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IMPLICATIONS OF A CORONER’S INQUEST IN RAILROAD CASES BY KENNETH R. PEEL – FRASER MILNER CASGRAIN (TORONTO, ONTARIO) Whistler, B.C. - July 26, 2000 Every province and state in North America has some type of modified coroner’s system. The prime objectives of such systems have been to establish a cause of death and to also determine by what means a person came to his or her death. In some jurisdictions there is additionally an express objective of seeking out recommendations for the prevention of a similar death, for the improvement of safety, and for the implementation of better methods and practices. While a true checkerboard of approaches and systems exists across the United States, in Canada a mixture of coroner’s systems and medical examiners systems has developed in most provinces and territories according to a model using medical, legal and lay investigators. The important point about this model is that it includes the potential for public coroner’s inquests where such recommendations for change, review or improvement are expected, debated, given media play, and followed up. If ignored, such recommendations can impair a client’s position at law. There is therefore a significant role for a railroad’s lawyers in counseling the client, and being an advocate of the client’s interests, in such a system. In about 38 of the states of the United States, there are medical examiner systems of various types, most commonly (18 states) with a state medical examiner office, no county medical examiner systems and no coroner systems. The second most common arrangement in the States (10 states) involves no state medical examiner but a patchwork of some counties with medical examiner systems and some counties with coroner systems. In most medical examiner systems there is a pathologist appointed to be in charge (who often has special training in medicolegal death investigations), 1 and a post- mortem examination is paramount. The main concern in this type of system seems to be whether foul play is involved, and there is a close relationship with the police investigation. This is not our focus. 1 Hanzlick, R., MD & Combs, D., “Medical Examiner and Coroner Systems-History & Trends”,JAMA, March 1998-Vol.279, No. 11 -2- The remaining states continue their coroner’s systems, typically involving coroners who are elected lay persons who rely on whatever medical personnel are available to assist in investigations and perform forensic autopsies. Problems with such coroner systems are recognized, and the trend over the years has been to move to medical examiner systems. As a 1989 Canadian text on administrative tribunals said of some aspects of the American coroner’s system: “In most areas of the United States, each county has a separate coroner’s or medical examiners’ system. There is often confusion and fragmentation with small budgets and limited service. The coroners may come from all walks of life, including sheriffs, funeral directors, storekeepers, schoolteachers and barbers, and they are often elected. As a result, the investigations in these types of systems may vary widely in both quality and consistency. Often statistics from these areas are virtually useless in showing trends or demonstrating problems.”2 The U.S. Centre for Disease Control and Prevention and the National Center for Environmental Health have, on their website, a useful collection of information regarding death investigation in the United States and Canada, particularly describing the system for each U.S. state and territory and each Canadian province. Additionally they provide contacts for additional information or clarification. The Centre sets out as its goal the continued improvement of the collection and sharing of information generated by these death investigations and to use this information to assist planning health policy. From their site I have appended to this paper a map showing the type of system in each of the states, whether medical examiner, coroner, or a combined system.3 For railroad and other counsel, my focus is to alert you to several issues of law and practice that may be of assistance to you – as a cautionary tale or as a practice note – in your representation of your clients’ interests. In doing so, I will draw upon my experience in a number of inquests and related trial work, and attempt to steer you to some of the (limited) case law available, both U.S. and Canadian. As our legal systems share so many underlying common-law and evidentiary law principles, I trust these observations may be of assistance. 2 “The Roles of Coroner and Counsel in Coroner’s Court” by F.R. Moskoff, Q.C., and J.G. Young, M.D. (“Administrative Tribunals”,1989, Canada Law Book Inc. p. 163 at page 168). 3 http://www.cdc.gov/nceh/mec/medir/1998/manmain.htm -3- The role and nature of the office of Coroner has come down to us from the English common law and from an eight hundred year-old office charged with inquiring into the circumstances of the death of a subject. The first record of an inquest in North America dates from 1635 in Massachusetts. Much has changed by statute and local laws in each jurisdiction. Indeed, the local nature of coroner systems has in the States brought the politics of death investigation systems to a local level, which may introduce personal issues into the decision-making process4. As counsel, can we shape the process? Are we affected? The main points: 1. In those systems where a public inquest may be held, with a power to make recommendations, counsel should be alert to the potential that your client may need to be represented as a party with standing at the inquest, and strategies for handling the distinct nature of such a proceeding will have to be developed by counsel to protect the client against recommendations (and any adverse media commentary) that may result. 