Lawsuits Loom Over East Palestine Train Derailment

The aftermath of the February 3rd massive freight train derailment in East Palestine, Ohio has left the area’s residents with growing concerns for their health and safety.

Lawsuits Loom Over East Palestine Train Derailment

ByAnjelica Cappellino, J.D.

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Updated on March 20, 2023

Lawsuits Loom Over East Palestine Train Derailment

The derailment of Norfolk Southern Railway Company’s 38 train cars, many of which were carrying hazardous chemicals, has potentially serious consequences for the region’s air and water quality. While the National Transportation Safety Board chair described the event as “100% preventable,” the board has not yet determined what, if anything, could have prevented this disaster. Although investigations are still ongoing, this has not stopped the lawsuits from rolling in, with one Ohio-based law firm announcing its class action lawsuit against the railway company. As state and federal investigations continue to unfold, it is very likely that more lawsuits are ahead for those affected by the derailment and its aftermath.

What Happened?

On February 3, 2023, at approximately 8:55 pm, 38 out of the 149 train cars on the Norfolk Southern Railway Company train derailed in East Palestine, Ohio. The train was carrying a variety of products from Madison, Illinois to Conway, Pennsylvania. Eleven of the derailed cars were tank cars carrying hazardous chemicals, resulting in a fire in those cars that subsequently spread to 12 of the non-derailed cars. The fire spanned the entire length of the derailed cars and blocked the two main tracks as response teams attempted to contain the flames and spread of chemicals. First responders implemented a one-mile evacuation zone that affected 2,000 residents, but there were no immediate human fatalities or injuries.

Per preliminary investigative reports from the National Transportation Safety Board, the cause of the derailment may have been a wheel bearing rapidly overheating. Although there are sensors known as hot-box detectors along the 30 miles of train tracks, the train crew was not alerted to stop the train until the third detector, located 19 miles from the first detector, indicated an increased temperature. This third reading – 253 degrees above ambient temperature – was high enough to trigger an alarm, but as the train’s engineer attempted to stop the train, the wheel bearing failed. Once the train had come to a stop, operators saw the fire and smoke and alerted authorities as to possible derailment along the tracks.

The tank cars were transporting hazardous materials such as combustible and flammable liquids and gases, including 115,580 gallons of vinyl chloride, a flammable chemical used to manufacture PVC, which is an explosion hazard when exposed to heat. As residents of Ohio and neighboring Pennsylvania were warned to evacuate, the response crew engaged in a controlled release of the materials into a trough to burn, to prevent an uncontrolled explosion at the site. The fire was mitigated in two days and the evacuation order was lifted five days after the derailment.

Controlled burns, however, released phosgene and hydrogen chloride into the air. Phosgene is a highly toxic gas that was previously used as a weapon in World War I. Vinyl chloride is also classified as a carcinogen by the Environmental Protection Agency.

The Aftermath

It is estimated that the derailment caused the release of more than 100,000 gallons of toxic chemicals into the environment. Although numerous public officials, including East Palestine’s Mayor Trent Conaway, have assuaged residents’ safety concerns over air and water quality, it is becoming apparent that the derailment and subsequent release of vinyl chloride into the area poses health risks.

In one survey conducted by the Ohio Department of Health and the U.S. Department of Health and Human Services, three-quarters of the 168 participants said that they experienced headaches in the wake of the derailment. In addition, over half experienced irritation, pain, or burning of the skin, and three-quarters reported coughing. Wildlife in the area has also suffered, with the Ohio Department of Natural Resources reporting that 3,500 fish and 43,000 animals have died since the derailment.

The Environmental Protection Agency has ordered Norfolk Southern to conduct a cleanup of the chemicals from the area’s soil and water, finding that the company is liable under the Comprehensive Environmental Response, Compensation, and Liability Act. The EPA has found that along with vinyl chloride, other hazardous materials, including butyl acrylate, ethylhexyl acrylate, ethylene glycol monobutyl ether, and isobutylene, were also released into the air, soil, and water.

Potential Lawsuits

Johnson and Johnson, a Youngstown, Ohio-based law firm, and Hagens Berman, a class action law firm, announced a class action lawsuit against Norfolk Southern Railway on behalf of all residents within 30 miles of the derailment. The lawsuit is alleging claims of public nuisance, a similar strategy used in litigation against opioid manufacturers as well as the Big Tobacco lawsuits of the 1990s. Along with compensatory and punitive damages, the lawsuit seeks to establish a medical monitoring fund and testing and cleaning protocols, as well as injunctive relief concerning oversight of Norfolk Southern’s safety and compliance programs.

Within three weeks of the incident, there were already more than a dozen lawsuits filed in federal court on behalf of local residents. Lawyers have visited the area and continue to sign up clients and gather evidence. Some attorneys have held information sessions throughout the community, warning residents that the effects of the derailment on their health and property value can take months, years, or even decades to develop. “They get what’s happening,” said personal injury lawyer, Rene Rocha, during a state hearing.

Residents have expressed dissatisfaction with the response from the government and politicians, and they’re seeking information and guidance from counsel. “They see they’re not getting the truth from the politicians and the company. That leaves the lawyers,” Rocha added.

How Can Experts Help?

As the derailment itself is still being investigated, a number of experts will undoubtedly be called upon to determine the exact cause of the derailment. Although investigations have determined no wrongdoing on the part of the train crew, the description of the event as “100% preventable,” by the chair of the National Transportation Safety Board leads to the question – What went wrong?

Railway engineering experts, particularly those specializing in heat sensors, train control systems, and other mechanisms for detecting and preventing derailments and fires will be able to opine as to what exactly happened to cause such a spike in temperature and failure of the wheel bearing.

Experts in the fields of hazardous material transportation and disposal, as well as experts in industrial and environmental safety, will be needed to determine whether the materials transported were properly stored and handled after the derailment.

As the long-term effects of the contaminated air, water, and soil are yet to be known, a medical monitoring program may be key in recognizing potential health risks. Medical experts in the fields of toxicology and oncology, among many others, may be able to determine the effects of these carcinogens on East Palestine residents.

Overall, while the derailment’s effects are yet to be fully known or understood, it is likely that this disaster is in the preliminary stages of investigation and litigation that will take years to resolve.

About the author

Anjelica Cappellino, J.D.

Anjelica Cappellino, J.D.

Anjelica Cappellino, Esq., a New York Law School alumna and psychology graduate from St. John’s University, is an accomplished attorney at Meringolo & Associates, P.C. She specializes in federal criminal defense and civil litigation, with significant experience in high-profile cases across New York’s Southern and Eastern Districts. Her notable work includes involvement in complex cases such as United States v. Joseph Merlino, related to racketeering, and U.S. v. Jimmy Cournoyer, concerning drug trafficking and criminal enterprise.

Ms. Cappellino has effectively represented clients in sentencing preparations, often achieving reduced sentences. She has also actively participated in federal civil litigation, showcasing her diverse legal skill set. Her co-authored article in the Albany Law Review on the Federal Sentencing Guidelines underscores her deep understanding of federal sentencing and its legal nuances. Cappellino's expertise in both trial and litigation marks her as a proficient attorney in federal criminal and civil law.

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