Law360 (July 3, 2023, 6:43 PM EDT) — Residents, property and business owners and other plaintiffs have told an Ohio federal judge that Norfolk Southern cannot evade liability for its “recklessness and conscious disregard for the rights and safety of others” over the fiery Feb. 3 derailment of a train carrying hazardous materials in East Palestine.
The plaintiffs spearheading more than 30 consolidated proposed class actions fired back at Norfolk Southern Corp.’s motion to dismiss their negligence, strict liability, nuisance and other claims resulting from the derailment near the border of Ohio and Pennsylvania. The derailment released large volumes of contaminants, left tank cars ablaze, and prompted a one-mile evacuation of nearly 2,000 residents who were left reeling from the environmental and health implications of being exposed to toxic chemicals.
In an opposition brief filed Friday, the plaintiffs rejected Norfolk Southern’s “misplaced” arguments that most of their claims are preempted by the federal Hazardous Materials Transportation Act and the Interstate.
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Commerce Commission Termination Act. The plaintiffs argued that the Federal Railroad Safety Act allows them to press ahead with their claims because they’ve extensively detailed how Norfolk Southern flouted safety and breached its duty of care by cutting down inspections, maintenance and training — all of which could’ve prevented the derailment.
They maintained that “a claim involving railroad safety is not preempted by a regulation issued under the FRSA or the HMTA if the challenged acts or omissions are not ‘covered’ by a regulation, violate a duty established by a federal regulation, or violate the railroad’s own internal policies created pursuant to a regulation or order.”
The plaintiffs have ripped Norfolk Southern’s controversial decision to conduct a controlled vent and burn of vinyl chloride — a colorless and flammable chemical used to make a variety of hard plastics — in five tank cars that were among 38 rail cars that had derailed. Norfolk Southern and local officials have defended that decision, saying they were concerned that fires near or under the tank cars could destabilize the chemicals and cause a catastrophic explosion. The controlled vent and burn took place Feb. 6.
“The complaint contains numerous allegations regarding how defendants’ negligent and reckless behavior led to the derailment, and how defendants’ intentional conduct of blasting holes in the vinyl chloride tankers and lighting the vinyl chloride on fire led to a mushroom cloud dispersing toxic chemicals for miles,” they said in the brief. “Plaintiffs further allege the spread of toxic and hazardous chemicals into the local water and onto neighboring private lands at great risk to human life.”
The plaintiffs have also alleged that Norfolk Southern failed to operate “in a reasonably prudent manner” its network of wayside defect detectors, also known as hot bearing or hotbox detectors, which use infrared sensors to monitor the temperature of bearing housings as railcars pass by and alerts train crews when those bearings overheat. The plaintiffs contend that Norfolk Southern’s temperature threshold for triggering critical alerts to train crews is set far too high, and didn’t sufficiently train its employees to maintain a vigilant lookout during transit.
The National Transportation Safety Board’s investigation into the derailment is ongoing, but its preliminary findings have pointed to an overheated wheel bearing on one of the tank cars. The readings from the detectors showed the wheel bearing in question steadily heated up from about 38°F above ambient temperature to 103°F above ambient, then to 253°F above ambient right before the train derailed, according to the NTSB. On that Feb. 3 night, the ambient temperature was about 10°F.
Currently, there are no federal regulations that require the use of wayside defect detectors for freight trains, nor any regulations related to the inspection, calibration and maintenance of such equipment.
Ultimately, the plaintiffs said they’ve extensively described and cataloged the numerous harms they’ve suffered, including lost income, property damage, contamination at residences and workplaces, and increased risk of serious and potentially fatal illnesses including cancer and organ damage necessitating ongoing medical monitoring.
Atlanta-based Norfolk Southern has said it deeply regrets the impact the derailment has had on surrounding communities and has vowed to “making things right.” It has so far paid out more than $16 million to impacted residents and businesses, and pledged to invest millions more in other community initiatives, as it also remediates the site.
But in its June 2 dismissal bid, the rail carrier argued that the plaintiffs’ consolidated master complaint goes too far by trying to represent “upwards of 500,000 class members” spanning three states, and nearly 3,000 square miles encompassed by a 30-mile radius around the derailment. Moreover, federal regulations governing railroad operations preempt state-based claims like the ones alleged by the plaintiffs, according to Norfolk Southern.
As a common carrier, Norfolk Southern is required by federal law to transport hazardous substances, including vinyl chloride. And courts have consistently recognized that common carriers “are not subject to strict liability
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for the carriage of materials that make the transportation of them abnormally dangerous, because a common carrier cannot refuse service to a shipper of a lawful commodity,” Norfolk Southern argued.
In addition to the lawsuits from impacted residents and businesses, Norfolk Southern has been hit with suits from the U.S. Environmental Protection Agency and the state of Ohio. But the railroad is going on the offensive by suing the owners of the tank cars that derailed, alleging they are responsible for past and future cleanup costs that Norfolk Southern so far has borne on its own.
The railroad on Friday filed a Comprehensive Environmental Response, Compensation, and Liability Act suit targeting seven railcar owners and shippers as defendants: Oxy Vinyls LP, GATX Corp., GATX subsidiary General American Marks Co., Trinity Industries Leasing Co., SMBC Rail Services LLC, Dow Chemical Inc. and Berkshire Hathaway-owned Union Tank Car Co.
The NTSB recently held a two-day investigative hearing into the derailment, during which chemical experts and representatives from OxyVinyls, the company whose vinyl chloride was being transported in those tank cars, said the five tank cars containing the vinyl chloride were intact.
“From our perspective, these tank cars and their associated safety devices exhibited sound mechanical integrity and functioned as designed during the extraordinary circumstances of this incident,” OxyVinyls’ vice president of supply chain Karenanne Stegmann said at the June 23 hearing.
The various plaintiffs are represented by interim class and co-lead counsel Seth A. Katz of Burg Simpson Eldredge Hersh & Jardine PC, M. Elizabeth Graham of Grant & Eisenhofer PA, Jayne Conroy of Simmons Hanly Conroy, Michael Morgan of Morgan & Morgan, and the plaintiffs’ liaison counsel is Michelle L. Kranz of Zoll & Kranz LLC. Various plaintiffs are also represented by Shapero & Roloff, Bryant Law Center, Fayard & Honeycutt, Strauss Troy Attorneys at Law, Plakas Mannos, Edgar Snyder & Associates, Dworken & Bernstein Co. LPA, Murray & Murray, Robert Peirce & Associates PC, The Baker Law Group, Markovits Stock & DeMarco LLC, Lieff Cabraser Heimann & Bernstein, Peiffer Wolf Carr Kane Conway & Wise, Meyer Wilson, Lipson O’Shea, Hagens Berman Sobol Shapiro LLP, Goldenberg Schneider LPA, Johnson & Johnson Law Firm, The Lyon Firm, Herzfeld Suetholz Gastel Leniski & Wall PLLC, Wright & Schulte LLC, Seeger Weiss LLP and Lynch Carpenter LLP.
Norfolk Southern is represented by Alan Schoenfeld, Davina Pujari, Chris Rheinheimer, Albinas Prizgintas and Michelle Liszt Sandals of Wilmer Cutler Pickering Hale & Dorr LLP, and J. Lawson Johnston, Scott D. Clements, Aaron Ponzo and Paul Roman of Dickie McCamey & Chilcote PC.
The consolidated case is In re East Palestine Train Derailment, case number 4:23-cv-00242, in the U.S. District Court for the Northern District of Ohio.
–Additional reporting by David Holtzman, Juan Carlos Rodriguez and Matthew Santoni. Editing by Patrick Reagan.
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