Ohio Train Derailment & Workers’ Rights

How injured railroad workers can protect their rights after an accident

On February 3, 2023, a Norfolk Southern freight train pulling 141 loaded rail cars approached the small town of East Palestine in northeastern Ohio (population 4,761). Among these rail cars were 20 filled with vinyl chloride and other toxic chemicals.

In the afternoon, for reasons not yet clear, at least 50 cars were derailed. There is speculation that it was caused by a mechanical malfunction of an axle on one of the cars. A 3-man crew was on board consisting of the engineer, a conductor and a conductor trainee.

Some of the vinyl chloride-laden cars that were not breached posed a risk of explosion. So the state directed emergency crews to conduct a controlled burn of the spill, which released hydrogen chloride and phosgene into the air. Residents of East Palestine were evacuated.

What is vinyl chloride?

Vinyl chloride is a colorless industrial chemical that’s used to produce polymer polyvinyl chloride (PVC). PVC is a hard plastic resin that is used to make products like pipes, packaging materials, and wire and cable coatings. It’s stored and transported as a liquid and is highly flammable—posing a high risk of explosion.

The National Cancer Institute reports that vinyl chloride is a carcinogen linked to the following:

• Liver cancer
• Brain cancer
• Lung cancer
• Leukemia
• Lymphoma

Vinyl chloride is hazardous to humans if vapors are inhaled or if it contaminates drinking water or food. However, PVC itself has not been associated with an increased cancer risk.

The symptoms of vinyl chloride illness include:

• Nausea
• Dizziness
• Headache
• Cardiac arrhythmia (abnormal heart rhythm)
• Fatal respiratory failure

When it’s burned, it gives off hydrogen chloride and phosgene in the air. Phosgene is known to be highly poisonous. Hydrogen chloride is corrosive to lungs and other human tissue.

How common are train accidents and derailments?

People may think of trains as a safe mode of transportation, but accidents and derailments happen far more often than you might imagine.

In fact, according to data from the Federal Railroad Administration, around 1,000 train derailments happen in the U.S. every year. Additionally, in 2022 alone, almost 900 people died and 5,616 were injured in the U.S. in train-related accidents.

Below are some of the top high-profile train derailments in recent history:

• Amtrak train derailment in Montana. On September 27, 2021, an Amtrak train derailed in Joplin, Montana, killing 3 people and leaving dozens more injured. The train was traveling at almost 80 mph when its emergency brakes were activated for reasons unknown. More than 2 dozen passengers filed lawsuits against Amtrak and BNSF Railway for physical injuries and emotional trauma.
• CSX train derailment in Maryland. On November 21, 2020, a CSX train derailed in the town of Bowie, Maryland. Of the 109 rail cars, 21 derailed, none of which contained any hazardous materials. The incident led to an investigation by the Federal Railroad Administration and lawsuits against CSX and other parties.
• Union Pacific train derailment in Oregon. In June 2016, a Union Pacific train carrying crude oil derailed in the town of Mosier, causing a large fire that prompted the evacuation of nearby residents. Of the 94 rail cars, 16 derailed, containing 448,000 gallons of oil. Reportedly, only about 47,000 gallons of oil leaked, much of which went into a wastewater treatment unit, helping the city avoid a total river cleanup. Union Pacific estimated the costs of the accident to be $9 million, with the majority of the costs going toward cleanup and environmental remediation efforts.
• Amtrak train derailment in Philadelphia. In May 2015, an Amtrak train traveling from Washington D.C. to New York City derailed in Philadelphia, killing 8 people and injuring more than 200 others. The incident led to an investigation by the National Transportation Safety Board and a number of lawsuits against Amtrak and other parties, in which Amtrak agreed to pay $266 million to victims and their families. Train engineer, Brandon Bostian, was put on trial for involuntary manslaughter and reckless endangerment but was later acquitted of all charges.
• CSX train derailment in West Virginia. In February 2015, a CSX train carrying crude oil derailed and caught fire in Mount Carbon, West Virginia, causing the evacuation of nearby residents. Of the 109 rail cars, 27 derailed. According to a federal investigation, the incident stemmed from a crack in a broken rail car that was overlooked during 2 separate inspections. The incident led to a number of lawsuits against CSX and other parties, as well as fines against CSX and a contractor for failing to find the rail defect.
• The Montreal, Maine and Atlantic Railway (MMA) train derailment in Quebec. In July 2013, a runaway MMA train carrying crude oil derailed in Lac-Mégantic, Quebec, causing an enormous explosion and fire that killed 47 people and destroyed much of the town’s center, including the public library. The fire was so devastating that many of the victims could only be identified through their dental records. The incident led to a series of lawsuits and criminal charges against the train engineer and other parties.