2. In some jurisdictions the coroner’s verdicts, and/or the text of inquest recommendations, are admissible into evidence in a subsequent civil trial arising out of the same facts, although authorities also exist for the proposition that such evidence is inadmissible. Admissibility varies from state to state, and accordingly, there should be caution exercised on this point. 3. An inquest recommendation that a client change its practices, procedures, equipment, signage and the like may constitute evidence, in a subsequent case arising out of similar facts, that the railroad or other client knew or reasonably ought to have known that there was some defect or practice or policy deficiency that ought to have been corrected, and their refusal or failure to act on the earlier recommendation may constitute compelling evidence for the plaintiff in that subsequent action. Consideration must be given to dealing with that threat. 4 Hanzlick & Combs, op. cit. at p. 872 -4- 4. The inquest process may be a fruitful area for obtaining information that will support your client’s case, and damage an opponent’s potential case, well before the civil litigation process has proceeded into depositions or other “discovery”. While frowned upon by coroners and by the inquest systems, this form of early access to or “discovery” of the investigation and facts can be of real assistance in the later management of litigation. Let me turn to a few examples of each, and attempt to provide you with some of the related authorities for your reference. 1. STANDING AT AN INQUEST / STRATEGIES AND DILEMMAS In the model of the coroner’s system used in most of the Canadian provinces, as well as in England, a public inquest may be held where a medically-qualified appointed Coroner decides that it will serve the public interest; that there is a need to find out who / how / when / where / by what means the deceased came to his/her death; or that it is desirable for the public to be more fully informed of the circumstances of the death. As well, an inquest may be considered necessary where there is a likelihood that the inquest jury might make useful recommendations directed to the avoidance of death in similar circumstances.5 The American experience is that inquests are also called by coroners and medical examiners, exercising a jurisdiction subject to the varying local legislation. Where such an inquest is then held, standing may be granted to a person who is found to be substantially and directly interested in the inquest. To play a role, you have to establish that your client has substantial or special knowledge of the issues, and a unique perspective, different (for example) from other persons or public interest groups that may be applying for standing. With standing at an inquest, your client would have an opportunity to be represented by counsel, to call and examine witnesses and present arguments and submissions, and to 5 Ontario Coroner’s Act, R.S.O. 1990, c.C.37, section 20 -5- conduct cross-examinations of witnesses at the inquest relevant to the interest of your client as a person withstanding, and admissible. The opportunity posed, therefore, is to shape the evidence that a public inquest jury will hear, and the recommendations they may make. This may be the critical first step in avoiding the implications of adverse inquest jury findings and recommendations. As counsel, you will also have to shape your strategies to reflect the fact that the evidence admissible at an inquest may be substantially different than the more limited scope of evidence properly admissible in a trial proceeding. In the model most commonly encountered in Canada, the coroner is entitled to permit hearsay evidence and lay opinion evidence. Indeed, witnesses to an accident are frequently asked, when they are witnesses in the inquest proceeding, whether they have an opinion as to what recommendations might be made to avoid a similar death occurring in the future. As counsel, therefore, you must be alive to the potential for the admission of evidence with all of its “hearsay” dangers that it is unreliable, difficult to cross-examine upon, or simply misleading or unsound. Again, the presence of counsel on behalf of your railroad client, as a party with standing, can help shape the evidence – and ultimately the findings and recommendations - by testing hearsay assertions, by pointing out their frailty and by calling contrary and more persuasive evidence. Another strategy that has to be kept in mind by counsel at an inquest is that there is usually substantial media interest in the story, and it will be important to adopt a manner and style and line of questioning that neither inflames the jury’s opinion against your client, nor offers an unflattering view of your client or its actions. I caution my witnesses not to speak to the press, and I involve my clients’ public affairs specialists who should be briefed in advance to handle the media and to get my client’s story out. Another and a human aspect of the inquest is the direct involvement with the family of the deceased that you will expect to have as counsel at an inquest. There is an opportunity to express your client’s sympathies and concern, and if appropriate, assistance, which may go some distance towards reducing friction and even the potential -6- for lawsuit where a right of action may exist. This may be achieved even where counsel has been retained, through genuine interaction and gesture. I include in my materials information drawn from an inquest held earlier this year in