WILMINGTON, Del. (Legal Newsline) - A Delaware court awarded costs of litigation to Burlington Northern Railway after the company won a lawsuit over bladder cancer, rejecting language from prior decisions suggesting defendants should walk away without seeking money from the losing side.
In a brief decision released Sept. 11, Delaware Superior Court Judge Charles Butler noted that plaintiff Keith A. Wilant sued the railway after seeing a television advertisement seeking railroad workers for lawsuits over bladder cancer. Wilant’s expert witness failed to get over the bar of a Daubert inquiry into scientific validity, however, ending the case.
The plaintiffs cited previous cases where plaintiffs lost but weren’t required to pay the other side’s costs. Judge Butler threw in a memorable line from a 1995 decision by the late Judge William Quillen in which the judge said “sometimes it is important to win with grace.” (“Judge Quillen liked the line so much he quoted himself” in a 1999 decision, Judge Butler observed in a footnote.)
“BNSF has undeniably `won’ the litigation,” the judge wrote. “Does its motion for costs lack `grace’? Perhaps. Perhaps not. That is a problem with using `grace’ as a legal standard.”
The plaintiff sued after seeing a solicitation on TV, the judge noted. If his case was provable, damages could have been large. “But it as true in big case litigation as it is in baseball,” the judge continued. “You have to hit the fastball to play in the big leagues.”
Costs of $3,013.74 awarded to the defendant.