PHILADELPHIA – Counsel for the engineer of an Amtrak train that crashed and derailed in Philadelphia in 2015, who withdrew his client’s suit against the transit company in the interest of seeking relief in a state court and preventing duplicative litigation, is now facing a pursuit from Amtrak for over $322,000 in legal fees.
Brandon Bostian of Georgia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 24 versus National Railroad Passenger Corporation (Amtrak), of Washington, D.C.
“Bostian was an employee of defendant Amtrak and the locomotive engineer of Amtrak Train 188 on May 12, 2015, when that Train was involved in a crash. Following the Train crash, multiple personal injury lawsuits were brought against Amtrak and Bostian. Amtrak provided counsel to Bostian pursuant to the indemnity clause within its bylaws. Multiple monetary releases were executed in this regard. Amtrak is governed by corporate bylaws, which at Article IX, 9.01, (e) & (k) deal with employee indemnification. The bylaws of Amtrak prescribe an indemnification policy be promulgated to implement the indemnification clause. Amtrak adopted its policy on indemnification dated July 25, 2012,” the suit stated.
“Pursuant to Bostian’s request, and pursuant to Amtrak bylaws and policies, Amtrak indemnified Bostian in the civil matters, prior to any criminal proceedings, as documented in the memo dated June 25, 2015. At the time Amtrak gave indemnity to Bostian, Amtrak was fully aware of the facts underlying the crash of Train 188. The facts in both the civil and criminal matters are identical. The crash of Train 188 was also the subject of ongoing investigations conducted by multiple law enforcement agencies. Ultimately, Bostian was required to retain personal counsel. In 2017, Bostian was charged criminally by the Attorney General of Pennsylvania for his conduct, which was alleged to have caused the crash of Train 188.”
The suit continued that the criminal prosecution involved multiple preliminary hearings, appeals and ultimately, a trial held in Philadelphia last year. In that trial, Bostian was found not guilty on all charges.
“Bostian prepaid for his extensive criminal defense. After the verdict in the criminal trial, Bostian again requested indemnification. Amtrak has not responded to the request of Bostian for indemnification. In January 2017, Bostian commenced an action against Amtrak in the Philadelphia County Court of Common Pleas, Pennsylvania at January Term, 2017, No. 3489, seeking damages for personal injuries. In the action in Philadelphia at January Term, 2017, No. 3489, Amtrak has filed a counterclaim seeking damages from Bostian,” the suit said.
“Bostian seeks a declaration that Amtrak is required to indemnify Bostian in full, for all liabilities, attorney’s fees and/or related costs and expenses he has paid or will pay in connection with the May 12, 2015, crash of Amtrak Train 188 in any and all related proceeding and an award of damages consistent with such declarations. Bostian has incurred more than $400,000 in defending the criminal action brought against him by the Attorney General of Pennsylvania in Commonwealth of Pennsylvania v. Bostian. Bostian was found not guilty on all counts, in the criminal matter brought against him by the Attorney General in Commonwealth of Pennsylvania v. Bostian.”
The suit then quoted Amtrak’s policy as to indemnification, which states it is the company’s objective to “identify and advance expenses to any such employee or agent acting within the scope of their duties to Amtrak with respect to any liabilities or losses, including expenses, judgments in amounts paid in settlement, incurred by such person or on his or her behalf in any proceeding by reason of the fact that such person was or is an employee or agent, provided that the employee or agent acted in good faith and in a manner the person reasonably believed to be in (or not opposed to) the best interest of Amtrak and, in the case of a criminal proceeding, must not have had reasonable cause to believe that his or her conduct was unlawful.”
Per their corporate policy, Amtrak decided to indemnify and defend Bostian in several civil matters associated with the accident.
“Amtrak’s decision to defend you is based on a presumption that you acted within the scope of your duties to the corporation, in good faith and in a manner you reasonably believed to be in (or not opposed to) the best interest of the corporation. If at any time Amtrak determines that you failed to act in this matter, as set forth in Article IX of Amtrak’s bylaws, council assigned to defend you will, as appropriate, withdraw their appearance on your behalf, or will petition the court to withdraw their appearance; it will be your obligation to locate and retain counsel to defend you; and you will be required to repay any attorney’s fees advanced or reimbursed by Amtrak,” the suit stated.