Sudbury, Ontario in respect of the August 26, 1998 death on a railroad’s right of way of a contractor’s employee, Jean Francois Morin. Fiber optic cable was being installed along the right of way by crews working long hours in extended work cycles, spread out in or alongside equipment for a few miles, protected by a “Rule 42” procedure of track clearance and radio control. The railroad conducted job briefings, as did the contractor, and all personnel were cautioned about clearance requirements. However, the wait for a train’s arrival after being directed to clear men and equipment was at times lengthy. While the railroad’s foreman was told all personnel were clear, and he then had given the go ahead to the freight crew , Mr. Morin moved unseen in the dark from a place of safety to a gas cart’s open seat, close to the rails, and fell asleep. The arrival of the train, signaled by whistle and the sweep of a headlight, startled Mr. Morin, who lurched upright and stumbled into the path of the train. An inquest was called, and my client CN was granted standing. We had the opportunity and challenge of shaping the evidence, through the preparation and later questioning of CN’s witnesses, the pre-inquest discussion with police investigators assisting the Coroner and participation in the disclosure process, and in cross-examining other witnesses, employees of the contractor and a forensic specialist called by the Coroner’s counsel to address the effects of an overdose of over-the-counter medicine on the deceased. We identified the strategic points of concern and fought to secure recommendations that would leave intact the railroad’s rules and policies for work on the right of way by non-CN personnel (a copy of which is attached). As counsel I had a crash course in fiber optic installation, and then worked to ensure that the inquest jury – which uniquely has the opportunity to ask questions of the witnesses – well understood the roles of the persons at the site and the nature of railway operations, including the fact so obvious to us but often little understood by laymen that trains cannot be stopped “on a dime” and must be expected “at any time, on any track, in either -7- direction”. We secured recommendations largely directed at the contractor’s activities and supervision, and one directed to the drug industry, although the jury also made an unwanted “suggestion” of an additional warning or “heads up!” caution from the railroad to personnel on the ground as trains entered the work block after receiving an “OK to proceed through limits” . The job on that point is now to interpret the result to the client and to convincingly reply to the office of the Chief Coroner as to why the suggestion ought not to be universally implemented, as an erosion of the basic clearance rule of “once clear, stay clear”. If you are there, you can better understand the inquest dynamics and results, and respond to them in any later litigation, than if you only get involved post- inquest. This recent inquest also involved meeting with the family of Mr. Morin, expressing the railroad’s condolences, and facilitating through the railroad a visit to the site for observances. Raw emotions can be touched at an inquest, among witnesses and family members alike; the jury, too, is not immune and may also be influenced in their recommendations. Counsel’s job for the railroad is to respectfully and sympathetically handle these aspects as well as to retain a clear-sighted view of the evidence and issues. 2. THE USE OF CORONER’S VERDICTS AND RECOMMENDATIONS AS EVIDENCE IN A SUBSEQUENT CIVIL TRIAL Under some U.S. case authorities, the verdict of the coroner’s jury that investigated the cause of death in not admissible to show such cause; however, there is also some contrary authority holding that such evidence is competent as to the cause of death. The nuance is perhaps to be found in distinguishing “by what means” the deceased came to his death - which can involve a decision whether a death is accidental, a suicide, or as a result of criminal action – , from the more clinical issues of proof of death and medical cause of death: “how” the death occurred. Courts in civil proceedings will tend to exclude the result of the “by what means” inquiry, while they may admit evidence from an inquest’s determination of “how” an individual has come to his or her death. -8- In Memphis & C.R. Co. v. Womack6, a case involving an action against a railroad company for negligently killing a pedestrian, the court held that the coroner’s verdict that the deceased had been accidentally run over was inadmissible. In Johnston v. Sundberry7 a case involving an action for wrongful death on the basis of negligence, a coroner’s inquest was offered into evidence but its use was restricted to the proof of death only and not to prove the cause of death. The court held that in such an action, a coroner’s inquest is inadmissible because the resulting death is one of the issues to be decided in the case. “The negligence and fault of the adverse party cannot be established against him, over his objection, by declarations of fact in a coroner’s inquest. In a suit for damages against a party, based on an alleged negligence resulting in death, the recital in a death certificate in coroner’s inquest, as to the cause of death, is as to the defendant hearsay evidence. … the right and privilege of cross-examination must have existed in some form, otherwise, if objected to, is not admissible.”8 However, in Stollery v Cicero & P.St. Ry. Co.,9 a case involving an action for death alleged to have been caused by negligence, the prior verdict of the coroner’s jury stating how the deceased died was admissible in evidence. The court relied on reasoning in United States Life Insurance Co. v. Vocke, 22 N.E. 467, which held that the inquest verdict was properly admitted. Caution is warranted in considering these authorities. Some of the case law considers that a coroner’s verdict and the related inquest are not judicial proceedings. As a result, there is some argument that public policy requires exclusion. This was the conclusion in an early Colorado insurance case involving a dispute about proof of suicide10. 