YOUNGSTOWN Eight residents of East Palestine and nearby areas who opted out of the $600 million Norfolk Southern derailment settlement have filed a lawsuit against the railroad, seeking damages for the hazardous train derailment that occurred on Feb. 3, 2023.

The complaint, filed in the U.S. District Court for the Southern District of Illinois and subsequently transferred to Ohio’s Northern District, alleges that the company's negligence and involvement in "abnormally dangerous activities" led to significant harm to the plaintiffs' properties and well-being.

The plaintiffs — Rebecca Duncan, Jeffrey Hays, Michelle Hays, Bryan McCall, Steve McCall, Mary Jo Mercer, Helen Parker and Morgan Parker — are homeowners and residents who claim they were impacted by the derailment and the subsequent release of toxic chemicals into the environment. They claim to have suffered direct and substantial damages, including property devaluation, out-of-pocket expenses, and emotional distress.

The lawsuit states that Norfolk Southern freight train 32N, traveling from Madison County, Illinois, to Conway, Pennsylvania, derailed due to an overheated wheel bearing on the 23rd rail car. According to the complaint, the train's hot bearing detectors showed a significant increase in temperature, with one reading reaching 253 degrees Fahrenheit above ambient temperature, a level considered "critical" by Norfolk Southern's policies. Video footage reportedly showed sparks from the wheel bearing before the derailment.

The complaint alleges that about 40 train cars derailed, with approximately 11 carrying "abnormally dangerous and/or ultrahazardous chemicals." The chemicals, identified as carcinogens by the Environmental Protection Agency, include vinyl chloride, polyethylene, ethylene glycol monobutyl ether, ethylhexyl acrylate, isobutylene, benzene, and butyl acrylates.

The plaintiffs assert that Norfolk Southern was aware of concerns regarding the train's excessive length and weight — approximately 151 cars, 9,300 feet long and 18,000 tons — and that it was "backloaded" with heavier tanker cars at the rear. The lawsuit suggests the company knew of increased risks but "intentionally acted – and instructed others to act – in a manner that violated its own internal safety or operating procedures."

Furthermore, the complaint claims that Norfolk Southern failed to report the derailment to federal authorities for two hours, hindering emergency response. It also alleges the company did not promptly inform first responders of the hazardous contents, which prevented them from extinguishing the fire and allowed it to spread.

A major point of contention in the lawsuit is the "controlled release" and "controlled burn" of vinyl chloride on Feb. 6, 2023. The complaint states that Norfolk Southern intentionally blew holes in derailed cars containing vinyl chloride to drain the chemical into a trench, where it was then ignited. This action, according to the plaintiffs, created a large, mushroom-shaped cloud of thick black smoke that dispersed toxic chemicals further into the environment.

The lawsuit argues that Norfolk Southern "failed to investigate possible alternatives" to the controlled burn, choosing a course that would allow the railroad to reopen quickly, "regardless of the consequences to Plaintiffs and the East Palestine community." The complaint highlights that an EPA monitor in Youngstown, Ohio, more than 20 miles away, detected a five-fold increase in fine particulate matter during the controlled burn.

The plaintiffs are pursuing claims of negligence and strict liability. Under negligence, they argue that Norfolk Southern failed in its duty to safely operate, maintain, and inspect its railway and trains, especially given the hazardous materials being transported. They allege failures in monitoring malfunctions, implementing emergency procedures, properly staffing, and adequately warning those in danger.

Under strict liability, the plaintiffs contend that transporting these toxic and hazardous materials is an "abnormally dangerous and/or ultrahazardous activity." They argue that Norfolk Southern is strictly liable for the damage because the harm suffered was a foreseeable result of such activities, regardless of fault.

The lawsuit seeks compensation for property damage, out-of-pocket expenses, loss of enjoyment of property, diminished property value, inconvenience, and emotional distress. It also asks for punitive damages, alleging that Norfolk Southern acted "maliciously, with aggravated or egregious fraud, and/or intentionally disregarded Plaintiffs’ rights."

The plaintiffs noted that they opted out of a separate class action settlement offered by Norfolk Southern.

The railroad has yet to file a response to the complaint. 21 News has reached out to Norfolk Southern for comment and were told the company had no comment due to pending litigation.