YOUNGSTOWN, Ohio - Following a $600 million settlement, Norfolk Southern switched positions from defendant in an explosion suit to plaintiff seeking contribution from three sources.
The railroad’s April 9 settlement with Ohio residents preserves its right to pursue a third party complaint against GATX, its subsidiary General American Marks, and Oxy Vinyls.
Jayne Conroy in the New York City office of John Simmons’s firm in Alton acted as one of four leaders who managed the litigation for the Ohio residents.
Railroad counsel Alan Schoenfeld sued them at U.S. District Court last July, five months after the disaster at East Palestine, Ohio.
Schoenfeld claimed the federal railroad administration identified multiple discrepancies between approval documents and actual characteristics of vinyl chloride tank cars.
He sued General American as owner of Car 23, which derailed when a bearing failed.
He claimed modern cars like Car 23 have roller bearings that transfer the weight of the car and its lading to the wheels.
He added that they allow the axle to rotate under the load while minimizing rotational friction and are capable of overheating.
“Industry practice is to prevent railcars from sitting stationary for long periods because grease separation may occur, which reduces the amount of lubrication around the bearings and may impact functionality,” he wrote.
“According to car movement data, Car 23 had few shipments and low mileage over the prior decade,” he added.
Schoenfeld claimed the railcar was stationary for 565 days ending in 2018 and 206 days ending in 2019.
“When a bearing sits for extended periods of time especially in heat, rain, or extreme weather, the grease in the bearing can separate and degrade the bearing,” he wrote.
Schoenfeld sued Oxy Vinyls as shipper of Cars 26, 27, 28, 29 and 53, and as owner of Cars 27, 28, and 53.
He claimed it offered the cars for shipment without complete approvals and certifications.
He claimed Car 26 had discrepancies between its construction certificate and its actual characteristics.
He added that modifications to Car 27 were not properly documented or approved, including a change in material from carbon steel to stainless steel.
Schoenfeld sued GATX as owner of Car 29.
He claimed the railroad administration didn’t approve Car 29 for vinyl chloride which has special provisions.
He added that a valve on Car 29 was replaced without approval.
“Ultimately it is the shipper that is responsible for ensuring that the equipment used is compatible with the lading and can safely contain the commodity,” he wrote.
Schoenfeld claimed while railroads inspect tank cars from the ground and ensure proper papers, they rely on certifications of shippers that equipment and lading are compatible.
He claimed Norfolk Southern responded quickly and comprehensively by cleaning up, restoring waterways, and providing millions of dollars in assistance.
“Norfolk Southern is committed to being there for East Palestine and the surrounding communities for the long haul and nothing in this third party complaint changes that,” he wrote.
The settlement fit the policy by satisfying sympathetic plaintiffs and turning their case into one that won’t make a dime’s worth of difference in East Palestine.
Plaintiffs expect to file a motion for preliminary approval by April 19.