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EAST PALESTINE -- Following last week's announcement that a $600 million settlement is pending between Norfolk Southern and class action lawsuit plaintiffs, criticism has mounted about what the agreement didn't include -- a provision requiring the railroad to fund long-term health monitoring. Residents have expressed dissatisfaction with the proposed settlement, claiming that without mandated medical monitoring, the deal lets Norfolk Southern off the hook.
However, it was a ruling in a lawsuit over a different Ohio train derailment that made such a clause unlikely.
In the early morning hours on Oct. 10, 2007, a broken rail due to a track inspector's installation of an incorrect joint bar caused the derailment of 31 cars of a CSX train near Painesville, Ohio. Much like in East Palestine, the cars careened off the tracks into a fiery heap, with nine hauling hazardous materials, including ethanol, liquefied petroleum and phthalic anhydride. The other cars carried grain, soybeans and lumber. A surrounding half-mile radius was evacuated, displacing 1,300 residents while the fire, fed by the ethanol and lumber, burned for days.
Some of those residents filed suit against the railroad -- Hirsch vs. CSX -- for damages caused by exposure to the toxic substances released by the derailment. According to court documents, the plaintiffs charged that "2,800 tons of burning material produced toxic chemicals, even from non-toxic cargo, and created a level of dioxin in their town that was significantly elevated." The Northern District Court of Ohio (the same district court hearing the Norfolk Southern case) later dismissed the cause of action when it was ruled "that any increased risk of cancer or other diseases was too insignificant to warrant the court's ordering a lengthy period of medical monitoring." The U.S. Sixth District Court later upheld that ruling.
Mikal Watts, an attorney with Erin Brockovich's East Palestine Justice, said during Monday's town hall held Columbiana to discuss the settlement with residents that the upper court's decision left proverbial hands tied.
"This was a previous derailment where a lawsuit was filed saying 'Oh my God, there was a derailment, a release of all this toxic stuff, we think it increased our risk of cancer. We want you to pay for everybody in the community to do medical monitoring,'" he said. "It was a medical monitoring cause of action. Which sounds great, but the bottom line is in the CSX case the Sixth Circuit Court of Appeals said, in effect, 'it's not enough that you had a bunch of stuff spewed out.'"
Because of the previous opinion, Judge Benita Pearson, who is presiding over the Norfolk Southern class action lawsuit, had little to no choice to dismiss the medical monitoring cause of action.
"She is duty bound to follow the precedent of the Sixth Court of Appeals and of Hirsch vs. CSX," Watts explained.
The similarities between the concerns of the CSX plaintiffs and the concerns of East Palestine residents are too great to ignore. Like the people of Painesville, the threat of dioxin -- a byproduct of combustion and a cancer-causing agent -- has weighed heavily on those living in East Palestine and surrounding areas that were exposed to not only the fiery crash on Feb. 3, 2023 but the intentional vent-and-burn of 1.1 pounds of vinyl chloride (another known carcinogen) days later. The Environmental Protection Agency (EPA) following both the Painesville and East Palestine derailments have maintained that the fires created by the crashes have no profound impacts on the environment or public health.
The CSX plaintiffs argued that TEQ measurements by hired experts showed "elevated levels at the crash site at 10.7 parts per trillion (ppt) and a range within homes in the area from 11.7 to 274 ppt" and they presented a map that " determined who in the community was likely exposed to levels of dioxin above what the EPA considers acceptable." However, the court ruled that evidence was "unreliable, speculative and subjective" and found the plaintiffs did not prove that they "were exposed to dioxin in an amount sufficient to cause a significantly increased risk of disease such that a reasonable physician would order medical monitoring."
In East Palestine, the dioxin levels have too been disputed. The EPA conducted soil sampling for dioxin levels after public pressure. Phase I Soil Sampling was performed in March of 2023 at 148 residential, recreational, commercial, and agricultural locations. The median results of that sampling were 4.8 parts per trillion (ppt). Dioxin levels were measured anywhere from 2.6 to 14 ppt in the village. February dioxin tests performed at the derailment site registered 91.9 ppt, and some independent scientists have maintained that dioxin levels in the village have been recorded at 1,900 ppt.
The EPA determined in 1989 that dioxin soil concentrations of less than 1,000 parts per trillion (ppt) were safe for residential areas and placed the threshold for industrial areas at 5,000 to 20,000 ppt in commercial and industrial soil. Anything above those numbers would trigger a cleanup and remediation. Some states set the action level as low as 50 ppt but Ohio uses the federal standard.
Ultimately, the dismissal of Hirsch vs. CSX as well as the East Palestine medical monitoring cause of action came down to a lack of causation. Causation is one of four basic elements (duty, breach, causation and damages) needed for a successful negligence claim in Ohio. Court documents in the CSX case simplified that formula.
"If Dan drops a banana peel on the sidewalk and Pete slips on the peel and breaks his hip, Pete must prove four things at trial to recover for his hip injury," Sixth Circuit Judge Danny Boggs wrote. "Number 1, that Dan should not have dropped the banana peel on the sidewalk (duty). Number 2, that he nonetheless did (breach). Number 3, that Pete's broken hip suffered because of the banana peel (causation). Number 4, that Pete actually broke his hip (damages)."
While duty and breach was obvious -- the CSW had a duty to keep the train on the tracks and it failed to do so -- a link between the dioxin created by the derailment and an increased risk of cancer was not established to the court's satisfaction. The court took it a step further, questioning if an elevated risk could be considered damage.
"What makes the present claim conceptually unique is that the plaintiffs -- though no doubt distraught from the stress of a train crash and evacuation -- have, even by their own admission, as of now not suffered any discernible compensable injury," Boggs continued. "Rather, their alleged injuries consist solely of the increased risk of -- and corresponding cost of screening for -- certain diseases that, according to plaintiffs, are more likely to occur as a result of the train crash."