6 4 So. 618 (Ala. Sup. Ct.) 7 150 So. 299 (La 1st Cir. 1933) 8 Ibid at 302 9 90 N.E. 709 (Ill. Sup. Ct. 1910) 10 Germania Life Insurance Co. v. Ross – Lewin, et al, 51 P.488 (Colo. Sup. Ct. 1897) -9- In the case of Groeschner v. John Gund Brewing Company11, which involved an action for wrongful death, the defendant attempted to introduce the coroner’s verdict into evidence to show that he was not negligent. However, the evidence was held inadmissible on the basis that: “… the question of the respective negligence of the deceased and the driver of the truck was not a legitimate subject of inquiry on the part of the coroner’s jury any further than to ascertain whether the driver of the truck was such as to constitute manslaughter. … the issues involved here were entirely foreign to the subject before the coroner’s jury, and its verdict was clearly immaterial.”12 This view of the matter finds support in most of the provincial statues related to Canadian coroner’s systems, where the coroner’s jury is expressly prevented from making a finding of fault. The jury is by statute expressly barred from making any finding of legal responsibility or expressing any conclusion of law on such a matter, although of course their finding on the statutory questions of “how” and “by what means” an individual came to his death, and the recommendations they make for preventing a similar death, can provide a real indication of the direction a civil court may be expected to go when presented with similar evidence. However, there are cases where the coroner’s verdict has been held to be admissible in a subsequent trial, at least as prima facia evidence of the pathologist’s and toxicologist’s findings. Representative is the case of Heitz v. Hogan13, where the trial court admitted into evidence a physician’s report to the coroner in an action for wrongful death based on negligence. The court held that: “In any civil or criminal action, the records of the coroner’s medical or laboratory examiner summarizing and detailing the performance of his or her official duties in performing medical examinations upon deceased persons or autopsies, or both, and kept in the ordinary course of business of the coroner’s office, duly certified by the county coroner or chief supervisory coroner’s pathologist or medical 11 181 NW 212 (Wis. Sup,Ct. 1921) 12 Ibid at 214 - 10 - examiner, shall be received as competent evidence in any court of this state, to the extent permitted by this Section. These reports, specifically including but not limited to the pathologist’s protocol, autopsy reports and toxicological reports, shall be public documents and thereby maybe admissible as prima facie evidence of the facts, findings, opinions, diagnosis and conditions stated therein.” 3. Implications for a subsequent case of not implementing inquest recommendations: As I have reminded you, the inquest process often is focused on the making of recommendations intended to prevent a similar death from occurring. The recommendations may appear unsound, and if they arise out of opinions offered by lay witnesses at the inquest or out of evidence that has been heard despite what may be its hearsay nature, the client must still give serious consideration to the recommendation. In Ontario, my jurisdiction, the Chief Coroner’s office for the province sends out copies to various affected and interested parties as well as regulators, and parties are expected to write back with implementation plans or an explanation why the recommendation will not be implemented. This exchange of correspondence, and the inquest recommendations themselves, are admissible in evidence in a subsequent action, arising out of similar facts but with a new claimant, where the claimant wants to prove to the trier of fact that the railroad or other client knew or ought to have known of the defective practice, equipment or worksite precisely because they had been urged to deal with the alleged deficiency in the inquest arising out of the prior case. Precisely this result arose in a jury case14 between CN and the family of a deceased young girl at a protected level crossing near Toronto, equipped with standard crossing lights, gates, crossbucks and pedestrian bell, as well as a form of “maze” to guide pedestrians and to force cyclists to dismount. The girl – despite a shouted warning from her young companion – had set off towards the tracks into the path of an oncoming train right after the passage of a train in the opposite direction on the second track. The plaintiff’s case focused on the presence of a signal bungalow that was 13 480 N.E. 2d 185(Ill. App. 4th Dist.1985) - 11 - adjacent to the crossing and which was said to have blocked the view of an oncoming train. We disagreed and called evidence both to show that the view was sufficiently clear to see the train, had the girl looked, and to show that the companion had in fact an equal opportunity to look for a train and had in fact seen the oncoming train the deceased had not looked for. However, over our objections, the trial judge permitted the jury to hear evidence that the railway had suffered a similar accident some years before, involving a similar "meet" of trains, and that an inquest jury on that earlier occasion