- Associated Press - Wednesday, June 1, 2016

HELENA, Mont. (AP) - Injured railroad workers may file lawsuits against their employers in Montana, even if they weren’t hurt here and they are not residents of the state, the Montana Supreme Court ruled.

Congress granted railroad workers special protections nearly a century ago under the Federal Employers’ Liability Act, the justices said in a 6-1 ruling on Tuesday. That law allows injured workers to sue BNSF Railway wherever the Texas company does business, Justice James Shea wrote in the majority opinion.

“If Montana residents may sue BNSF in a Montana state court for injuries that occur outside of Montana, so may residents of other states,” Shea wrote.

Robert Nelson and the family of Brent Tyrell sued BNSF separately in Billings in 2014. Nelson was injured in Washington state in 2008 when he injured his knee. Tyrrell’s lawsuit alleges his exposure to carcinogenic chemicals while working in South Dakota, Minnesota and Iowa that caused him to develop cancer and die.

BNSF officials said filing such lawsuits in Montana amounts to forum shopping - seeking a court that is likely to look favorably on the plaintiffs’ claims. Spokesman Ross Lane declined to say whether BNSF plans to appeal to the U.S. Supreme Court, but said the company is evaluating its options.

“We continue to believe that the practice of filing and prosecuting out of state lawsuits that have nothing to do with Montana is inconsistent with both practice in other states and with precedent established by the U.S. Supreme Court,” Lane said in an email.

An attorney for the company argued in December that a 2014 U.S. Supreme Court ruled it is a violation of due process to file such lawsuits where the corporation is not headquartered or conducts the bulk of its business

In that case, the U.S. Supreme Court rejected a lawsuit filed in California by plaintiffs from Argentina against the German corporation Daimler. The plaintiffs alleged the car maker was complicit in the kidnapping and torture of auto workers in Argentina, and filed the case in California because Mercedes Benz, a Daimler company, does business in the state.

The majority opinion rejected the idea that the Daimler decision applies to the BNSF case. Daimler is not a railroad company, and the Federal Employers’ Liability Act, referred to as FELA by the court, was written specifically to allow injured railway workers to file such out-of-state lawsuits, as long as the rail company operates in the state where the claims are filed.

Justice Laurie McKinnon dissented with the majority opinion, saying the Daimler case should apply to BNSF, too, regardless of the law, and that the majority’s ruling takes away BNSF’s constitutional right to due process.

“A defendant does not forfeit liberty or have a diminished liberty interest merely because the plaintiff brings a FELA action,” McKinnon wrote. “Nor does a defendant forfeit constitutional protection by operating a railroad.”

BNSF operates in 28 states, and about 10 percent of BNSF’s revenues come from Montana. Its more than 2,000 Montana workers represent less than 5 percent of the company’s total workforce and the 2,000 miles of track in the state is 6 percent of BNSF’s total mileage.

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