The U.S. Supreme Court denied the railroad's petition for certiorari in BNSF Railroad Co. v. Nye today, marking the end of the case in which CCL served as Supreme Court counsel. 

      The case involved the death of an eighth-grade science teacher after his car was struck by a BNSF train. His widow asserted that the train was negligent because of the railroad's failure to post adequate warning signs of the crossing, its failure to trim vegetation that obscured the line of sight so a driver could see the approaching train, and the train's failure to sound its horn as it approached the crossing, as required by law. An Oklahoma jury found the railroad liable, and that determination was affirmed by the Oklahoma Supreme Court.

      The railroad argued that it could not be held liable for its failure to post adequate warning signs because the signs at the crossing was part of a federally funded program in the 1970s. If that were true, participation in the program preempts claims for inadequate warnings. However, the railroad's evidence of federal funding was weak and rebutted by strong evidence that federal funds were not used at the crossing. The trial court submitted the question on the competing evidence to a jury. The Oklahoma Supreme Court upheld the jury's determination.

     The railroad asked the Supreme Court to revisit the question and lessen the burden of proof that the railroad needed to qualify for preemption, particularly in light of how long ago the railroad crossing sign was said to have been posted. It further asked that the Court hold that the factual determination of federal funding be treated as a legal, rather than jury, question. Alternatively, the railroad asked the Court to seek the opinion of the Solicitor General of the United States on whether the case should be taken, or to hold the case while the Court decided a drug-preemption case that also involved a jury's determination of facts.

     The denial of certiorari today means that the Court did not take up any of the railroad's entreaties, and the case is over. CCL President Robert S. Peck served as counsel of record in writing the brief in opposition to certiorari.