24 February 2023
A Youngstown, Ohio-based law firm has announced a class-action lawsuit against Norfolk Southern Railway over the derailment of a train in East Palestine, using a strategy it says echoes the state’s 1990s lawsuit against tobacco companies.
The firm, Johnson and Johnson, is partnering with class-action law firm Hagens Berman on behalf of all residents within 30 miles of the derailment site. The lawsuit specifically invokes the legal doctrine of “public nuisance,” the backbone of both the landmark 1990s lawsuits against the tobacco industry and ongoing litigation against opioid manufacturers and fossil fuel companies. Hagens Berman represented the state of Ohio in tobacco litigation as well as an ongoing opioid suit.
In addition to punitive damages, the lawsuit also seeks the creation of a fund for medical monitoring, new testing and cleaning procedures and injunctive relief in the form of safety and compliance oversight.
The Environmental Protection Agency has already said it will compel Norfolk Southern to cover all cleanup expenses, as well as the lodging costs for residents who were temporarily evacuated. In an email to The Hill, Hagens Berman managing partner Steve Berman said the lawsuit’s aims were distinct from those expenses.
“All of our lawsuit’s proposed benefits (monetary damages for all injured businesses & residents/individuals within 30 miles of the derailment, establishment of testing & cleaning protocols, a medical monitoring fund, injunctive relief oversight to Norfolk Southern’s safety & compliance programs) would be above and beyond what the EPA would have for residents,” Berman said. “Additionally, we will want a say in what an effective cleanup is.”
The Norfolk Southern train derailed Feb. 3, toppling multiple cars containing hazardous materials, including vinyl chloride, a toxic substance used in the manufacture of plastics. State and federal authorities have said the air and water are safe for residents, but earlier this week, the state Department of Natural Resources updated its estimate of animals that have died in the area from 35,000 to more than 43,000.
A Norfolk Southern spokesperson said the company cannot comment on ongoing litigation.
Updated at 2:14 p.m.