New round of suits filed against UP from 2005 derailment

Michelle Massey, East Texas Bureau Oct. 22, 2008, 8:45am

TEXARKANA, Ark. – In the early morning hours of Oct. 15, 2005, a Texarkana neighborhood was rocked when a Union Pacific train smashed into another train in the rail yard and exploded.

The massive collision resulted in explosions, fires and chemical release into the nearby residential and business community. The explosion caused the destruction and incineration of multiple homes, personal and business property, cars, transformers and a trestle bridge.

Propylene gas escaped from a punctured tank on the derailed UP train. Initially, police thought the chemical involved was vinyl acetate, which releases poisonous fumes. Emergency responders urged evacuation of approximately 3,000 residents by going door-to-door in a one-mile radius from the collision site.

One fatality occurred when propylene vapors ignited inside a house and another man died 10 days later, allegedly after inhaling chemical vapors.

Three years after a train derailment and subsequent chemical explosion, eight new lawsuits were filed just prior to the statute of limitations deadline. The lawsuits are in addition to several other suits previously filed from the disaster.

The newest suits allege that engineer J.L. Gordon and conductor Percy Beverly were not attentive to their surroundings.

An accident report of the National Transportation Safety Board concluded that that neither fell asleep, since it was determined that the engineer blew the whistle at a grade crossing 70 seconds before the collision. However the report concluded that the collision was caused by the failure of the crew to remain attentive and alert.

The plaintiffs argue that "due to their failure to remain attentive and alert" the train crew was "thereby unable to stop short of the clearly observable standing train in front of them."

They maintain that Gordon was "overworked, fatigued, and badly in need of rest" and "fell asleep while conducting the train during the train during the early morning hours on Oct. 15, 2005."

Union Pacific Corporation, Union Pacific Railroad Company, Gordon and Beverly are named as defendants in the lawsuits.

The plaintiffs allege the defendants were negligent in the operation and monitoring of its rail cars and for allowing toxic materials to be stored in an unsafe manner and failing to prevent the release of the chemicals into the surrounding area.

The complaint also alleges negligence per se in that "the defendants' acts were willful, wanton and/or reckless and were carried out in such a manner as to constitute a conscious disregard for the health, safety and welfare of others."

Other allegations include trespass, conversion, nuisance and strict liability.

Another suit was filed on behalf of 18 first responders, including law enforcement, fire and rescue and evacuation personnel.

Filed in the Miller County, Ark., Circuit Court , the lawsuits argue that the case is not removable to federal court under the Class Action Fairness Act.

The complaints seek damages for loss of value, use and enjoyment of property, diminution of future value, evacuations costs, clean up and remediation expenses, loss of income, inconvenience, and disruption of life, pain and suffering, mental distress, shock, fright, personal injury and punitive damages.

A previous lawsuit by the family of 62-year-old Pearlie Mae Marshall, who died when the explosion destroyed her home, was settled for $2 million.

A proposed class action was dismissed in April by U.S. District Judge Harry F. Barnes, who ruled the lawsuit did not qualify for class certification. Barnes allowed plaintiffs to continue with individual claims.

A Union Pacific spokesperson states the railroad wants to "make things right" with those truly affected by the incident but will defend itself against those "who were not directly affected or who were not within the evacuation zone."

The approximately 1,200 property owner plaintiffs are represented by Texarkana attorney Paul D. Hoover and Darren w. Anderson ( Adams et al vs. Union Pacific, et al. Case No. 2008-338-1).

The Texarkana law firm of Dunn, Nutter, and Morgan also filed a similar suit with approximately 1,400 plaintiffs (Abner et al vs. Union Pacific, et al. Case No. 2008-0344-3).

The personal injury plaintiffs are represented by Texarkana attorney Thomas H. Johnson (Beal et al vs. Union Pacific, et al. Case No. 2008-339-1).

The first responders are represented by Daingerfield attorneys Keith Langston and Kristen Pauls of Nix, Patterson, and Roach LLP; Texarkana attorneys Matt Keil and John Goodson of Keil and Goodson PA; Shorty Barrett and Joe Tyler of Barrett and Tyler LLP; and Brent Langdon of Langdon Davis ( Allen, et al vs. Union Pacific, et al. Case No. 2008-341-2).

The attorneys also filed a similar suit with other persons affected by the incident and the wrongful death suit of Norma Sims (Fulgium, et al vs. Union Pacific, et al. Case No. CV- 2008-0343-3, DE Adams vs. Union Pacific, et al. Case No. 2008-345-, Sprangler, et al vs. Union Pacific, et al. Case No. 2008-342-1).

Another lawsuit seeks certification as a class action and divides the plaintiffs into the personal injury class, evacuation class, property damage class and the economic or business loss class. The Little Rock firm Matthews, Sanders and Sayes and the Louisiana law firms of Fayard and Honeycutt, The Dudenhefer Law Firm and The Murphy Law firm are representing the proposed class (Anderson, et al vs. Union Pacific, et al. Case No. 2008-0346-1).

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