10 lawsuits filed so far against Norfolk Southern after train derailment

Nine lawsuits filed so far against Norfolk Southern after train derailment
Published: Feb. 20, 2023 at 10:32 AM EST|Updated: Feb. 20, 2023 at 11:32 AM EST
Email This Link
Share on Pinterest
Share on LinkedIn

CINCINNATI (WXIX) - Norfolk Southern Railway and/or Norfolk Southern Corp. now face 10 lawsuits over the Feb. 3 train derailment and release of chemicals, including some that cause cancer, in East Palestine, Ohio.

Norfolk Southern is the same company working to buy Cincinnati’s municipally owned railway for $1.6 billion.

The first suit was filed on Feb. 7 in federal court in the Youngstown area of northern Ohio, the seventh and eighth were filed Thursday, the ninth was filed Friday and the tenth one was filed Monday, court records show.

The suits seek class-action status with more than $5 million in damages, court records show.

They allege similar claims of negligence and carelessness that allegedly caused the train derailment and subsequent unleashing of toxic chemicals.

The most recent lawsuit, filed on behalf of residents Tina Ibel and Sheryl Tomor, alleges a train car was “sparking” and/or “burning” 20 minutes before it reached East Palestine and a “hotbox” detector in Salem, Ohio, should have detected this activity and alerted the crew, but it is not known if this occurred.

The suit was filed by attorneys Terence Coates and Justin Walker with the downtown Cincinnati law firm Markovits, Stock & DeMarco. It notes that one of the residents, Tina Ibel, lives just four or five houses away from one of the burnt railcars.

FOX19 NOW reached out to the Pittsburgh law firm representing Norfolk Southern for comment Friday on all the lawsuits but did not hear back. We also tried to reach a railroad spokesman.

We reached out again Monday. We received an email shortly after from a railroad media representative stating they are unable to comment on litigation.

They directed us to a statement from Norfolk Southern CEO Alan Shaw last week which includes the following statement, in addition to a new website: https://nsmakingitright.com/

“Our company will be working tirelessly every day to get East Palestine back on its feet as soon as possible. We know we will be judged by our actions, and we are taking this accountability and responsibility very seriously,” Shaw said.

Read his entire statement, more from his Saturday trip to East Palestine later in this story and all the steps Norfolk Southern has taken so far, as well as millions of dollars in assistance given to thousands of residents in this story below.

One of the initial lawsuits, filed Wednesday by the national law firm Morgan & Morgan on behalf of plaintiffs Aysia Canterbury and Lisa Sodergen, alleges the train derailment released 1.1 million pounds of the “cancer-causing vinyl chloride” into the air, “more in the course of a week than all industrial emitters combined did” in 2021.

Filed by Morgan & Morgan, this lawsuit says a mechanical defect alarm sounded on the train just before it derailed.

“An overheated wheel bearing was failing, and about to lead to catastrophe. Moments later, Train 32N derailed in East Palestine, Ohio. Fifty rail cars were derailed or damaged,” the suit reads.

Thirty-eight rail cars on an eastbound general merchandise freight train derailed just before 9 p.m. on Feb. 3, according to the National Transportation Safety Board.

As a result, a fire ensued which damaged an additional 12 cars.

There were 20 total hazardous material cars in the train consist—11 of which derailed. Here’s a list of the chemicals on board, including cancer-causing vinyl chloride and butyl acrylate, the NTSB says.

A plume of the spilled chemicals killed 3,500 fish in nearby streams, according to the Ohio Department of Natural Resources and then went into the Ohio River.

On Feb. 3, low levels of butyl acrylate were detected in the Ohio River upstream.

Ohio Attorney General Dave Yost has threatened to sue the railway last week, according to a letter his office to Norfolk Southern.

“The pollution, which continues to contaminate the area around East Palestine, created a nuisance, damage to natural resources and caused environmental harm,” Yost wrote.

Ohio Gov. Mike DeWine announced Friday morning that the chemical plume in the river from the derailment expected to arrive in Cincinnati early Sunday was “completely dissipated” according to the latest testing.

“We do believe that there’s no reason to be concerned about water from the Ohio River and there’s never really been a reason to be concerned,” he said Friday.

Still, out of an abundance of caution, Greater Cincinnati Water Works and Northern Kentucky Water District shut down water intakes on both sides of the Ohio River over the weekend. These intakes remain closed Monday.

A compound called 2-Ethyl-1-hexanol was detected upstream of water intakes belonging to both agencies, according to their news releases.

This compound is commonly used in industrial applications including for flavorings and fragrances.

Analyses of water drawn from both agencies’ water intakes have not indicated detectable concentrations of the compound, however, their releases stated.

