Be Prepared… Amtrak Train 188 Derailment

By Vincent T. Cieslik, Esq.

Shortly after 9:30 pm on May 12, 2015, Amtrak Regional Train #188 left the tracks on a curve in the Port Richmond section of Philadelphia, north of 30th Street Station.  Amtrak and emergency response personnel rushed to the late-night accident scene and the nightly news reported the disaster in real time as spot lights and ambulances rushed to the scene to aid the injured.  The next morning, rescue crews still searched for missing passengers, while medical teams at area hospitals treated the wounded.  Members of the National Transportation Safety Board descended on the location to begin what was believed to be a comprehensive investigation of the cause for the accident.  NTSB’s task would be to determine what degree human error played a role in the crash, whether the train and the transportation system failed, and whether safety protocols could or would have prevented the disaster and the loss of 8 lives.  Soon after the accident, the NTSB had determined that shortly before it left the rails, the train was traveling 106 mph on a curve rated at 50 mph.

Quietly behind the scenes, different teams also began their behind the scenes evaluation of the matter.  Plaintiff’s counsel skilled in representing injured people in high stakes personal injury lawsuits quickly mobilized to sign up the injured and began working the inside contacts to gather information on the cause of the accident, no doubt armed with their own transportation or locomotive experts even though no lawsuits had yet been filed.  While the wreckage still lie on its side in the train bed, the plaintiff’s lawyers were scrambling to ascertain the facts as to what occurred, contacting family members of dead or injured passengers, and to be prepared to immediately file suit.  This is not a cautionary tale, it is a routine that has played itself out in numerous instances throughout our recent history nationwide and especially in Philadelphia, home of one of the most plaintiff-friendly state courts in the U.S.: the Philadelphia Court of Common Pleas.

Train 188, bound to New York from Washington with 238 passengers and five crew members aboard, had left 30th Street Station minutes before the accident, which occurred near a curve at Wheatsheaf Lane and I-95.  In Philadelphia the sophisticated plaintiff’s personal injury practitioners do not wait long before mobilizing to evaluate the case, and to immediately file suit. 

Although Philadelphia’s Mayor Michael Nutter first indicated he would not “speculate” about the cause of the crash, shortly thereafter on the national cable television, CNN’s The Situation Room, Nutter did just that, speculating that “clearly” it was “reckless in terms of the driving by the engineer.”  Questions still abound as to the cause of the crash, with local witnesses reporting that they saw a “blue flash” or a series of flashes right before the train left the tracks.  SEPTA itself reported that “something” had hit the front window of one of their other trains, and that something may have hit Train 188 as the cause of the crash.  While details are still being released and NTSB evaluates the train data and blood test of locomotive engineer Brandon Bostian (who has so far failed to recall accident details), plaintiff’s counsel have already published press releases and blogs detailing accounts of former railroad workers with intimate knowledge of the inner-workings of Amtrak on issues of safety, performance, and with facts (and speculation) about what occurred that night.   Plaintiff’s counsel will not be speculating about the cause of the accident, about wild theories of projectiles, and to be sure, they will be focused on the main issues of Amtrak’s liability, that is whether the railline should have installed safety protocols on the southern system already in place on the northern rails due to Congressional mandate.  Also at issue will be a legislative cap on damages, $200M, with arguments over whether certain types of claims may not be covered by the cap, as to whether the cap itself is constitutional, and question of whether the federal government will “do the right thing” and exceed the cap or Amtrak has the right to shield itself from excess liability by law.

Because the train was northbound and had already passed through Philadelphia on its way to New York City, he said, it was likely that most passengers were either from Washington, New Jersey, or New York.  One would presume then, that the expected lawsuits would be filed in those states where the plaintiff’s reside.  However, in this case it should be expected that the lawsuits will be filed in state and federal courts in Philadelphia which are known for higher verdicts and as a result, higher settlement values than the matters filed in New Jersey, New York, or Washington D.C.

For insurers and large corporations, the ability to respond quickly in the case of disaster or accident could be the key to maintaining an even playing field.  Having a defense team with immediate access to their own liability experts can often assist the defense from the beginning, in an attempt to be fully aware of the facts and issues as they develop.  From a defense point of view, the ability to have defense counsel and a defense expert review the case as it develops from the beginning (not after the investigation is closed), review the evidence including vehicles or machinery right after the crash, could prove crucial to the defense and the ultimate determination of liability.  In high stakes litigation our attorneys get involved right away.  We recommend that insurers and their insureds retain counsel immediately, to assess the accident and the facts in real time, in order that the client may be best prepared for imminent litigation and to maintain as even a playing field as possible, with plaintiff’s counsel which we know are doing the same.

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