A federal judge has chastised TriMet for failing to release scores of internal emails, memos and other documents to attorneys in a lawsuit on behalf of two pedestrians struck and killed by a bus in 2010.
The ruling in the federal civil rights case raises a fresh set of questions about TriMet’s commitment to transparency and its handling of public records as it comes under scrutiny on various fronts.
U.S. District Court records show that the attorneys representing the families of Jeneé Hammel of Gresham, Ore., and Danielle Sale of Vancouver accused TriMet officials of sitting on the material, attempting to run out the clock on the period in which they were allowed to gather evidence.
Judge Michael Mosman determined that the in-house legal team for Oregon’s largest transit agency relied on semantics to essentially pretend that documents discussing the deadly crash didn’t exist. He sanctioned TriMet with a $5,000 fine and ordered the suppressed evidence turned over.
In a court hearing last month, the judge also took TriMet officials to task for constantly grumbling about requests for evidence during the phase of the lawsuit known as discovery.
“I’d just say that if one of TriMet’s buses takes a left turn and kills somebody, badly injures three others, then they probably should buckle up and expect some discovery without too much complaining,” Mosman said, according to a court transcript.
The $425 million-a-year public agency has frequently found itself defending against accusations of being overly secretive.
Earlier this year, The Oregonian found that General Manager Neil McFarlane surreptitiously handed out raises to managers and other non-union employees, even as the agency slashed bus service and instituted its largest fare increase in its history. Approaching a new round of contract negotiations, Amalgamated Transit Union 757 has also repeatedly accused TriMet management of withholding public documents it requested.
TriMet officials declined to comment on Mosman’s ruling, saying the agency doesn’t discuss ongoing litigation. The victims’ attorneys also declined to comment.
Just before midnight April 24, 2010, TriMet driver Sandi Day made a sweeping illegal left turn and plowed into five pedestrians with a 16-ton TriMet bus in Portland’s Old Town. The pedestrians, following a “walk” signal while crossing Northwest Broadway, had the right of way, a Multnomah County judge ruled in a 2011.
Sale, 22, a 2007 Fort Vancouver graduate, and Hammel, 26, were crushed under the No. 9 bus. They died at the scene. Hammel’s older brother, Ryan Hammel, and his wife, Jamie, and their friend, Erik Gittings, Sale’s boyfriend, survived with injuries.
Hammel was the mother of a son, Koby, who is now 5.
TriMet fired Day, who was found guilty of six traffic charges including illegally accelerating across two traffic lanes to make a left turn.
The parents of Hammel and Sale, as well as the three survivors, filed lawsuits against Day and TriMet in state and federal court. Mosman has said he will not rule on a TriMet motion to dismiss the federal case until the state wrongful-death case, set to begin in June, is resolved.
Oregon caps liability for injuries and deaths from a single incident, regardless of the number of victims, to $1 million. There is no such cap in federal court.
Under state and federal law, attorneys are obligated through the discovery process to share potential evidence when the other side requests it.
In March 2011, attorneys for victims in the TriMet crash formally requested all records relating to the Day crash. In early April, about two weeks before the discovery deadline, the attorneys noticed that they had not received internal email strings and other documents that TriMet officials had mentioned in videotaped depositions. The attorneys filed a motion asking Mosman to sanction the transit agency.
TriMet’s response: If the plaintiffs wanted electronic files — or “e-discovery” — they should have asked for it specifically. They didn’t. That touched a nerve with the judge. “I don’t know where TriMet has been in the last 10 years,” Mosman said during the April 9 hearing, “but discovery is basically e-discovery.”
The idea that TriMet’s obligations to produce documents were excused because they are electronically stored information, as opposed to paper, “is a completely meritless argument,” he said
TriMet produced the missing documents for the attorneys. Much of their content remains sealed from public view under court order.
However, what is clear from court records is that the material produced by TriMet includes something referred to as “the Lomax email,” involving TriMet’s operations director, Shelly Lomax. Court records show that the email supports a key assertion of the plaintiffs’ case: that TriMet has trained drivers to make illegal turns like the one Day made when space after a stop is limited.
In addition to requiring TriMet to produce the additional documents, Mosman ordered General Manager Neil McFarlane to submit an affidavit swearing that this time, the agency had submitted a complete record of the crash. The $5,000 fine was intended to cover the plaintiffs’ costs for filing a motion requesting sanctions.
One document that doesn’t exist anywhere: A final TriMet report on the worst transit tragedy in modern Portland history.
Agency policy requires an extensive examination into major crashes, detailing investigation techniques, contributing factors and recommendations, according to court documents. “But in this case,” the victims’ attorneys state in a recent filing, “Trimet chose not to document it.”