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Rick Shapiro
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INTERVIEW WITH THE RAIL INDUSTRY INSIDER DAVE NELSON-IS HE CSX'S PUBLIC ENEMY NUMBER ONE?

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Everyone knows the story of Jeffrey Wigand, “the insider” who blew open the truth about the tobacco industry “conspiracy” of silence relating to cancer and diseases caused by tobacco. But have you ever heard of David Nelson, the railroad industry “insider” who blew the whistle on CSXT’s rail crossing billing “over-charges” to the federal government? Nelson also unloads the truth about little known signal system defects that he contends are causing injuries and deaths at signalized crossings even now, at crossings nationwide. Nelson is toiling away in obscurity, working at a Lowe’s hardware store, but has explosive information. Nelson provided important information to Walt Bogdanich, the New York Times reporter who authored a major expose of rail crossing safety issues. Nelson most recently provided grand jury testimony and other information as a Qui-Tam plaintiff in a case started in 2001 under seal, but the seal was lifted in 2004 after the Department of Justice did not intervene in the case.

As an active railroad injury lawyer, presently the Chairman of the Ass’n of Trial Lawyer’s of America Railroad section, I wanted to revisit Mr. Nelson’s situation, and the new interview follows:

Q: When was the last year you were employed by CSXT?

I officially resigned Sept. 1991. Unofficially, I have continued to speak for many CSXT Signal Employees. We decided to select one representative to eliminate 3 problems effecting safety, knowing we would all be fired if we protested as a group. Unfortunately, I was selected to take the hit. The 3 problems are: #1 Eliminate overcharges to the “crossing and signals emergency protection materials budget.” resulting from what I consider to be bid rigging between CSXT and a 3rd party suppliers. #2 Eliminate our being forced to commit what I consider fraud against new (government funded) crossing installations. #3 Most importantly, eliminate the use of a train detection control circuit that is responsible for the deaths of innocent drivers.

Q: Explain what types of supervisory work you did the last CSXT position you held?

My position was Programs Engineer. As a Programs Engineer, I was in Operation Headquarters (Jax), which runs the entire CSXT system. I was responsible for “all” system wide materials procurement in Signals and Crossing maintenance, new construction and refurbishment. Creation of material requisitions and Bills of Materials through reviewing Crossing and Signal Design Plans. Scheduling of CSXT Signals and Crossing Design Engineering. Scheduling of material shipped to new installations, scheduling of 3rd party vendors, scheduling of the Savannah Shop (where crossing and signal houses are wired) scheduling of system gangs for new installations. Myself and two others designed and implemented the CSXT Electronic Data Invoicing system.

Q: What is your electrical background, especially relating to railroad experience?

Graduate Electronics Technician, Ashland, Ky. Technical. Ensign Electric, manufacturer of electronic and electrical control systems for the mining industry. Ten years.
Quality control supervisor (control circuit trouble shooter). Master Scheduler. CSX Transportation, Operations Headquarters, Jacksonville, Fl. Signals and Crossing Circuit Design Engineer. Materials Engineer, Programs Engineer. Signals and Crossing Class Instructor.

Q: As an electronics technician, how did you become a Crossing and Signals Design Engineer?

First, there is a significant level of knowledge difference required between electrical and electronics. Electrical deals with (basic) power distribution and controls, while electronics also includes solid state circuitry (as in computers,or television).
An Electronics Technician is a problem solver of an engineers design error, manufacturing error, or circuit failure. An Electronics Technician can easily adapt as a Draftsman, or Engineer. CSX actually had only two graduate Electrical Engineers. Normally a Crossing and Signals Engineer, has no formal education and starts by digging trenches for control wiring. He then advances to installation of crossing and signal systems, then maintainer, supervisor and finally to the design section. With no formal education in electronics, or electrical, an engineer is proficient only, in accordance with what the railroad has taught them, incapable of “thinking outside the box.”

Q: Why did you leave CSX? Were you a disgruntled employee?

I was treated extremely well as a CSX Employee and enjoyed my work immensely. As a Programs Engineer, I dealt with Crossing and Signal Maintenance and construction gangs daily. Our safety maintenance budgets were cut, employee coverage reduced, a decision was made to transfer material purchasing powers to a third party supplier, resulting in overcharges to crossing maintenance. (The same process also overcharged the government on crossing installations). Signal Field Supervision insisted I represent them, by eliminating the overcharges on crossing (emergency protection) materials and to eliminate the use of a train detection control circuit that fails, killing unsuspecting motorist. I called for two separate internal audits, resulting in letters being written to the VP of Purchasing and VP of Engineering, requesting a change in purchasing procedures, but no changes occurred. Unable to correct the problems, I decided to resign and continue to find remedy outside the railroad. Not a heroic act, it actually took me two years to get the courage to act.

