Silva

Teenager Lucas Silva was killed when he was hit by a train owned and operated by defendant Union Pacific Railroad Company (Union Pacific). His parents, plaintiffs Jose and Lupe Silva, filed a wrongful death action. Identified in the complaint as “significant factors in the death of [the] deceased” were “negligent operation” of the train and the failure “to maintain fences protecting the public from the train tracks [.sic].”

The heart of Union Pacific’s litigation strategy has been the preemption of state common law liability by virtue of the extensive federal regulation of the railroad industry. The key to that strategy has been to establish that the train that killed Lucas Silva was traveling within a federally authorized speed limit. Union Pacific obtained a summary judgment on the ground that it had established that the train had been operating within that speed limit. That judgment was reversed because the evidentiary showing establishing the speed limit was insufficient. (Silva v. Union Pacific Railroad Co. (Sept. 30, 1997, A076412) [nonpub. opn.].)

When the cause was returned to the superior court and called for trial, both sides made a number of competing in…