had recommended that the railway move the signal bungalow to improve sightlines at the crossing. The railway knew of the recommendation, but did not act, as their engineering staff felt it was unnecessary and would complicate their cabling requirements. Plaintiff’s counsel now had a theory, that the big railroad had “ignored” the recommendation, despite the modest cost of implementing it, and must be held responsible for the later death as one caused or contributed to by the “neglect” to implement better sightlines. We argued that the admission of such evidence, of very modest probative value, would unfairly prejudice the railroad, and that as such prejudice outweighed the usefulness of the evidence, it should be excluded. Madame Justice Arbour, now a member of Canada’s nine-judge Supreme Court, felt that the potential prejudice to the defendant CN could be adequately balanced by her instruction and caution to the jury that the evidence should be considered with due care about the differences in the cases and the need to assess it against the other evidence on sightlines. In the result, which allocated 40% fault to CN but 60% contributory negligence to the child, the jury clearly were influenced by the railroad’s failure to improve the sightlines as recommended by the earlier inquest jury. It is a chastening reminder of the potential power of inquest recommendations, and of the costs of ignoring them. 4. Use an inquest process to gain early “discovery” of the other side’s case Finally, the inquest process customarily involves the summoning of witnesses, the exploration of the facts and circumstances of the death of the individual (whether worker, contractor, or third party), and the potential of expert evidence from regulators and other 14 Hamilton v. CN and GO Transit, Ontario Supreme Court, confirmed on other grounds, Court of Appeal - 12 - forensic investigators. Counsel can use this opportunity, if they are granted standing, to ask questions, explore theories, assess the strength of witnesses, learn the facts, and explore some of the documents or records. Now, I should be clear that the inquests with which I am familiar are ones which cannot lay blame or assess liability. For example, the Ontario Coroners Act expressly states that “The jury shall not make any finding of legal responsibility or express any conclusion of law on any matter [referred to in the sections requiring a finding of who the deceased was, and how/when/where/and by what means the deceased came to his death]”.15 The coroners would add: nor should the inquest be strictly a means of discovery: “Coroners recognize that the family may well wish to use the inquest as a means of discovery, but this must be done within the rules and purposes of an inquest. Once the facts of a death are clearly established, the focus must shift to using these facts to help prevent similar deaths in future, not to establishing liability. Clearly, in many cases determining liability is a background issue, but the coroner must not allow the proceeding to be stalled in this pursuit.”16 As an example from my own experience, again, I refer to an inquest into the death of a young trespasser who came on to the railroad’s right of way in the Ottawa area and was struck by a VIA Rail train, which had no opportunity to see him before he dashed out and which had not sounded its whistle in its approach to a nearby crossing due to a regulatory Order approving a municipal by-law prohibiting whistling. At the inquest I was able to learn of changes the municipality had made to fencing designed in conjunction with a pedestrian underpass installed at the same location, changes which seriously compromised the security of the right of way. This change was made without notice to the railroad (who had previously been consulted and signed off on all other aspects of the project), but was made to convenience public access to an adjoining strip of public lands paralleling the railroad right of way. The fencing was shown to fall short of the municipality’s own engineering recommendations. Before the accident the municipality 15 Ontario Coroners Act , RSO 1990, c.C.37, sections 31(2) and 20 16 Moskoff & Young, op. cit., p. 176 - 13 - knew the fencing wasn’t doing the job of deterring trespassers, but they simply tried to push the regulator and the railroad to deal with the problem, and washed their hands of the issue. The case then began with the family’s lawsuit against the railroad and the municipality. While the evidence of the municipality’s representative at the inquest was not admissible per se at the subsequent trial, the ordinary deposition and discovery process was certainly made more focused and searching and effective due to the earlier knowledge learned. At trial the information that was first discovered in the inquest was damaging to the municipality’s case and in September, 1998 judgment was obtained against it for a share of the loss. This was confirmed this June in the Ontario Court of Appeal.17 Counsel may therefore find the opportunity of early “discovery” of a matter at a public inquest to be helpful, at the least, in the management of subsequent litigation and the development of winning strategies. In conclusion, then I trust that these 4 points about coroner’s inquests, the risks, challenges and opportunities for railroad counsel, may be of assistance. (I would welcome your sharing of any experiences with inquests and with trial issues arising out of inquests.) Thank you! KENNETH R. PEEL18 17 Burns v. City of Nepean and Canadian National Railway Company 18 with thanks to student Paola Calce and librarian Ian Colvin of Fraser Milner Casgrain
"IMPLICATIONS OF A CORONERS INQUEST IN RAILROAD CASES"