COMMENTARY: Railroad disaster likely to result in mass litigation

By A. Vince Colella

‘It looked like a war zone’

On February 3, 2023, just before 9 p.m. local time, an eastbound Norfolk Southern Railway freight train derailed 38 rail cars on a main track in E. Palestine, Ohio. The derailed equipment included 11 tank cars carrying hazardous materials that subsequently ignited, caught fire and spread throughout an additional 12 other cars. Two thousand residents in the immediately affected one-square mile area were evacuated.

While there were no reported human fatalities or injuries, there were wide scale reports of domestic and wild animal carnage. Residents described the area as a “war zone.”

According to the National Transportation Safety Board (NTSB), the subject train was operating with a “dynamic brake application” using electronic traction motors as generators, slowing the train and dissipating mechanical energy as heat. However, the hot bearing detector (HBD) — designed to detect overheated bearings — transmitted an audible alarm message instructing the crew to slow and stop the train to inspect a hot axle as they approached the east side of Palestine. But, before the crew reacted and responded to the warnings, the bearing temperatures had already exceeded critical ambient temperatures, causing the railcar to derail and catch fire.

‘Aftermath of the disaster’

According to officials, the aftermath of the derailment reached an alarming status when it had been determined that one of the five derailed tank cars carrying thousands of gallons of vinyl chloride saw a dramatic increase in temperature, creating a serious risk of a possible explosion. On February 5, responders scheduled a controlled “venting” of the five vinyl tank cars to release and burn the remaining gases — prompting a wider scale evacuation. The detonation of the train cars sparked fear and concern over the intentional emission of toxic fumes into the environment. Following the “controlled release” residents reported that their domestic animals became lethargic, experienced vomiting and many died. The immediate impact on the residential animals and wildlife gave pause and raised concern amongst the residents as to the impact the noxious gases would have on their own health. While “experts” from the Environmental Protection Agency (EPA) maintained that air and ground water testing following the derailment were within normal limits, residents remained skeptical. One resident, Katlyn Schwarzwaelder, spoke with national syndicated pod cast host, Glenn Beck. Schwarzwaelder expressed concern that ground water testing results could not be trusted as the effect of vinyl chloride on the water supply would take months before reaching detectable levels. Perhaps even more distressing is the fact that there are no standards for the amount of vinyl chloride allowed in the air of a home; residents were left to the specious self-detection adage, “…if you can smell vinyl chloride in the air, the level is too high.”

Liability of Norfolk Southern

Liability for the injuries and damages caused by the derailment and subsequent detonation of rail cars is multi-layered. From a government standpoint, the EPA has already put Norfolk Southern on notice of potential liability. In its letter to General Counsel for the railroad, it cites a federal “Superfund” law (formally known as, CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act.) The EPA makes specific references to provisions under the Act that require clean-up actions at the sole expense of the railroad. There are also private rights of action under CERCLA that residents may assert to cover their own losses, including the loss in value of property — surely to be of paramount importance to the community.

State law allows residents of E. Palestine to bring private actions against the railroad for injuries suffered as a result of the exposure to hazardous substances, pollutants or contaminates released into the environment during and after the derailment. Interestingly, while the railroad industry is federally regulated, there is no specific federal law providing recourse for injuries and damages caused by acts or omissions of the railroad or its employees. However, under Ohio state law (similar to Michigan), residents may bring causes of action for negligence and strict liability for physical injures and damages stemming from the exposure. Additionally, Ohio state law provides for “equitable relief,” including, medical monitoring of chemical levels. These state law claims may be brought in the local circuit court or under a diversity action in federal court where the “matter in controversy exceeds five million ($5,000,000.00) dollars. [28 U.S.C. §1332(d)(2)]
Norfolk may also be liable for injuries suffered by its own employees under the Federal Employers’ Liability Act (FELA). Similar to traditional claims of negligence, to prevail on a FELA action, a plaintiff must establish, “duty, breach, foreseeability and causation.” However, FELA relaxes the standards of proof on causation allowing juries merely to decide whether the employer’s negligence “played any part, even the slightest, in producing the injury.” Rogers v Missouri, et al, 509 F 3d 265 (2007) Thus, if it is determined that Norfolk Southern contributed in any way to the overheated axle on its train car, toxic exposure injuries experienced by employees will fall squarely on its shoulders.

Like many environmental disasters, the immediate impact remains in question. However, lawyers for residents and government officials remain poised to hold Norfolk Southern responsible for expected long-term damages arising from the company’s negligence.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.