The Case Against Norfolk Southern

As one of the firms working to hold Norfolk Southern accountable, here’s how attorneys at Morgan & Morgan are building their case. 

The Ohio train derailment in early February is set to join the likes of the Deepwater Horizon BP oil spill and the Tennessee coal ash spill as one of history’s biggest man-made environmental disasters. For the residents of East Palestine, Ohio and the surrounding region, the consequences of toxic chemical contamination are only just beginning. 

Multiple class action suits have been filed against Norfolk Southern, the fifth biggest railway operator in the US, for negligence which led to the derailment and the cleanup mismanagement. While much is still unknown about the derailment and its effects, one thing is certain: strategies that placed profits over people led to this moment. 

Morgan & Morgan attorneys Frank Petosa and Rene Rocha, who have represented clients impacted by events such as the Deepwater Horizon BP oil spill, the Porter Ranch gas leak from the Aliso Canyon well blowout, and the Merrimack Valley gas explosions, are building the case to hold Norfolk Southern accountable. Here’s how. 

The Derailment: The Facts 

On February 3, 2023, a freight train consisting of 149 rail cars (at a whopping 1.8 miles long) was passing through East Palestine, Ohio, when 38 rail cars derailed. Of the derailed cars, 11 held hazardous materials, including vinyl chloride. 

Hot bearing detectors (HBD) are a safety mechanism designed to alert crew when there is an overheated wheel bearing. Three HBDs recorded a bearing steadily rising in temperature over the trip, with the last detector recording the bearing temperature at 53 degrees above critical. 

The heating thresholds, including what is and isn’t ‘critical’, are set by Norfolk Southern. Collected video footage shows that there was a wheel bearing in overheat failure right before the derailment. 

Two days later, on February 5, five of the derailed tank cars, carrying 115,580 gallons of vinyl chloride, continued to rise in temperature, at risk of explosion. 

Although these tank cars generally have safety valves to slowly release pressure and mitigate such risk, turns out the valve on one of the cars wasn’t working. Norfolk Southern responded by puncturing those five cars, releasing the chemicals into unlined ditches, and lighting them on fire, creating a cloud of phosgene gas.  

Members of Ohio’s National Guard get ready to enter the incident area following the derailment
Credit: “Ohio National Guard”, The National Guard, licensed under CC BY 4.0. 

The Operational Strategy That Led Us Here

Poorly maintained train hardware, such as the failed wheel bearing and safety valve, are the consequence of a new operational strategy in the railroad industry.  

In 2019, Norfolk Southern announced their transition to precision scheduled railroading (PSR). PSR is designed to create more efficiency, with longer railcars and fewer staff members to support them. 

In the last decade, the number of employees at Norfolk Southern has shrunk 37% while gross profits have risen by 23%. Rail workers have been feeling the strain on inspections. Where they used to have two to three minutes to inspect each car, they now have fewer than 90 seconds. 

The concerns over PSR are not new. Overworked safety and maintenance employees are a direct result of this strategy, now a factor in what was a preventable catastrophe in Ohio. 

Cleanup Mismanagement: The Failure to Contain Toxic Chemicals 

While the chosen response has been described as, ‘a controlled explosion’, it was anything but. Phosgene gas was used extensively in WWI and has since been outlawed by the Geneva Convention. Extreme exposure is fatal and even mild exposure can have long-term health consequences. 

Safely releasing the vinyl chloride would have been much more costly to manage and kept the railway closed for an even longer period of time. What could and should have been the response was overlooked for a cheaper option. 

Instead of draining the chemicals directly into the ground, they could have been released into lined pits. Booms, which are barriers used to contain spills, could have been utilized to stop the spread of the chemicals. The lined pits could have then been put into other vehicles for transport to safely dispose of. 

While the goal of every business is to generate a profit, the goal cannot be to generate profit at any cost. Once the derailment occurred, it was possible, but more expensive, to safely remove the vinyl chloride without setting it alight. 

Building The Case

Although government reports indicate that there is no contamination of water or air near the site, dying local wildlife and the resident experience on the ground indicates otherwise. With people in the region reporting headaches, respiratory problems, and other adverse health effects, there’s more to uncover about the impacts of this event. 

Class action suits have been filed by Morgan & Morgan and others. In the future, members of the community may also pursue individual claims in a mass tort action as the extent of the damages are realized.

Here’s a breakdown of the case. 

The Class Action

Currently defined to include a region 30 miles around the release of the burning vinyl chloride, this definition is set to evolve based on expert findings of the air and water contamination in the area. 

The suit will include claims for medical monitoring, homeowners, and business owners.

Medical Monitoring
With the long-term health effects still unknown, a medical monitoring claim will give plaintiffs a recourse for the costs incurred from extra testing and treatment. Establishing patient baselines and frequent monitoring to diagnose and treat diseases early will be essential. As of 2021, Ohio is one of nine states to recognize medical monitoring claims absent of present injury. 

Homeowners & Business Owners
For one man nearing retirement, the derailment has destroyed his plans. Without the ability to sell his home, his net worth has plummeted. For a restaurant in the area, it caused their kitchen to fall silent. A local organic farm no longer has produce that could ever be considered organic. People were forced to evacuate their homes, buy bottled water, and are unable to work. 

Loss of income, evacuation expenses, short-term health issues, loss of the use and enjoyment of their home, and pain and suffering are all damages that Norfolk Southern are being sued for. But there is no amount that can turn back time. 

The Evidence

A case as complex as this one requires a plethora of experts to help attorneys (and juries) understand the negligence and recklessness leading up to the derailment and how extensive the effects are. 

These are some of the experts that will be consulted when building the case:

• Railway operations experts to corroborate the findings of the NTSB report or gather additional evidence on the timeline leading up to the derailment and its cause.
• Air modelers and hydrologists to identify the travel patterns of the air released from the burning vinyl chloride and flow of water from the ground contamination. 
• Hazardous substance and release experts to provide insight on alternate and appropriate responses.
• Preservation and metallurgy experts to study the tanker cars, bearings, faulty safety valve and other hardware involved.
• Health experts and economists to determine the short-term and long-term extent of the damages on the community’s health and economy. 
• Real estate experts to determine the impact on home values in the surrounding communities. 

What Happens Next

With so many cases being filed, including potential suits from local governments, an MDL may be formed to consolidate the cases. With an MDL, or consolidation of the filed actions before one judge, the court will likely appoint a leadership structure to move forward all cases on behalf of the plaintiffs that have been impacted and keep them moving efficiently through the courts. 

With much still being learned, filing a class action is only the beginning. The number of plaintiffs, the extent of the damages, and the process of justice is still being determined. With individual claims also expected, there will be multiple avenues for people to receive the justice they deserve.

Events such as these highlight bad corporate practices that need to change. Secretary of Transportation Pete Buttigieg has already pushed for a three-pronged approach to improve accountability and safety in the rail system. But trial attorneys can push for results faster.

On why we’re fighting this case, Morgan & Morgan attorneys Frank Petosa and Rene Rocha say, “ultimately, when we shine the light on it, changes come, whether it be by government, by jury verdicts, or  by court orders. Changes do happen but it takes time and that's one thing that the community [of East Palestine] doesn't have right now. What they would like is to have their life go back to the way it was on February 2nd.”