Q: How did you get the information to the government relating to fraud?

I reported my allegations to the Florida Attorney General’s Office and worked with FDOT and Florida RICO for two years. This investigation resulted (1993) in a “voluntary refund” by CSX of $2.1 million in overcharges to crossings.
I filed a False Claims Action in 1994, as a result of CSX’s refusal to eliminate these overcharges. The case was settled in 1995 when CSX offered the DOJ $5.9 million.
CSX still refused to change it’s practices. In 2001, I once again began working with the USDOT, OIG, only this time, I was also requested to help in a criminal investigation and testify before a Grand Jury.

Q: Have I ever been retained as an expert on an injury case involving CSX “signal systems?”

No. I have provided what you might consider “expert” services in an action that has been under seal, by the Federal Court in Atlanta since 2001.

Q: Have I ever been required to give a deposition?

Yes: I was asked to testify for a CSXT Employee fired, for informing a CSXT customer they were being overcharged. CSXT requested a deposition in around 1998. But I have not testified in any crossing injury litigation, although one lawyer retained me for advice, and had me appear at a rail crossing injury case mediation conference where CSXT was one of the defendants. The case did settle and I believe my involvement convinced CSXT.

Q: Are you aware of any safety related issues to electronic signal systems commonly used by CSXT?

Yes. All railroads use the same control circuits as a standard approved by the AAR and FRA. So, all railroads have the same problem, including foreign railroads.

Q: Can you give me an explanation of what malfunctions occur with these rail crossing electronic signal systems?

First, these are not “malfunctions” but full blown failures as prescribed by the CFR’s. Malfunction is a term presented to the media by railroads. A WORLD of difference.
Let me explain the term “fail safe” first. Any control circuit can fail causing a train to go undetected, or provide less than 20 seconds warning to motorist. If a situation occurs that prevents the the detection of a train the gates “MUST” drop to a horizontal position and remain down, until the maintainer makes a permanent repair. This warns the motorist.
CFR 234.203—–In no case, will a control circuit be used that fails to operate on the “fail safe” principle. Gates pumping up and down is “apparently” outside the CFR requirements, right?
CFR 234.225—-In no instance will a control circuit be used that provides less than 20 seconds warning to motorists prior to the trains arrival at a crossing.
Gates coming down behind drivers certainly don’t match the federal requirements.
This area is much more involved and failures come in a variety of fashions. The main problem is: I have talked with several lawyers who have not understood that these federal regulations are the key violations, not general state laws.

Q: Are the electronics used in the 90″s still in use today?

Yes. I have worked extensively with the USDOT, OIG on these crossing failures. At the request of the OIG, I met with 8 of the top FRA Officials in Atlanta. These officials (which included the FRA top Engineer) agreed that these failures do happen. The FRA accident report form even includes a block “coded” to indicate FAILURE of the train detection control circuit. The problem the USDOT, OIG and myself have, is the Department of Justice cut our legs from under us by not intervening in a Qui-Tam [whistleblower suit], eliminating the DOT Investigation budget, which recently killed the pending case.

Q. Do you contend that the influence of John Snow, present Treasury Secretary, and former CSX CEO, had anything to do with the Department of Justice refusing to become involved in the most recent Qui Tam action you were involved in?

Absolutely. I have no doubt in my mind.

Q: Have other former CSX officials recently taken powerful government positions?

Try this: The USDOT, OIG (Meade) resigned recently. I personally do not know the reasons, but I also know this: President Bush has now nominated David Sanborn to be the new administrator of the Maritime Administration of the Transportation Department. Sanborn worked as Dubai Ports World’s director of operations for Europe and Latin America. He was earlier an executive with CSX before becoming a senior Dubai Ports World executive. This speaks volumes.

Q: What is your current position and does it relate to railroad highway-railsafety in any way?

I work at a Lowes hardware Store. I became tired of trying to resolve the railroad issues on my own. I have been “Black Listed” by the CSXT’s former Chief Engineer of Signals and Crossings. I am now an adjunct faculty member associated with the University of North Florida teaching highway/rail crossing accident reconstruction, investigations and prevention, with the classes being offered through Investigative Police Technologies Management (IPTM). Class students include state, local and federal police and agents. Students have also included NTSB agents, and FRA inspectors.

David Nelson’s contact information: Phone (904) 619-5405, nelson284@juno.com .