The first lawsuits have been filed in the aftermath of the Nov. 30 freight train derailment in Paulsboro that sent container cars cascading off a bridge over the Mantua Creek and released 23,000 gallons of a toxic gas.
The first, Breeman v. Consolidated Rail Corp., 12-cv-7468, was filed Dec. 6 in federal court by borough resident Alice Breeman, on behalf of herself and her three children.
She alleges that Consolidated Rail Corporation (Conrail), Norfolk Southern Railway Co. and CSX Transportation Inc. failed to inspect or properly maintain the 1873-vintage East Jefferson Street bridge, which they own, and that a dispatcher allowed the train to proceed despite a red signal.
Seven cars went off the tracks and three went into the water as the bridge collapsed. One of four cars containing vinyl chloride — a toxic, flammable, and carcinogenic gas — began leaking. After it was detected in the air, local roads, schools and other buildings were shut down, and some people went to the hospital complaining of respiratory problems.
Authorities evacuated 680 people from 204 homes within a 12-block radius. Breeman lives nearby, though not within the evacuation zone, and moved out of her home for a few days, says one of her lawyers, Mitchell Kaye, of Coffey, Kaye, Myers & Olley in Bala Cynwyd, Pa.
Breeman and her children, all under 8 years old, allegedly came into contact with, ingested and inhaled vinyl chloride and other dangerous and toxic fumes and substances. She asserts she suffered bodily injury to her eyes, skin, respiratory system, internal organs and other parts, neurological damage and increased her chances of developing cancer. The “fears associated with that,” have allegedly caused “severe physical, emotional and psychological suffering.”
Kaye says Breeman has been receiving medical treatment for breathing problems and headaches that doctors have attributed to vinyl chloride. “What makes the case so scary” is that she does not know what the long-term effects will be, he says, adding she will probably ask for medical monitoring. He declines comment on the children’s condition.
The U.S. Environmental Protection Agency, classifies vinyl chloride, which is used to make polyvinyl chloride and vinyl products, as a Group A human carcinogen. Short-term exposure to high levels in the air has resulted in central nervous system effects such as dizziness, drowsiness and headaches in humans. Long-term exposure through inhalation or oral contact has resulted in liver damage, and cancer is a “major concern,” the EPA says.
Breeman is seeking $150,000 in compensatory damages for herself and each child. She claims her earnings and earning capacity have been impacted and she has incurred and will incur medical expenses for herself and her children.
The complaint also asks for $10 million apiece in punitive damages for what Kaye calls reckless and outrageous behavior by the defendants.
Two more suits, both putative class actions, have since been brought against Conrail, filed by Evan Smith of Brodsky & Smith in Cherry Hill on Dec. 11 and 13.
All three suits have been assigned to U.S. District Judge Robert Kugler and U.S. Magistrate Judge Karen Williams, both sitting in Camden.
Breeman’s complaint describes a history of problems with the East Jefferson Street bridge, which swivels to allow boats to pass and must be realigned with the tracks so that rail traffic can resume. It accrued 23 “trouble tickets” in the year leading up the derailment, including nine in the 30 days or so prior.
Eight hours before the accident, another train crew reported a malfunction, the complaint says. In addition, the defendants failed to make the last quarterly inspection, due for September, and, to save money, replaced the human bridge operator with a remote system.
Conrail spokesman Michael Hotra says it will respond to the allegations “in an appropriate place and at an appropriate time” and the “focus today is on providing assistance to the Paulsboro community and working with the Unified Command to manage this incident.”
The Unified Command refers to a coordinated response to the derailment involving the U.S. Coast Guard, the New Jersey Department of Environmental Protection and Office of Emergency Management, the Paulsboro Fire Department and Conrail.
Hotra says there has been no determination of the cause of the derailment or that it was a bridge collapse and that Conrail is cooperating fully with an ongoing investigation by the National Transportation Safety Board.
The NTSB announced on Dec. 7 that it had finished its on-the-scene work after collecting hundreds of photographs, videos, reports and records, completing mechanical inspections of the locomotives and cars and interviewing Conrail employees, witnesses and first responders. It plans to issue a preliminary report by Dec. 21.
Paulsboro evacuees began returning home on Dec. 7, after house-by-house tests showed no hazard. As of Tuesday, only 30 people from the 11 homes closest to the bridge had not returned. They will not do so until the last of the damaged cars and debris are removed with the help of a 150-ton crane.
Kaye, whose local counsel is Michael Ringold, of Dansky Katz Ringold York in Marlton, says he is getting calls about the matter from other potential clients as well as attorneys and expects to bring additional lawsuits.
He says he filed in federal court because there was diversity jurisdiction and Conrail would likely have removed the case anyway. A state court action risked a change-of-venue motion due to the extensive media coverage of the derailment, while the federal court in Camden has a broad enough jury base to ensure an impartial panel, he adds.