EAST PALESTINE A federal judge has given attorneys for East Palestine train derailment victims and the defendant, Norfolk Southern Railway Co., one week to respond to allegations that the landmark $600 million class action settlement reached more than a year ago was secured through fraud and concealment.

The move follows a filing last week by a group of class members who opted into the personal injury portion of the settlement, alleging that their own legal representatives, referred to in court documents as Class Counsel, intentionally hid crucial information regarding health risks.

The development sets the stage for the first detailed defense from the attorneys who negotiated the settlement and from Norfolk Southern, nearly a year after the court granted final approval to the agreement.

The motion, filed on behalf of class members by attorneys Jedidiah I. Bressman and David A. Bressman, contends that the Final Approval Order, entered on Sept. 26, 2024, should be nullified.

The class members, who include dozens of individuals and families living in the affected area of the Feb. 3, 2023, derailment, assert that their attorneys have violated their ethical duties by concealing "critical expert findings" about health risks and making material misrepresentations to both the court and the class claimants.

The allegations focus specifically on the "voluntary exposure personal injury supplement" portion of the settlement, which provided payments to individuals who signed a release of their personal injury claims against Norfolk Southern.

The dissenting class members argue they were induced to sign these releases for "inadequate" payments because their own lawyers withheld scientific evidence that documented the long-term health dangers associated with exposure to chemicals released after the derailment, including vinyl chloride.

The court filing alleges that some class members had "documented permanent injuries diagnosed from their treating physicians." Despite this, they claim, Class Counsel encouraged them to accept payments that did not account for the full severity and future scope of their conditions, which those seeking dismissal of the settlement attribute to the alleged concealment of expert reports and testing data.

One example included in the court documents is Austin Druckenbrod, who signed an Individual Settlement and Final Agreement to Release Personal Injury Claims in August 2024. The filing detailing his claims notes that he suffered physical injuries requiring extensive medical treatment and that his claim summary indicated he was seeking compensation for both physical and medically diagnosed mental injuries.

The filing asserts that a jury could award Druckenbrod substantially more than the settlement payment, given the scope of his documented injuries and the severity of the incident.

The attorneys for the dissenting class members are seeking several remedies from the court, including relief from the original settlement, prohibiting the enforcement of the personal injury releases and opt-ins signed by the individuals making the current motion, and ordering the mandatory disclosure of all expert reports, testing data, and communications related to the health risks.

The dispute further complicates the already complex litigation that followed the derailment. The initial derailment resulted in a fire and the venting and burning of toxic chemicals, leading to the temporary evacuation of thousands of residents near the Ohio-Pennsylvania border.

The final approval of the $600 million settlement, which resolved all class claims for property damage, personal injury, and environmental cleanup, was seen at the time as a significant step toward compensating the community. However, the current filing suggests a fundamental breakdown in the attorney-client relationship for a segment of those who were impacted by the derailment, raising questions about the fairness of the injury compensation process.

Norfolk Southern has signaled its intent to oppose the motion for relief sought by those who filed the most recent allegations.

Judge Pearson is permitting the attorneys who engineered the settlement and Norfolk Southern to submit longer than usual briefs responding to the complaint.  

The initial settlement, approved nearly a year before the current challenge, was intended to cover all class members within a 20-mile radius of the derailment site, except those who chose to opt out. The motion for relief specifically targets the personal injury aspect of the agreement, which required individuals to sign a release for exposure-related injuries.

Attorneys representing the dissenting class members assert that the alleged concealment of expert information prevented class members from making an informed decision about waiving their rights to pursue separate litigation for their health issues. Their memorandum concludes that the "misconduct fundamentally undermines the integrity of the settlement process and warrants relief."

The Oct. 10 deadline is now a significant date in the ongoing legal saga, as the court and the community wait for the full response to the claims that the fairness of the settlement process was compromised.

The responses from Class Counsel and Norfolk Southern are expected to address the specific assertions of concealment and fiduciary breaches in detail, providing the court with the necessary arguments to assess the validity of the class members’ request to overturn a portion of the final judgment.

In response to a request for comment from 21 News, Norfolk Southern issued the following: 

"We appreciate your outreach. We don't have any comment to offer beyond what we will be filing in our opposition to the motion by October 10. Given your interest, we will share that response for your team when it is filed."