Victims of Train Derailment and Chemical Spill Permitted to Proceed with Class-Action Certification

By: Christopher J. Hoare, Esq.

On November 30, 2012, a southbound Conrail freight train, consisting of two locomotives and 82 cars, derailed as it crossed the East Jefferson Street Bridge. Six of the cars derailed, plunging four into the frigid waters of the Mantua Creek. One of the tankers ruptured, spilling approximately 20,000 gallons of vinyl chloride into the creek and air. Shortly thereafter, the Borough of Paulsboro declared a state of emergency, and residents were instructed to shelter in place or evacuate.

Individual lawsuits began to be filed. On April 13, 2013, the residents and business owners affected by the evacuation consolidated their claims and filed a class-action in the Superior Court of New Jersey, Gloucester County, against Consolidated Rail Corp., later adding CSX Transportation and Norfolk Southern Railway in their First Amended Complaint. A request was made for certification of two subclasses: one for those who incurred expenses related to the evacuation, such as hotel costs, and another for those who suffered damages due to interference with business, such as lost wages or sales.

Plaintiffs’ allege that the freight train in question proceeded across the bridge despite the presence of a red warning light indicating that the bridge was not prepared to safely accommodate rail traffic at that time. Further, plaintiffs allege that defendants were aware prior to the accident that the bridge was deficient, yet took no action to remedy or repair the problems.

Plaintiffs submit that many of them experienced acute symptoms in the wake of the incident, including coughing fits and other physical symptoms, due to exposure to the chemicals that had leaked from the tanker. The suit also indicates plaintiffs’ concern that exposure to the chemical places them at greater risk for future illness, including cancer. Lastly, plaintiffs’ claim that their properties have suffered loss in value, and assert other economic damages, as a result of defendants’ actions.

In November 2013, defendants filed motions to deny class-action status, arguing that ascertaining a class would require separate, complicated proof hearings, which would run counter to the purpose of a class-action certification. This argument was rejected by U.S. District Judge Robert Kugler:

The area affected by the chemical spill may be shown by discovery to be discrete, the applicable time frame is well established in the pleading, and purported class members either resided or did business within delineated areas or they did not.

Judge Kugler noted that through such records as plaintiffs’ addresses and officially sanctioned evacuation zones, factual findings could be made regarding who was affected by the spill and its aftermath. Defendants’ motions were thus dismissed, and plaintiffs’ motion for class-action status allowed to proceed.