Congress and AmTrak believe that the total exposure for the eight persons killed and more than 200 injured in the Philadelphia Derailment that occurred when its train was traveling more than 100 mph into a curve is limited to a total of $200 million. But we’re only seeing the beginning of the litigation.
The first lawsuit was filed on May 14 by a dispatcher who suffered broken bones and traumatic brain injury when he was tossed around the coach as the speeding train left the tracks. He and his wife are seeking $150,000 each – for starters, at least.
One reason that dispatcher Bruce Philips and his wife contacted a lawyer so soon is because under the Federal Employers Liability Act (FELA), as a railroad employee, he is not covered by workers’ compensation. However, once he has proved that the railroad was “legally negligent,” he is entitled to full compensation – which can be several times greater than amounts under state workers’ comp for other employees.
And what of the other passengers who were injured and families of those who were killed?
Since the Philips filed their suits, four more victims have come forward. These include two tourists from Spain and a Brooklyn businessman. One of the tourists came close to losing an arm, while the business executive suffered broken ribs and torn knee ligaments as well as having several teeth knocked out. Another twenty are still in the hospital – and more than half of them remain in critical condition. It is a given that as these victims recover, more lawsuits will be filed.
There’s a problem. Ongoing medical care and therapy for these victims could continue for years and run into the millions of dollars. This does not take into consideration the compensation for pain and suffering to which they are entitled, nor punitive damages against the railroad itself. Given these facts, will $200 million cover it?
That’s the arbitrary cap that Congress placed on railroads’ liability for a single accident back in 1997. This figure has never been adjusted for the manipulative devaluing of our currency over the years, and is not contingent on the number of victims or the severity of their injuries. What this means is that, under the law as it now stands, the courts will have to decide how to divide this pie among the plaintiffs – even if the collective costs of their injuries and losses exceed $200 million.
And according to executive director Joanne Doroshow of the New York Law School Center for Justice & Democracy, that $200 million is a very lowball figure. Ms. Doroshow told Bloomberg that “in a mass casualty situation like this…it is way too low…medical injuries alone could exceed $200 million.”
Done in the name of “tort reform,” the official explanation for the $200 million limit on court awards was to discourage “frivolous” lawsuits. The real reason is that railroads at the time were losing money. Instead of allowing the Great Almighty Free Market do its thing, Congress, in its usual hypocrisy, came up with the cap as part of a socialist-style bailout.
At the same time, Congress has continually blocked funding for safety technology that would have helped to avert the recent tragedy.
Currently, the legal community is mobilizing for what is likely to be a long and bitter war for the rights of the victims. The injury litigation will be only one of the fronts in this conflict. Attorney Fred Levin’s law firm served as one of the counsel in the national litigation against AmTrak in the “Sunset Limited” train crash in Bayou Canot, Alabama which resulted in 47 deaths and 103 injured. Mr. Levin says that legal challenges to the $200 million cap on damages artificially placed by Congress will definitely be challenged on Constitutional grounds, and likely will eventually be heard by the U.S. Supreme Court. At the same time, Democratic Senator Bill Nelson of Florida has introduced legislation that would raise the cap by another $300 million.
Assuming it passes the GOP-controlled Congress (by no means a foregone conclusion), it would be a start – but is unlikely to be enough.
