Norfolk Southern to judge: Dismiss class action lawsuit over East Palestine derailment
Four months after a Norfolk Southern train hauling chemicals derailed and caught fire in East Palestine, the railroad is responding to a negligence lawsuit by asking a judge that it be dismissed.
Attorneys for the railroad have filed a 57-page motion to dismiss a complaint consolidated from 31 separate class action lawsuits filed after the February 3rd derailment and subsequent decision to initiate a “controlled burn” of leaking chemical tank cars.
In addition, the railroad company asks U.S. District Court Judge Benita Pearson to strike the plaintiff's request for punitive damages.
In the filing, attorneys for the railroad claim that the first car to derail did not belong to Norfolk Southern and that Norfolk Southern did not construct the wheel bearing that allegedly “overheated” and “caused the train to derail.”
Characterizing claims made in the class action as “vague and conclusory”, Norfolk Southern says it was conducting business under federal requirements when it was transporting vinyl chloride on the train that jumped the tracks in East Palestine.
Noting that the lawsuit seeks to represent half a million people covering 3,000 square miles in three states within a 30-mile radius around the derailment, Norfolk Southern questions the conclusion that “smoke and particulate plume somehow uniformly traveled 30 miles in every direction, despite, for example, varying atmospheric conditions; and that the traveling plume caused unspecified economic loss, property damage, and increased health risk.”
Calling the complaint, “strikingly—and fatally—threadbare,”, railroad attorneys are critical of claims that the derailed train had too many cars and that Norfolk Southern improperly organized and loaded those cars, stating that such concerns are governed by the Surface Transportation Board.
“They (plaintiffs) also allege, without elaboration, that Norfolk Southern violated dozens of duties, some of which reflect duties imposed by federal regulations. But Plaintiffs make no attempt to explain with plausible factual allegations how Norfolk Southern violated any purported federal regulation or duty imposed by federal regulations,” Norfolk Southern stated in its motion to dismiss.
The motion also addressed the plaintiff's claims that the railroad failed to adequately inspect and monitor the so-called “wayside detectors” or “hot-box detectors,” which “alert operators to equipment failures while the train is in operation.”
Norfolk Southern said that Railroad Freight Car Safety Standards do not require the use of hot-box detectors.
Using the term “generic” to label allegations that Norfolk Southern was negligent in transporting hazardous chemicals, the railroad’s motion says claims of negligence, gross negligence, nuisance, and liability claims are preempted by federal law.
Norfolk Southern says the class action does not specifically state how or in what ways the property was harmed, calling them “bare allegations of property damage without factual support of what that damage is”.
Norfolk Southern says the complainants failed to show that the railroad acted maliciously, intentionally harmed the plaintiffs or exposed their bodies or properties to unsafe levels of contaminants.
The railroad denies allegations that they failed to preserve evidence of the incident, claiming that the train’s cab surveillance video was lost because of automated deletion protocols.
Norfolk Southern’s motion enumerates some of the efforts it has undertaken to assist people in the area, including providing $16 million dollars in financial assistance to residents and businesses through its Family Assistance Center, as well as a commitment to creating a healthcare fund, a property fund for homeowners who sell their homes, and a water-testing fund for East Palestine and surrounding communities.
The motion to dismiss also discussed the railroad’s effort to remediate the derailment site under the oversight of the Environmental Protection Agency.
“Norfolk Southern deeply regrets the impact this derailment has had on people and businesses in East Palestine and the surrounding area. Norfolk Southern is committed to making things right. At the same time, Norfolk Southern must defend itself against unfounded accusations and legally deficient claims. That is the case here,” Norfolk Southern state in its motion.
As of Tuesday morning, lawyers representing the plaintiffs had not responded to the motion to dismiss.