Judge may dismiss Conrail derailment cases over jurisdictional issue

Their number already dwindling due to settlements and dismissals, many of those suing a railroad in federal court in Camden over the 2012 Paulsboro train derailment are now being confronted with an unexpected jurisdictional hurdle.

U.S. District Judge Robert B. Kugler has asked dozens of plaintiffs to demonstrate why their cases should not be dismissed under a requirement that such claims in federal court be valued at more than $75,000.

Attorneys for both plaintiffs - including Paulsboro residents who reported medical concerns following the train wreck and chemical spill - and Conrail, which operated the freight train and rail line, have opposed the judge's move.

But Mark Cuker, a Cherry Hill lawyer representing a number of plaintiffs in the derailment cases, predicted that Kugler would continue to dismiss cases over the jurisdictional issue, which Cuker said he had never before encountered.

"He's taking the position that these cases never could have been worth more than $75,000," Cuker said Tuesday, adding that Kugler had recently dismissed two of his lawsuits on the same ground.

"We will be appealing," Cuker added.

Cuker, in court filings, argued that assessing the jurisdictional threshold should be considered based on claims at the outset, not after they've made their way through court. "Any decrease in the value of their case as a result of adverse court rulings in this litigation is irrelevant," he wrote this month on behalf of Paulsboro resident Karen Armistead and her daughter.

Armistead, a cancer survivor, and her teenage daughter, who live blocks from where the derailment occurred, feared the effects of the 20,000 gallons of carcinogenic vinyl chloride that leaked during the accident, according to their 2013 complaint. Kugler, who noted in an order that they acknowledged in court a "lack of any medical treatment," dismissed the lawsuit Oct. 16.

Cuker, in opposing the dismissal, wrote that settlement discussions in court in September should not be used against plaintiffs, adding, "Negotiations are generally guided by the risk and expenses attendant to continued litigation rather than what would make a party whole."

Attorneys for Conrail also have told the court that the assessment of the claims' value should be made when filed, not after the court ruled to dismiss claims, such as those for punitive damages and fear of cancer.

The November 2012 derailment occurred when an 82-car freight train attempted to cross the Jefferson Street Bridge despite a warning light. Seven cars derailed, four of which fell into the Mantua Creek, and one of which ruptured and released the toxic chemical.

The National Transportation Safety Board in 2014 faulted Conrail for allowing the train to move across the swing-style bridge despite the fact that locks to hold it in place were not intact, and placed blame on the company's insufficient training of the train crew to inspect such mechanisms.

Thousands of cases were filed against Conrail in federal and state courts. Cuker, who estimated that more than 200 cases were filed in U.S. District Court, figured about half of those were settled.

The latest challenge for the federal cases, first reported by the New Jersey Law Journal, is among a number of setbacks dealt to the residents, first responders, and others among the plaintiffs. Class-action certification was denied last year. Medical expert testimony was barred. And, in August, Kugler dismissed claims against Conrail's affiliated companies, CSX and Norfolk Southern.

"We are very disappointed in many of the rulings," Cuker said, "and that is why we intend to appeal them."

A Conrail spokesman declined to comment Tuesday.

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