Train death on video: Pierce medical examiner battles with railroad

The freight train that killed Ronnie Stirgus earlier this year had a camera that captured his final moments on video.

Now Burlington Northern Santa Fe Railway officials accuse the Pierce County Medical Examiner of using an “illegal ruse” to try to get the footage and have gone to court to stop him.

Medical Examiner Thomas Clark said his investigators need a copy of the video to determine the manner of death — which can include accident, suicide or be undetermined. When rail officials wouldn’t hand it over, citing privacy concerns, he flexed the subpoena power the state gives him, Clark said.

The video shows 50-year-old Stirgus walking on snowy rails Feb. 5 in Puyallup before the train hits him near Fifth Street Southeast. Police said he appeared to slip or stumble as the locomotive approached.

BNSF asked Superior Court Judge Edmund Murphy to keep Clark from enforcing his subpoena for the footage, and the judge agreed April 12 to do that until a hearing next month.

Railway spokesman Gus Melonas declined earlier this month to comment about the situation.

In court records, railway attorney Michael Chait said that, as a matter of company policy, “in the era of social media and YouTube, BNSF did not release the video, to protect the family of the deceased and BNSF employees involved in the tragedy.”

The petition Chait filed to stop Clark’s subpoena gives this account of what happened:

An investigator from the Medical Examiner’s Office called a BNSF employee Feb. 8 and asked for the video. The railroad employee said he could bring the video over anytime to show investigators, but couldn’t provide a copy, because of privacy concerns.

When the railroad reiterated that in the following days, Clark said he would subpoena the footage, which he did March 17, by calling for an inquest into Stirgus’ death.

That process lets a jury determine how someone died instead of the medical examiner.

BSNF argued an inquest is arcane and rarely used, and added that scientific advances have helped investigators better determine how someone died.

Clark agrees inquests don’t happen often. He told The News Tribune he believes the last one in Pierce County happened under medical examiner Dr. John Howard, who resigned in 2007.

But he said he needed to open one to subpoena the railway video.

“That is the only place that the medical examiner is allowed to issue a subpoena,” Clark said. “Normally we don’t have to.”

The subpoena is invalid, BNSF argues, because no inquest has been convened.

Clark wrote the Superior Court administrator that he was opening an inquest, but that, until further notice, the court wasn’t being asked to provide a jury, because investigators still were “gathering evidence.”

The BNSF petition called the move an “illegal ruse,” a “bait and switch” and “a perverse effort to gain physical possession of the video for improper use,” — for training.

Asked about the contention that he planned to use the footage for training, Clark told The News Tribune he wanted all the office’s investigators to review the video and other evidence together and discuss the case, as they generally do with complicated deaths.

“I did say: ‘It’s good for them to be able to see all of the evidence on a case,’ ” Clark said of his communication with BNSF. “And that’s true, that part probably is training.”

But not exclusively, he said — everyone who viewed the video would be contributing to the discussion about the case.

And, Clark said, because state law covering death investigations requires confidentiality, discussions can’t happen in front of railway staff members, which is why he didn’t accept the railway’s offer to show investigators the video.

“BNSF has offered to bring the video, but they want to keep their representative present while we look at it, and that violates our confidentiality standards,” Clark said.

“... Our records, including our pictures of the scene and of the decedent, are confidential. We can’t show them anymore than we could show any member of the public.”

Asked by The News Tribune if the video could be viewed separately, or if other evidence could be put away while investigators viewed the video with someone from BNSF, Clark said: “We like to do it at the same time.”

He said he thinks it’s important for him to view such videos to track public health trends, such as train deaths at particular crossings.

In the past, providing video hasn’t been a problem for the railway, he said. This is the first time BNSF has refused to hand over a video, and Amtrak still gives copies of its footage when asked, Clark said.

He said he couldn’t easily say how many times BNSF had provided videos, because that would require looking through records for every train fatality.

Melonas, the BNSF spokesman, declined to talk about the company’s general video practices.

As for the railway’s concerns about the video becoming public, Clark said, “The video, like all of our case records, is confidential.”

“We can’t share it, we can’t copy it, we can’t do anything except look at it to come to conclusions in the course of our investigation,” he said, adding that after that, footage is destroyed.

Clark’s attorney, Deputy Prosecutor Steve Trinen, confirmed the video would be exempt from disclosure under state law. That could change in court, he said, because an inquest is a public proceeding.

And because Clark and BNSF haven’t come to a compromise, they’ll be in court next month.

Meanwhile, Stirgus’ manner of death is pending.

This story was originally published April 22, 2017 at 8:00 AM with the headline "Train death on video: Pierce medical examiner battles with railroad."