Liability after the Ohio train derailment

Ohio Governor Mike DeWine promises that Norfolk Southern will be held accountable for the accident. Currently, the National Transportation Safety Board is investigating the derailment.

Norfolk Southern is already facing several class action lawsuits. Residents of East Palestine may have a cause of action against the railroad company as well as manufacturers of train equipment that contributed to the derailment.

Employees of railroad companies who are injured on the job must seek compensation under the Federal Employers Liability Act (FELA), which is their exclusive remedy. Injured employees in industries other than railroad companies can seek compensation under the workers’ compensation laws of their state, which is their exclusive remedy.

How the Federal Employers Liability Act helps injured rail workers

The Federal Employers Liability Act, 45 U.S. Code § 51, sets up a system for railroad employees and their families to receive compensation if an employee is injured on the job. For railroad workers, FELA serves as a substitute for a state workers’ compensation program.

Any railroad employee injured in the Norfolk Southern train derailment (or any other train accident) may be eligible to file a claim under FELA.

FELA compensation includes the following:

• Medical and hospitalization expenses
• Recovery of past and future lost wages
• Pain and mental suffering
• Permanent injury, deformity and disfigurement

FELA differs from workers’ compensation in 3 major respects:

• Fault. Workers’ compensation is a no-fault system where a claimant does not have to prove their employer’s fault. A FELA claimant must prove that the railroad employer was negligent or otherwise at fault.
• Compensation. A FELA claimant may claim benefits not allowed under workers’ comp. For example, FELA workers can claim damages for pain and suffering, which is not permitted under workers’ comp. Also, workers’ compensation benefits are capped, while FELA damages are not.
• Time limit to file a claim. FELA claims are also generally subject to a longer statute of limitations than workers’ comp claims. FELA claims must be filed within 3 years after an accident. The time limit to file for workers’ compensation varies by state but may be as soon as 1 year following an accident.

How workers can prove fault after a train accident

FELA requires railroad company employers to maintain workplace standards. Failure to meet those standards could be proof of the employer’s negligence. The standards include the following:

• Provide a safe workplace.
• Exercise reasonable care for employee safety.
• Provide safe equipment, tools and safety devices.
• Prescribe safe methods for performing work.
• Provide necessary help.
• Inspect the workplace for hazards.
• Enforce safety rules.

How workers’ compensation compares to FELA

Workers’ compensation is a system of no-fault insurance that protects workers who are injured or contract an illness on the job. Each state administers its own workers’ compensation law.

An injury or illness is covered in Alabama only if it “arises out of and in the course of employment.” Also, a claimant is only covered if they’re an employee. Independent contractors do not qualify.

In Alabama, all employers with 5 or more employees must provide the required workers’ comp benefits.

Those benefits include:

• Replacement of a portion of lost wages
• Medical expenses, including rehabilitation services, medication, hospitalizations, surgeries and medical equipment
• Death benefits to certain dependents

Generally, a disabled employee will receive two-thirds of their average weekly wage during the duration of their disability. The maximum duration of payments depends on the severity of the injury or illness. They are classified as temporary or permanent and partial or total disability. Partial disability benefits are paid for up to 300 weeks. Total or permanent disabilities have no duration limit in Alabama.

Claims against 3rd-parties

While an employee’s exclusive remedy against an employer is provided under FELA or workers’ compensation, an employee may also be able to file a personal injury lawsuit against a 3rd party if their negligence was the proximate cause of the worker’s injury.

For example, in the case of the Ohio derailment accident, if the derailment was caused by a faulty axle on one of the cars, then railroad employees, East Palestine residents, and others might also have a claim against the manufacturer.

Contact an Alabama workers’ compensation attorney

At Nomberg Law Firm, we believe all workers are entitled to a safe and healthy work environment. Railroad employees and workers in other industries who suffer an on-the-job illness or injury in Alabama should contact the experienced attorneys at Nomberg Law Firm to help with your FELA or workers’ compensation claims.

Our firm also handles personal injury cases, so we can help you explore every avenue possible to ensure you recover maximum compensation. We have extensive experience fighting for injured Alabama workers to get them the money they deserve.

Contact us today for a free, no-obligation consultation.