‘There Are Tracks Everywhere’

Train derailments are more common than people think. In 2023 alone, there were nearly three derailments per day in the U.S., with roughly 600 associated casualties for the year.

“There are tracks everywhere,” says Jayne Conroy, a partner at New York’s Simmons Hanly Conroy, “and trains filled with toxins traveling at high rates of speed.”

Most derailments happen out of the public eye—away from people, towns, schools and businesses—which is often why they’re not talked about. That, however, wasn’t the case on Feb. 3, 2023, when a Norfolk Southern freight train went off the rails in East Palestine, Ohio, dumping 100,000 gallons of toxic chemicals in a town of fewer than 5,000 people.

The morning after the accident, Conroy, who’d made a name for herself as co-lead in the nationwide opioid litigation, was contacted by attorneys for several East Palestine plaintiffs, and she filed on their behalf. Around the same time, Seth Katz of Colorado-based Burg Simpson was also filing. Since the two had worked as co-counsel before—including the gadolinium NDL in Ohio—they joined forces.

“We have great respect for one another,” Conroy says, “and the skillsets each of our firms bring to the case. Seth’s extensive background in complex litigation, especially in the transportation sector, made him a valuable piece in getting this case to a solution in such a timely manner.”

The presiding judge quickly consolidated all of the class action plaintiffs under Katz and Conroy, as well as Mike Morgan of Morgan & Morgan in Orlando, Florida, and Beth Graham of Grant & Eisenhofer in Wilmington, Delaware. “At the hearing,” Katz says, “we presented the court with a very strong team with a deep bench and a plan that would bring fair relief to those impacted in as speedy a timeframe as we could.”

The catastrophe was avoidable and compounded by poor decisions made after the derailment.

First, Katz and Graham had to prevent the spoliation of evidence.

“We started speaking to people, hiring experts, sampling soil, and coordinating with Jayne and her team before [Norfolk Southern] destroyed the cars and the site,” Katz says.

Conroy, who visited East Palestine days after the accident, found a scene out of a post-apocalyptic movie. “An overturned tanker and emergency vehicles in the center of town,” she says. “Pets running around a moldering pool of stuff. It was a frightening, otherworldly scene.”

Their case was bolstered by security footage from a business 20 miles away, as well as video from a Ring doorbell camera near East Palestine that showed fire emanating from beneath the cars piled up in the center of town. These burned for several days until the defendant detonated them on Feb. 7 in a questionable process known as “vent and burn.”

“Every news outlet covering it [showed] a nuclear cloud type of explosion,” Conroy says. “You could tell people you were working on the derailment case, and everyone could form that picture in their head—of a cloud over the city.”

Conroy and Katz sought an aggressive discovery schedule and early trial date so they could get relief to the community. But that presented its own challenges.

“We had a discovery cutoff that resulted in us taking four to five depositions in three cities almost every day from December 1 to the end of February,” says Katz. “We had to put together a team that would go to Norfolk Southern, the rail car owners, and the operators of the train—all of it happening at once—to make sure the community got this case moving quickly.”

This urgency was necessitated by the fact that the affected parties, including workers and those that had been forced to leave their homes and live in hotels, were suddenly dealing with a personal reality that had changed overnight. “A lot of the families are multigenerational,” Katz says. “Their parents were born and raised in East Palestine as were their grandparents and great-grandparents. This was more than their house. It was their home, their community.”

To build their case, Conroy and Katz’s team did considerable environmental testing on the ground, air and water, while assessing the impact of the plume of chemical smoke, how far it had spread, and where it had deposited toxicity into the soil.

Much of that information came out during depositions with the Norfolk Southern CEO, the contractors hired to detonate the cars, and with internal people at the railroad signal desk in Atlanta. The depositions and documents collected over the course of the case were “eye-opening,” Conroy says.

“The catastrophe was avoidable and compounded by poor decisions made after the derailment concerning the burning tanks,” she says.

Going up against a company like Norfolk Southern meant navigating a significant protective order and facing off against attorneys from WilmerHale, one of the largest law firms in the country. That necessitated precise coordination. “If we’re not working hand in glove—even at different firms—Norfolk Southern would have been able to exploit that,” Katz says.

In the end, the pair was able to complete discovery much more quickly than in most class actions, which tend to go on for years.

Over months of mediation with a retired federal judge, the parties arrived at a $600 million preliminary settlement on behalf of plaintiffs living within a 20-mile radius of the accident. It was preliminarily approved by the court in May, only 15 months after the East Palestine crash, with a final approval hearing scheduled for September. “This is likely the largest railroad-related settlement in history,” says Conroy.

“The public nature of the derailment made this much different than the average class action,” Katz says.

Of course, there are still tracks everywhere. Did the settlement do anything to set up guard rails to prevent future East Palestine disasters?

“This was a civil lawsuit, so we don’t have the authority to craft stricter regulations,” Conroy says. “But we do hope that the discovery and testimony taken in the case will contribute to safer tracks and trains throughout the country, and more transparency concerning the contents of train cars.”

“It’s clear from the recent National Transportation Safety Board public hearing and its written findings and recommendations that discovery conducted in the class action suit—and the information uncovered by our team—was relied upon by the NTSB,” Katz adds. “Hopefully the NTSB can use that information to effectuate change that will enhance rail safety across the country.”