Picking the poison

For all the furor that rail transit critics like to generate over the dark spectre of (highly profitable) "levitating trains to Disneyland" you rarely hear them complain about the sorts of things we actually use rail transport for in this country, such as daily of shipments of poisonous chemicals through your neighborhood.

While Millar called the switch to bleach a "blessing," he cautioned that railroads, which are federally regulated, are allowed to carry many dangerous chemicals through urban areas, opening the door to accidents and terrorist attacks.

"If your city got successfully attacked, it would be a serious blow to the tourism industry, not only of New Orleans but of the country and maybe even the world," he said. "So you have more reason than most people to know what's being transported through your city."

Such accidents do, in fact, happen. And when they do they're much more serious than "a blow to the tourism industry" as that consultant so distastefully puts it. They affect the safety and health of actual residents who, if they're lucky, will spend subsequent decades fighting the railroad in court over an ever-diminishing compensatory sum. Take, for example, this quick trip down memory lane via the T-P archives.

Judge approves CSX settlement amount - Firm owned track where fire erupted
Times-Picayune, The (New Orleans, LA) - Wednesday, April 3, 2002
Author: Susan Finch Staff writer
A class-action lawsuit over a 1987 chemical tank car fire that spewed fumes and ash into a Gentilly neighborhood moved closer to an end Tuesday when a judge approved a $220 million partial settlement to be paid by CSX Transportation Inc., owner of the track where the tank car was parked, and its insurers.

How much of the $220 million goes to each of the just over 9,000 plaintiffs, after deductions for their attorneys’ fees and the costs of administering the case, will be decided in later hearings before a special master appointed by Judge Wallace Edwards, who is overseeing the case. Checks will likely be ready for distribution this fall, one attorney said.

During a five-hour hearing at City Hall, Edwards also agreed to reserve 40 percent of the $220 million from which to pay the plaintiffs’ attorneys, who have fronted the cost of pursuing the case for 14 years. But he warned that doesn’t mean the lawyers will get 40 percent.

The CSX settlement is the second in the massive case, which went to trial in 1997 and ended with a New Orleans jury concluding nine companies were negligent in the accident caused when the chemical butadiene leaking from the tank car caught fire .

Six of the companies reached a $215 million settlement with residents in 2000, and that money has been parceled out. Attorneys got just over 38 percent as fees. Negotiations with two remaining defendants in the case are continuing.

By agreeing to the $220 million settlement, CSX avoids having to pay punitive damages set at $850 million by Judge Wallace Edwards, who has presided in the long-running case. It also makes the company’s appeal to the Louisiana Supreme Court moot.

New Orleans attorney Russ Herman, testifying as an expert in class-action cases for the plaintiffs’ management committee, advised accepting the CSX settlement now, given the fact that lawmakers both in Louisiana and in Congress are increasingly inclined to do away with punitive damage awards. Had the accident happened in 1997, when the case went to trial, punitive damages would not have been an option because the Legislature had already changed the law.

Edwards agreed: "A settlement like this, to me, is like a bird in the hand versus two in the bush," he said. He added that the case has been "an unbelievable struggle" that he’s eager to end and move on to other things: "I’ve got a new John Deere tractor that has four-wheel drive and a bush hog on it," he said.

More than 200 people packed into the City Council chamber for the hearing, and many others were left outside because there weren’t enough seats. Joseph Bruno, an attorney for the residents, said that no one who objected to the settlement amount was denied entrance.

Special master Patrick Juneau had overruled all objections that were filed before Tuesday, but he had asked the judge to hear those who were complaining for the first time.

One of them, Clementine Mims, said, "I feel $220 million isn’t sufficient enough for the 14 years I and my son have lived in fear of (contracting) cancer" from breathing fumes from the chemical fire . They have also suffered financial damage, she said.

New objections filed Tuesday will be addressed at later hearings before the special master.