Wasted vegetables and lonely dogs: Property owner files lawsuit over CSX derailment in Bedford Co.

By Nicholas Malfitano | Jun 20, 2018

PITTSBURGH – An August 2017 derailment of a train hauling toxic chemicals in Hyndman has led to a class action lawsuit against CSX Transportation on behalf of the residents allegedly affected by the wreck and subsequent spill.

Denora Diehl of Hyndman, on behalf of herself and all others similarly situated, filed suit in the Bedford County Court of Common Pleas on May 22 versus CSX Transportation, Inc., of Jacksonville, Fla. She lists hardships caused by the derailment like:

-Her dogs being left alone for two days;

-The food in her refrigerator reached its expiration date; and

-She was unable to can vegetables from her garden.

"Ms. Diehl had two dogs that she was forced to leave in her house unattended for nearly 48 hours with no one to feed them, calm them, or let them out of the house so that they could relieve themselves outside," the lawsuit says.

"By the time Ms. Diehl was permitted to return to her home, the food in her refrigerator had expired and had to be thrown away."

On Aug. 2, 2017, CSX was operating a train made up of five locomotives, 178 railcars (128 loaded and 50 empty), carrying mixed freight. On its route, the train was traveling from Chicago to Selkirk, N.Y., on CSX’s Keystone Subdivision, which crosses the Allegheny Mountains and includes the “Sand Patch Grade” - the steepest grade on that route.

The derailment occurred in Hyndman on Aug. 2 at about 4:54 a.m. and resulted in a fire that burned for more than two days, resulting in at least one rail car destroying part of a house situated near the railroad tracks and the mass evacuation of approximately 1,000 people from their homes for two days to multiple weeks.

Additionally, 33 rail cars were involved in the derailment, with 15 of them transporting hazardous materials, including: Three tank cars containing propane, eight tank cars containing molten sulfur, two tank cars containing asphalt and two tank cars containing phosphoric acid residue. A propane tank car and a molten sulfur tank car ruptured and caught fire, burning for more than two days.

The suit says CSX stopped the train on a descending grade due to an air leak in the brake system but did not have time to repair the leak. A second crew was allegedly ordered to complete the route – in “conscious, negligent, careless, willful, wanton, outrageous and/or reckless disregard for the rights and safety of plaintiff and the proposed class.”

As a result, the second crew was unable to pull the train down the grade safely, switching from locomotive power to dynamic braking three times before the train derailed, as the 35th car from the front of the train derailed 1.7 miles before the location of the of the derailment in Hyndman, the suit says.

The crew continued down the route. Nearly two miles later, the car in question moved further off course and contributed to the derailment of the other cars, allegedly due to the arrangement of the cars not being adequate to handle the distributed weight of the load.

According to the lawsuit, Diehl and the other occupants of her home were evacuated from Aug. 2 to Aug. 20, 2017. For the following three months, CSX conducted clean-up operations 24 hours a day, using constant lights and heavy machinery, which is said to have created “noxious fumes, smoke and odors” that Diehl and the other plaintiffs could not escape.

"Ms. Diehl, in the years prior to the derailment, would prepare and can vegetables that were grown by her husband in her garden, which is located in the mandatory evacuation zone," the complaint says.

"Most years, Ms. Diehl would can approximately 36 one-quart jars of salsa and another 36 one-quart jars of whole tomatoes. Because of the derailment, Ms. Diehl was not able to can any vegetables from her garden in 2017."

The suit says the class has been brought for reasons of numerosity of plaintiffs affected by the derailment, existence and predominance of common questions of fact and law, typicality, adequacy and superiority.

When reached, CSX’s Media Relations Manager Laura Phelps stated as a matter of company policy, CSX does not comment on open litigation.  

For counts of negligence and private nuisance caused by the derailment, the plaintiffs are seeking certification of the suit as a class-action, appointment of Diehl as Class Representative and her counsel as Class Counsel, all actual, general, special, incidental, statutory, punitive and consequential damages, attorney’s fees, interest, costs, pre-judgment and post-judgment interest, plus all other relief deemed appropriate by the Court, in addition to a trial by jury.

The plaintiffs are represented by Troy M. Frederick and Bryan S. Neiderhiser of Marcus & Mack, in Indiana, Pa.

The defendant is represented by Jeffrey A. Jackson of Burns White, in Pittsburgh. CSX recently removed the case to U.S. District Court for the Western District of Pennsylvania.

U.S. District Court for the Western District of Pennsylvania case 3:18-cv-00122

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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CSX Corporation U.S. District Court for the Western District of Pennsylvania

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