“The findings made by Amtrak in their indemnification memo, were required by the bylaws, for the indemnification of Bostian in civil matters. The findings of Amtrak establish that Bostian: a) Acted within the scope of his duties to the corporation, b) In good faith and c) In a manner he reasonably believed himself to be in the best interest of the corporation. Amtrak has never determined that Bostian had failed to act in the manner set forth in its findings. Amtrak never sought reimbursement of attorney’s fees associated with the indemnification.”
On July 17, Amtrak answered the complaint – though it admitted that several lawsuits were brought against Amtrak and Bostian for personal injuries following the derailment of Amtrak Train 188, and that Amtrak provided defense counsel and monetary indemnifications with respect to those civil lawsuits pursuant to company bylaws, it denied the remaining allegations.
Amtrak further admitted that after the verdict in the criminal trial against Bostian in 2022, he informed it for the first time that he “intended to make a request for indemnification for defense costs and expenses for his criminal trial.”
It also presented six affirmative defenses on its own behalf.
“As plaintiff admits in the complaint, plaintiff did not make any written request or notice to defendant regarding indemnification for his criminal defense related to the May 12, 2015 incident until after the verdict of his criminal trial in 2022 – approximately five years after he was charged – and he did not attach any related documents to his belated request or notice. Plaintiff’s request or notice is therefore untimely and plaintiff is not entitled to indemnification for any criminal proceedings related to the May 12, 2015 incident. In addition, the complaint does not allege any request or notice – and no such request or notice exists – by plaintiff to defendant pursuant to Amtrak’s bylaws and policy on indemnification for indemnification for other proceedings, including (1) Agency investigations; and (2) Civil proceedings other than those filed against plaintiff for personal injuries arising from the May 12, 2015 incident. Plaintiff is therefore not entitled to indemnification for any other proceedings requested in the complaint,” per the defenses.
“Furthermore, had plaintiff properly and timely made the required request or notice – which he failed to do – defendant would have had rights it could have exercised under Section 4.2.6 of Amtrak’s policy on indemnification. Plaintiff’s failure to do so has irreparably prejudiced defendant’s rights under Amtrak’s bylaws and policy on indemnification. Defendant’s first affirmative defense does not waive any argument that even if plaintiff properly and timely made the required request or notice – which he did not – plaintiff is not entitled to any further indemnification for proceedings related to the May 12, 2015 incident or any other proceedings under Amtrak’s bylaws and policy on indemnification for other reasons.”
Bostian motioned to voluntarily dismiss his own complaint without prejudice, on Sept. 21.
“In 2017, Mr. Bostian filed a Federal Employers Liability Act (FELA) claim against Amtrak stemming from the same May 12, 2015, derail at the Frankford Junction, in the Court of Common Pleas in Philadelphia. Mr. Bostian filed the above action seeking application of defendant’s bylaws regarding indemnification for costs incurred from his criminal defense. The FELA claim provides for consequential damages to a victorious plaintiff. Part of Mr. Bostian’s, FELA consequential damages include the costs of his criminal defense. Mr. Bostian’s FELA trial is projected to last two weeks and has a date certain of Dec. 14, 2023. This declaratory action will not be resolved until after the FELA action is either settled or a verdict is reached as responses to summary judgment motions are not due until Dec. 29, 2023. Bostian has 10 experts and at least seven witnesses that have made themselves available during the holiday season to testify. They are all attending the trial live,” the dismissal motion stated.
“The costs for the December trial are substantial and many are non-refundable. Defendant in the instant matter has suggested postponing the civil trial to have this matter resolved first. Mr. Bostian believes this to be costly, inefficient and substantially more cumbersome than withdrawing this matter. These two actions seek the same damages through different avenues, and determination in one makes the other moot. Mr. Bostian can ill afford to postpone the FELA matter that has been pending since 2017 and there is no guarantee that the court would agree to a postponement. In the interest of judicial economy, Mr. Bostian wishes to withdraw the instant action. In the interest economy of effort, by all parties, Mr. Bostian wishes to withdraw the instant action. In the interest of duplicative litigation, Mr. Bostian wishes to withdraw the instant action.”
Subsequent to a hearing among all parties and counsel concerned, U.S. District Court for the Eastern District of Pennsylvania Judge John F. Murphy issued a judicial order on Dec. 12, that “in light of the record as it stands”, he was “giving serious consideration to dismissing the case with prejudice.”
