Kreindler Representing Victims of the Amtrak 188 Train Derailment in Philadelphia, PA

Kreindler is representing victims of the Amtrak derailment near Philadelphia that occurred just before 9:30 p.m. on May 12, 2015. The tragedy claimed the lives of at least eight passengers, including three New Yorkers. More than 140 passengers went to area hospitals and several remain hospitalized with serious injuries.

The National Transportation Safety Board (NTSB) is investigating the derailment and has stated that the train was travelling at over 100 miles per hour on a curve where the maximum speed limit is 50 miles per hour. The accident is being actively investigated on behalf of our clients by Kreindler’s experienced railroad liability team, including partners Andrew Maloney, David Cook, Noah Kushlefsky and Dan Rose.

Kreindler in the Media

Open Questions

Questions remain as to why the engineer drove the train to over 100 miles per hour and did not slow the train down before the curve. The NTSB has taken the engineer’s blood samples and his cellphone and they are investigating his physical and mental condition. The NTSB will determine whether he was impaired or mentally distracted. After providing some preliminary statements to the police on the night of the accident, the engineer has since retained counsel and has not issued any public statements. The NTSB has interviewed him and has stated that he is cooperating with the investigation. The engineer has not been able to provide any meaningful answers, claiming he has no memory of the accident. Another open question is whether a projectile had cracked the train’s windshield before the accident. The NTSB brought in the Federal Bureau of Investigation to look into the windshield cracks and the reports of projectiles hitting other trains in the vicinity. The possibility of a projectile, however, would not explain the excessive speed of the train and the driver reportedly has no memory of anything hitting the windshield.

Kreindler partner Andrew Maloney, a former Assistant U.S. Attorney for the Southern District of New York, believes the engineer may face criminal charges. In many ways, the Amtrak derailment is similar to the December 2013 derailment of a Metro North train in the Bronx. In that case, the engineer told the investigators he became dazed before speeding on a sharp curve and causing a derailment. The Bronx District Attorney’s Office conducted an investigation on criminal charges but ultimately elected not to charge the engineer.

Similar Accidents

Kreindler successfully represented survivors and the family members of deceased passengers from the December 2013 Metro North train derailment at Spuyten Duyvil in the Bronx that killed four passengers and injured dozens. Kreindler attorneys are also currently litigating rail passenger claims from the February 2015 Metro North collision with a vehicle at a railroad crossing near Valhalla, New York that killed five passengers and injured dozens.

Preliminary Investigation Findings

The NTSB has revealed the train lacked a safety technology known as Positive Train Control (PTC) that is designed to intervene and slow a train down if the train is exceeding the speed limit in certain track sections — like an approaching curve. Amtrak does utilize this technology in other regions, and it is on the Acela Express train so the derailment would not have occurred on that train. Questions are being asked as to why it was not installed here given that it is one of the busiest track sections in the country. Amtrak was mandated to install PTC on its entire system by the end of 2015. NTSB Chairman Sumwalt stated that had this train had PTC, the derailment would not have occurred.

Furthermore, the southbound track had an older speed limiting system installed which would have prevented the derailment. Amtrak, however, did not install the system on the northbound track because it believed the risk of the train entering the turn at an unsafe speed going north was less since the speed limit approaching the turn from the south was only 80 miles per hour.

This accident should not have occurred. The safety of train passengers should not be put at risk by the physical or mental health of a single train engineer. Amtrak should have either installed PTC or, at minimum, have had two engineers on duty at the controls to prevent the derailment. Amtrak did not learn the clear lessons from the 2013 Metro North Spuyten Duyvil derailment.

Read more about the NTSB’s investigation on the agency’s website.

Amtrak

Amtrak is the common name for the National Railroad Passenger Corporation, which Congress authorized when it passed the Rail Passenger Service Act, as amended, 45 U.S.C. 541 et seq. Amtrak is operated as a for profit company and is incorporated under the District of Columbia Business Corporation Act. Amtrak is not an agency or establishment of the U.S. government and, accordingly, there is no requirement to file a notice of claim with the government before commencing a law suit. Amtrak may be sued just like any other corporate defendant and plaintiffs are entitled to have their claims heard by a jury. Furthermore, passengers injured in the derailment may bring claims for not only compensatory damages, which include lost income, property damages, medical expenses and pain and suffering among other damages, but also for punitive damages if the facts support an award for punitive damages.

Congress, however, has limited Amtrak’s liability to $200,000,000 for any one accident (see 49 U.S.C.A. § 28103). This limit does not include claims under the Federal Employer’s Liability Act or other workers compensation that may cover federal workers on the train.

Kreindler will be working to ensure that its clients are not prejudiced by the limit of liability, which has the potential to limit the recovery for plaintiffs because the total assessed damages may exceed the limit. While we normally tell clients there is no rush to hire counsel after a mass disaster, we have already seen a number of filings and are concerned there will be an unnecessary rush to court by plaintiffs and attorneys concerned about the limit of liability.

Lawsuits

Lawsuits will be filed in multiple jurisdictions and the Judicial Panel on Multidistrict Litigation will consolidate them before one court. Kreindler will determine the best court to file each of its clients’ cases and we then file the cases in the court that will return the highest possible verdict.

The statute of limitations for filing the claims range between 2-3 years depending on the jurisdiction that we choose to file, but because of the $200,000,000 liability limitation, we will recommend to our clients that we file actions as soon as we have completed the necessary pre-filing investigation. We are not overly concerned that Amtrak’s liability will be exhausted in the near term and expect the court assigned to oversee the litigation will make rulings that will ensure that, if there is a shortfall, plaintiffs who file later are not prejudiced by not rushing to court.

After filing, the cases will go through a discovery process that may be very short if Amtrak concedes liability, as it should.

In the event that Amtrak attempts to fight liability, Kreindler has the experience and resources to respond. Kreindler will also invest the necessary time and resources into properly preparing each of its clients’ damages cases. This process involves not only collecting all the available evidence and interviewing the fact witnesses, but also working with accident reconstruction experts to show what each of our clients went through during the horrific accident. It also means working with the clients who survived to document each step in their medical care and, with the assistance of leading experts, project their future medical needs. When we represent the families of passengers who lost their lives, we develop the evidence that demonstrates to the Jjury everything the family lost.

We approach each case based on its individual facts and we make every decision based on what is in the interest of each of our clients.

Amtrak must compensate each passenger who was injured and the estates and family members of the passengers who tragically lost their lives. Our mission is to ensure that Amtrak fully meets its legal obligations.

WABC 5/14/15: NTSB confirms train traveling in excess of 100 mph