Super Lawyers - Minnesota 2011

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.”

A firm with Certified
Trial Specialists and
attorneys listed in

Super Lawyers® and

Rising Stars

Sieben Polk has prosecuted thousands of
mesothelioma and other asbestos-related
claims since 1978, representing clients
throughout Minnesota and surrounding
states. Most Sieben Polk attorneys and
support staff have more than twenty years
experience representing asbestos victims.