’re going to be fine.”

After the verdict, Kansas City Railway filed an appeal, which is ongoing. Company officials reiterated to ProPublica that they still do not believe Cole hit the sign before he fell. Read the full Canadian Pacific Kansas City statement here.

While he awaits the outcome, Cole works part-time during baseball season with Iris, greeting customers at the St. Louis Cardinals team store near the downtown stadium. Cole enjoys it, so long as he can steer clear of the rowdy baseball crowds that jostle his wheelchair. He cringes when fans thank him for his service, replying simply that he got hurt at work.

In the short term, he focuses on becoming more mobile on his prosthetics. Lily is 16 years old now, and Cole figures he still has time to learn to walk before he escorts her down the aisle at her wedding.

Though he said he doesn’t dwell much on the former railroad colleagues who tried to discredit him, he wonders why regulatory agencies don’t do more to discipline managers and companies.

“Instead of maybe a fine, why don’t you put somebody in jail?” he asked. “Maybe they’ll learn better that way and stuff will stop happening like this.”

Both the ICC and the FRA decided Cole’s accident warranted no further investigation. Neither agency issued any kind of penalty or fine.

A spokesperson for the ICC said it has authority to issue fines only after putting the railroad on notice of a violation and then holding a hearing, and that because the company “corrected the violation” — by removing the sign — the commission did not pursue the matter.

Following its practice at the time, the FRA never finalized its initial report concluding that Cole hit the sign and didn’t share it with anyone until ProPublica asked questions about the accident this month. It’s unclear how the report would have changed any element of the legal fight, but Cole finds it disappointing that the regulator didn’t take a more aggressive role in holding the railroad accountable.

“That is what the FRA is supposed to do, it is supposed to monitor and to sanction railroads when they do wrong,” he said. “You go out and you say, ‘Hey, you know, this sign was definitely way too close to the track and you had an employee got hurt, but we’re just going to tuck it in a drawer somewhere, we’re just going to forget about it.’ … That’s what’s disappointing.”

The regulators, he went on, had nothing to lose, while Cole, in his words, “lost everything, pretty much.”

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