Both departments say they will continue to collect samples at several locations along the river and make decisions in the future about when to reopen their intakes.

They are using their storage capacities to continue service until intakes are reopened.

So far, attorneys for the railroad have not officially filed responses to any of the lawsuits.

But they did deny the railway has liability in a federal court filing Wednesday related to moving one of the lawsuits its faces from state court to federal court.

“Although Defendants deny that they are legally liable for any of the claims or theories of recovery as alleged in the Complaint and further deny that Plaintiffs, or any members of the putative class, are legally entitled to any monetary or equitable relief as alleged in the Complaint, the amount in controversy here satisfies the jurisdictional threshold,” wrote one of Norfolk Southern’s attorneys, Scott Clements.

Norfolk Southern took heavy criticism, including by Ohio’s attorney general, for backing out of a town hall meeting with the community last week.

The railway’s CEO visited East Palestine on Saturday for the second time in two weeks. He met with community members, local leaders, and Norfolk Southern railroaders who call the area home.

He also spent time with the crews working around the clock at the incident site.

Shaw released the following statement Saturday:

“I returned to East Palestine today to meet with local leaders, first responders, and a group of Norfolk Southern employees who live in the area. I started the morning walking the derailment site to see our clean-up progress first-hand. We are working closely with Ohio environmental and health agencies on the long-term plan to protect the environment and the community. We are going to do the work thoroughly, completely, and safely.

“I also went to the home of one of our Norfolk Southern railroaders who lives in East Palestine, where I talked with a group of his friends and neighbors. I appreciated the chance to hear their concerns and I asked them how Norfolk Southern could help. They want to know we are going to do the right thing for their community, and I am determined to earn their trust.

“I had a series of meetings with Mayor Conaway and several community leaders, Congressman Bill Johnson, and Fire Chief Drabick, along with several of his first responders. They are frustrated by the amount of misinformation circulating about their community and are eager to show that the air and water are safe.

“In every conversation today, I shared how deeply sorry I am this happened to their home. We are going to do the right things to help East Palestine recover and thrive again.”

Norfolk Southern also has announced a $1 million charitable fund that would be available immediately.

“The company will work with state and local leaders to identify where the donations can do the most good,” Norfolk Southern said in a news release last week.

Shaw’s remarks over the weekend are the second public statement he’s given in less than a week.

While Norfolk Southern isn’t commenting on litigation, they did release the following statistics to us when we sought comment Monday morning.

To date, Norfolk Southern says its teams have taken the following steps to support East Palestine:

  • “Completed more than 552 in-home air tests in conjunction with the U.S. Environmental Protection Agency (EPA) and other governmental agencies. In-home air monitoring has not detected substances related to the incident and does not indicate health risks.”
  • “Implemented an extensive outdoor air monitoring program in the community. Thousands of data points have been collected, which continue to indicate no risk to health from incident-related substances. Air monitoring is also being conducted in the broader region outside of the Village of East Palestine.”
  • “Actively sampling the Village of East Palestine’s drinking water supply wells, drinking water system, and private wells in areas potentially impacted by the incident.”
  • “Distributed over $3.4 million in direct financial assistance to almost 2,222 families and a number of businesses to cover costs related to the evacuation. Those include reimbursements and cash advancements for lodging, travel, food, clothes, and other related items. The Legal Claims team completed seven in-home visits with residents unable to make it into the FAC.”
  • “Established a $1 million fund available immediately to the community.”
  • “After a further review of areas affected by the evacuation orders and at the request of East Palestine Mayor Trent Conaway and other public officials, the company announced on Feb. 15 that it is expanding the geographic area eligible for reimbursements for costs and inconvenience related to evacuating the region. All East Palestine residents in the 44413 zip code are now eligible. Residents should bring proof of residency with them to the Family Assistance Center.”
  • “Reimbursed the East Palestine Fire Department $220,000 to replace Self-Contained Breathing Apparatus (SCBA) air packs, which allow firefighters to breathe compressed air when responding to fires.”
  • “Provided more than 100 air purifiers for residents to use in their homes. Air purifiers have been purchased for the East Palestine municipal building in coordination with the City Manager.”
  • “Coordinated and funded cleaning and air monitoring services for the East Palestine Elementary and High Schools.”
  • “Soil excavation continues with a total of 14,620 tons of soil now staged for disposal.”
  • “We continue to dispose of the impacted water that we have removed from the site and stored in frac tanks. To date we have collected over 1.1M gallons of impacted water from the site and stored in sealed containers.”
  • “We have transported nearly 700,000 gallons of that water off-site for final disposal.”

See a spelling or grammar error in our story? Please include the title when you click here to report it.