EAST PALESTINE — Over 100 people who signed on to last year’s class action settlement with Norfolk Southern now say the deal meant to remedy damages caused by the 2023 derailment is nothing more than a train wreck itself.

Those class members accuse the attorneys who brokered the settlement on behalf of residents of misleading the public, hiding proof of chemical exposure and minimizing the health risks caused by the rail disaster and chemical release, according to a motion filed last week with Judge Perasron in Youngstown’s federal court.

The motion asks the court to allow 100-plus residents out of the agreement by “prohibiting enforcement of personal injury opt-ins and releases signed by movants.” The motion also asks for disclosure of all expert reports, testing data, and communications commissioned by class counsel.”

At the heart of the motion, filed by Jedidiah I. Bressman of Bressman Law, is the claim that class counsel withheld “critical expert findings about health risks to the court and to the class claimants.” The motion argues that class council not only ignored chemical experts retained by their own firms but instead presented a medical doctor – Dr. Arch Carson – during an Aug. 1, 2024 zoom meeting who told class members “that people are going to be safe in the long term” despite class council already having prior knowledge of residents who were already sick.

“While class counsel told class members that there was no contamination and there would be no long-term health effects because of the derailment, class counsel knew some class members were very sick and that their doctors were prepared to testify that their illnesses were caused by exposure to contaminants released by the train derailment,” Bressman wrote. “These class member claims are not just conjecture, their treating physicians verified in their medical records the permanency of the injury directly related to the exposure.”

Instead of disclosing that information, the motion states, that class counsel concealed it and allowed Carson, who was billed as independent third-party but later learned to be a friend of counsel, to suggest the chemical exposure was so miniscule that so was the risk of “any kinds of cancers or other health effects” related to the derailment during that zoom meeting that was meant to convince eligible class members to sign on to the personal injury component that was to pay individuals who lived or worked within 10 miles of the derailment up to $25,000.

“Defendants and class counsel concealed and misrepresented material facts that substantially interfered with the class members’ ability to fully and fairly determine whether to opt into the personal injury payment,” the motion claims.

The motivation for class counsel’s alleged misleading actions and misrepresentation was left up to interpretation but the motion revealed that the settlement “included a confidential supplemental termination agreement, which purports to grant Norfolk Southern the unilateral right to terminate the settlement if settlement class members’ participation rates trigger numerical thresholds.” In a class-action lawsuit, a supplemental termination agreement clause grants a defendant the right to back out of the agreement if not enough class members submit claims or opt in.

As far as the experts’ findings, the motion said that was used to pressure the railroad into the settlement at the risk of class counsel releasing the information.

“Class counsel appears to have used the threat of releasing plaintiffs’ experts’ reports as leverage for obtaining a settlement agreement from Norfolk Southern,” the motion states. “While that leverage appears to have benefited defendants’ and class counsel, class members are left in the dark as to the testing results and the true consequences to their health.”

It further accused class counsel of “prioritizing settlement completion over their duty to provide accurate information to class members or this court.”

Final approval of the settlement was granted by Pearson last year despite 84 objections filed against the settlement — all of which were overruled by Pearson. Those objections raised the same concerns that last week’s motion did, including claims that class counsel withheld or suppressed evidence, the personal injury payments were not high enough and the settlement did not adequately compensate class members for their damages. Pearson ruled that all class members who objected to the settlement but did not opt-out were bound by the terms of the settlement.

Five residents appealed the final approval on similar grounds and are awaiting a decision by the Sixth Circuit Court of Appeals regarding the $850,000 appeal bond they were ordered to pay in order for the appeal process to continue.

The appeal halted direct payments — up to $70,000 — per household within 20 miles of the derailment but were to have no impact on the personal injury payments which were promised within 30 days of final approval, appeal or no appeal.

However, those payments too are paused while class counsel attempts to unravel a mess left behind when Epiq replaced Kroll as settlement administrator. Kroll was removed at the request of class counsel after reportedly overpaying some class members.