Union Pacific responds to lawsuits over 2005 derailment, chemical spill in Texarkana

Michelle Massey, East Texas Bureau Feb. 26, 2009, 7:42am

TEXARKANA, Ark. – While admitting that a train derailment and chemical spill caused damage to three houses, seven vehicles and a semi-tractor trailer, Union Pacific Railroad denies it owes damages to 1,200 additional property owners.

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."

According to court papers, in the early morning hours of Oct. 15, 2005, the engineer and conductor of a Union Pacific train failed to remain alert and the train smashed into another train causing a chemical spill and massive ball of fire in Texarkana, Ark.

The collision punctured one tank of highly flammable propylene but officials were aware that the rail yard contained six other tanks containing propylene and one tank containing chlorine gas.

The massive collision resulted in explosions, fires and chemical release into the nearby residential and business community.

According to several lawsuits, the explosion caused the destruction and incineration of multiple homes, personal and business property, vehicles, transformers and a trestle bridge. Emergency responders evacuated approximately 3,000 residents by going door-to-door in a one-mile radius from the collision site.

One fatality occurred in the house where the propylene vapors found an ignition source and exploded. A wrongful death lawsuit argues that a fatality, occurring 10 days after the derailment, was caused by the inhalation of chemical vapors.

In October 2008, eight lawsuits were filed in the Circuit Court of Miller County, Ark., shortly before the statute of limitations expired.

The lawsuits allege that the engineer and conductor of the train, J.L. Gordon and Percy Beverly, were not attentive to their surroundings.

However the accident report of the National Transportation Safety Board concluded that while neither actually fell asleep, the collision was caused by the failure of the crew to remain attentive and alert.

While agreeing with the NTSB report, the complaints state "due to their failure to remain attentive and alert they were thereby unable to stop short of the clearly observable standing train in front of them."

However, the complaint maintains 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 October 15, 2005."

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

The plaintiffs allege the following acts of negligence:

  • Allowing toxic materials and/or substances to be stored and/or transported in an unsafe manner;
  • Allowing and/or failing to prevent hazardous materials and/or substances from entering in and throughout the surrounding area;
  • Failing to properly operate its trains and/or rail cars; and
  • Failing to adequately monitor those responsible for the operation of their trains and/or rail cars.

    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 well-fare of others."

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

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

    A proposed class action pending in federal court was dismissed in April 2008 by U.S. District Judge Harry F. Barnes, who ruled the lawsuit did not meet qualify for class certification but ruled those plaintiffs can continue with individual claims.

    Separate defendant Union Pacific Corporation has filed numerous motions to dismiss arguing the Circuit Court lacks personal jurisdiction, insufficiency of process and insufficiency of service of process.

    According to the Circuit Court's docket, not all the October lawsuits have issued summons or served the complaint upon the defendants.

    The approximately 1200 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 a 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. 2008-345-1; Sprangler, et al vs. Union Pacific et al, Case No. 2008-342-1)

    One lawsuit seeks certification as a class action and divides the plaintiffs into a personal injury class, evacuation class, property damage class, and an 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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