The massive Metro-North train accident in Bridgeport last month became a nightmare for commuters and caused $18 million worth of damage.
Of interest to lawyers, 73 passengers, two engineers and a conductor were taken to the hospital for injuries. One passenger was critically injured. Two lawsuits have already been filed on behalf of a handful of injured passengers and another lawyer representing rail workers has sent out letters indicating his plans to sue.
Scores of other law firms, both in Connecticut and out-of-state, have blog posts offering details of the crash and advising readers that their lawyers have experience in handling railroad accident cases.
In the coming months, lawsuits could pop up in federal or state courts in Connecticut and New York. Even the most experienced railroad attorneys contacted by the Law Tribune said it was difficult to predict how ultimately these cases will all play out.
"There really hasn't been an incident on Metro-North of this magnitude before," said New Haven solo Charles Goetsch, whose practice focuses on railroad law. "There's nothing to compare it to. It's really unchartered territory."
Lawyers say that despite some early filings of lawsuits, it's unlikely that any trials will occur in the near future, as all parties await results of an investigation into the crash by the National Transportation Safety Board. Nevertheless, strategic decisions, including timing of the lawsuits and venue, are already being made.
For instance, Metro-North operates partly in Connecticut, but is run by a New York State agency, the Metropolitan Transportation Authority. So claims could be filed in state courts in either state. To file in federal court under diversity jurisdiction, damages sought must exceed $75,000 and both parties to the claim cannot be from the same state. So Connecticut residents with relatively serious injuries can file federal claims.
Experts say attorneys might shop for the court that's known to be more sympathetic to plaintiffs. Discovery rules may also play a part in the decision on where, and when, to file.
One New York railroad law attorney said he prefers federal court for discovery reasons, even though state court juries in the Bronx or Brooklyn might be more generous with verdicts. Goetsch said in a crash of this magnitude, a quick lawsuit may be designed to ensure that all critical evidence is preserved.
"If there's evidence of negligence that is perhaps at risk of being lost or spoiled, then it would make sense to file suit and put the other side on notice that that cannot happen," said Goetsch. "The earlier it goes into suit, the earlier you can get depositions, sworn testimony…"
Goetsch said if a number of lawsuits are eventually filed in state court, they will likely be consolidated before one judge for pre-trial discovery and settlement negotiation purposes.
To date, one federal lawsuit has been filed on behalf of an injured passenger and another has been filed in Waterbury Superior Court on behalf of three other passengers. Another lawyer, Raymond Ganim II, has given notice to Metro-North that he intends to file a lawsuit in state court in Bridgeport. And yet another lawyer has announced plans to sue on behalf of several Metro-North workers.
Joel Faxon, of Stratton Faxon in New Haven, represents Elizabeth Sorensen, of Mystic, who is suing in U.S. District Court in Connecticut. Sorensen was badly injured in the crash, breaking several bones, including in her legs, arms, and pelvis and has needed several surgeries. She also sustained a brain injury.
The lawsuit alleges breach of duty, recklessness, a violation of Connecticut's Unfair Trade Practices Act and a loss of consortium claim for the woman's husband. Faxon said his client remains hospitalized in Bridgeport "and will be in the hospital for a period of time."
Faxon said the ongoing NTSB investigation played a role in his decision to file the lawsuit so soon. "Unlike many federal agencies, they allow private parties to participate in the investigation, so we wanted to be involved with their progress in looking at the cause of this crash," said Faxon.
According to a statement issued by the NTSB regarding the investigation to date, maintenance work had been done in April near where one of the two trains involved in the crash derailed. The records revealed that a joint bar, used to join together two sections of rail, was cracked and that it had been repaired by Metro-North personnel.
Sections of rail have been removed by federal investigators and shipped to an NTSB laboratory in Washington for further study. In addition, Metro-North is conducting an inspection and inventory of all the joint bars on its main line tracks.
Faxon said he's "confident" that the NTSB probe will ultimately "point to that unrepaired or improperly repaired area as the precipitating cause of the derailment and collision."
The extent of a client's injuries also plays a role in a lawyer's decision of how soon to file a lawsuit. Though Faxon's client was badly hurt, he's heard other passengers may have suffered lesser injuries. "Because these are relatively new rail cars, they withstood the collision better than an older model rail car, so the casualties were limited," said Faxon.
Some injured passengers may need to wait for a long-term prognosis before filing suit. If their damages don't exceed $75,000, they then will file in state court. Faxon also expects Metro-North's claims adjusters to try to settle lesser injury claims before lawsuits are filed.
Ira M. Maurer, a Fishkill, N.Y., lawyer who has handled many railroad cases, said those whose claims exceed $75,000 may well consider filing in federal court. He said federal judges are more apt to crack down on "obstructive behavior by defendants" during the discovery process. "In my experience with Metro-North, they give as little information as is possible or necessary and make the plaintiff go to court and fight for every bit of information they seek," said Maurer.
Maurer has one client who fell and was seriously injured when her head struck the armrest inside a railway car. During discovery, Maurer sought a list of all Metro-North's slip-and-fall injuries, which he said could be easily accessed in the railroad company's own database. Metro-North declined to provide the information.
Maurer turned to a federal magistrate, who ordered Metro-North to cooperate. Metro-North then appealed that ruling to a district court judge, who again said the railroad must provide the records. Finally, Maurer received the information. "It took me many, many months within the court system, and I probably never would've gotten it in the state court," said Maurer.
In Connecticut, the Stamford firm of Ryan Ryan Deluca often represents Metro-North. Charles Deluca confirmed that he has been retained to defend the lawsuits from last month's derailment. Deluca declined further comment.
George J. Cahill Jr., of New Haven's Cahill & Perry, has already sent notice to Metro-North that he intends to file a lawsuit on behalf of at least seven workers injured in the accident. Cahill did not return calls for comment last week.
While most workers must file for workers' compensation if they are injured on the job, railroad employees are exempt under the Federal Employers Liability Act. The law would enable the employees to directly sue Metro-North.•