“Very briefly, in this case, Mr. Bostian seeks indemnification from Amtrak for a criminal proceeding. Counsel for Mr. Bostian, Robert S. Goggin III, Esq., attached to the complaint a purported 2017 letter requesting indemnification for the criminal proceeding. Mr. Goggin eventually admitted that he created the letter long after 2017. He testified that it is a recreation of an original letter, any evidence of which was lost in a laptop theft. That is troubling enough,” Murphy said.
“But today’s hearing gives reason to believe that Mr. Goggin repeatedly tried to use the recreated letter as though it were the original, and much worse, that there never was an original letter. Mr. Bostian would like this case dismissed without prejudice, so he can pursue similar relief in a state-court FELA litigation. Amtrak makes a compelling argument that dismissal with prejudice would be more appropriate given the circumstances.”
Murphy added that “because of Mr. Goggin’s representation that his plan is to pursue similar relief for Mr. Bostian in the state-court FELA litigation, the parties shall immediately inform the state-court judge in the FELA litigation of today’s hearing and provide that court with the transcript, exhibits and any other relevant information from the record of this case” – and further, that if Amtrak “wishes to seek an award of fees in this case, it shall file an appropriate motion providing the facts and authorities in support of such an award.”
Murphy also ordered that “Goggin’s representations to the court, conduct in this litigation and supposedly-recreated letter is referred to Chief Judge Juan R. Sánchez of this Court, for further proceedings if necessary.”
The following day, Dec. 13, Bostian and his counsel motioned to dismiss his instant federal case with prejudice, in the interest of avoiding duplicative litigation.
UPDATE
Amtrak’s counsel filed a motion on Jan. 11, seeking more than $322,000 in attorney’s fees and costs from the plaintiff’s representation, as a financial sanction for his allegedly-intentional misconduct.
“In short, plaintiff’s counsel admittedly fabricated a key exhibit and relied on it to advance an otherwise meritless claim, did not come clean to the Court or Amtrak until exposed by Amtrak through investigation and briefing, and potentially lied to his client in the process. These actions and abuses of the judicial process far exceed those in cases where courts have granted such an award. A similar award of fees and costs is even more appropriate here. Plaintiff’s counsel did not just fail to investigate basic facts to support plaintiff’s claim or suppress relevant evidence during discovery; he admittedly fabricated a key piece of evidence without which plaintiff’s claim becomes frivolous, and he repeatedly used the fabricated evidence to support plaintiff’s claim,” the motion stated.
“It took an evidentiary hearing for plaintiff’s counsel to admit that he created the letter long after 2017 and repeatedly tried to use it as if it were an original 2017 letter. That admission alone shows that he lied to Amtrak, to the Court and to his own client. But plaintiff’s counsel then compounded those lies by claiming that he had ‘recreated’ a letter originally sent in 2017, when the evidence showed no such letter existed in 2017. None could be found in Amtrak’s files or plaintiff’s counsel’s files, and plaintiff and his father both testified that they never saw a letter in 2017. As the Court noted, it is ‘troubling enough’ that plaintiff’s counsel ‘eventually admitted that he created the letter long after 2017,’ but the hearing ‘gives reason to believe that Mr. Goggin repeatedly tried to use the recreated letter as though it were the original, and much worse that there never was an original letter.”
Amtrak further argued that were it not for plaintiff’s counsel alleged misconduct, it would not have had to expend the requested sum in attorney’s fees and costs.
“Amtrak’s attorneys expended a reasonable number of hours and charged reasonable hourly rates to litigate this entire case to dismissal with prejudice, which would not have been necessary had plaintiff’s counsel not fabricated the letter and relied on it to advance plaintiff’s claim. And the only other compensable costs are court costs. The Court should therefore order plaintiff’s counsel to reimburse Amtrak in the full lodestar amount of $322,148.20, as well as the full amount of $101.40 in court costs,” the motion continued.
The plaintiff is represented by Robert S. Goggin of Keller & Goggin, in Philadelphia.
The defendant is represented by Richard K. Hohn and Stephen S. Dougherty of Hohn & Scheurle in Philadelphia, plus Lindsay C. Harrison and Huiyi Chen of Jenner & Block, in Washington, D.C. and Chicago, Ill.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-01975
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com