MESSA & ASSOCIATES, P.C. By: Joseph L. Messa, Jr., Esquire This is not an Arbitration Matter.

Transcription

1 MESSA & ASSOCIATES, P.C. By: Joseph L. Messa, Jr., Esquire This is not an Arbitration Matter. Thomas N. Sweeney, Esquire Assessment of Damages Hearing is Attorney I.D. Nos.: 53645/84192 Required. 123 South 22nd Street Philadelphia, Pennsylvania MAJOR JURY (215) / Fax: (215) Attorney for Plaintiffs ALISON HENRY : 417 Mantua Avenue : COURT OF COMMON PLEAS PHILADELPHIA COUNTY ELAINE HOPKINS : March Term, South Commerce Street : No. LOUIS MELTON : 1538 South Commerce Street : JOHN MELTON : 1538 South Commerce Street : JEANATTE MORTON : 251 West Olive Street : Westville, N.J : MARJORIE MOODY : 124 W. Broad Street, Apt. B : VANA BAYLISSS : 128 W. Broad Street, Apt. A : LATISHA CENNENO : 118 W. Washington Street : Paulsboro, N.J : TRENA BERGEN : 120 W. Broad Street, Apt. A :

2 YOLANDA BERGEN : 120 W. Broad Street, Apt. A : KHALID GARLAND, A MINOR, : BY YOLANDA BERGEN : 120 W. Broad Street : OCTAVIA GARLAND, : A MINOR, BY YOLANDA BERGEN : 120 W. Broad Street : JEANETTE MORTON : 251 W. Olive Street : Westville, N.J : SHAVONNIE WILSON : 211 W. Washington Street : MICHAEL WILSON : 211 W. Washington Street : CHASE WILSON, A MINOR, : BY SHAVONNIE WILSON : 211 W. Washington Street : CECELIA WILSON, A MINOR, : BY SHAVONNIE WILSON : 211 W. Washington Street : ZOYA NORMAN : 1404 S. Commerce Street : JAQUON PAIGE : 1404 S. Commerce Street :

3 JOANIE JOHNSON : 324 W. Washington Street : : Plaintiffs, : : v. : : CONSOLIDATED RAIL : CORPORTATION a/k/a CONRAIL : CORPORATION : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : NORFOLK SOUTHERN RAILWAY : COMPANY a/k/a NORFOLK : SOUTHERN CORPORATION, : Three Commercial Place, : Norfolk, VA : CSX TRANSPORTATION, INC., : 2704 Commerce Drive, Ste. B., : Harrisburg, PA : MARK MATHER : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : WILBERT DEN OUDEN : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : JON A. HAVLICEK : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : RYAN HILL : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : RYAN KEATING : 1717 Arch Street, 32nd Floor, : Philadelphia, PA :

4 GARY FINNINGAME : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : JERRY KAMINSKI : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : DAVID OHR : 1717 Arch Street, 32nd Floor, : Philadelphia, PA : OXY VINYLS, L.P. : 5005 LBJ Freeway, Suite 2200 : Dallas, Texas : : Defendants. : : VERIFIED COMPLAINT CIVIL ACTION 2T TOXIC TORT Plaintiffs, by and through their undersigned counsel, bring this Complaint against the Defendants set forth above, and in support thereof, aver as follows: I. INTRODUCTION 1. This is a strict liability and negligence action against Defendants Consolidated Rail Corporation ( Conrail ), Norfolk Southern Railway Company and CSX Transportation, Inc. and their agents and employees (the Railroad Defendants ) whose willful and reckless conduct caused the train derailment, railroad bridge collapse and massive spill of toxic chemicals into the Mantua Creek in Paulsboro, New Jersey on November 30, At approximately, 7:00 a.m., the East Jefferson Street Bridge, which the Railroad Defendants owned and operated, collapsed causing four train tankers loaded with tens of thousands of gallons of hazardous substances to plunge into the creek and spill their contents into the environment.

5 3. From this massive chemical spill, a thick toxic fog of vinyl chloride monomer spread through the densely populated Paulsboro neighborhood and exposed Plaintiffs to harmful levels of this hazardous substance. 4. Defendants did nothing to warn Paulsboro residents living near the chemical spill that the chemicals were dangerous and could cause catastrophic injuries or illness. 5. Plaintiffs seek damages as a result of the exposure to Defendants dangerous, toxic and unsafe chemicals. 6. The Railroad Defendants consciously disregarded the dangers of the substances they transported posed to the innocent Paulsboro residents living near the East Jefferson Street Bridge. 7. The failure and collapse of the East Jefferson Street Bridge was not just foreseeable, it was actually foreseen by the Railroad Defendants. 8. A nearly identical derailment and collapse occurred in precisely the same place on August 23, In the year preceding this accident, the Railroad Defendants received at least 23 reports that the East Jefferson Street Bridge had malfunctioned, including a report just hours before the disastrous bridge collapse and chemical spill. 10. Though the Railroad Defendants received repeated and continuous notification of the malfunctioning dilapidated Civil War-era bridge, they consciously and recklessly continued to transport hazardous and toxic materials across it through a well-populated area, endangering the health, welfare and safety of Paulsboro residents, particularly the Plaintiffs. 11. The Railroad Defendants are strictly liable for the injuries to Plaintiffs by the exposure to the toxic hazardous substances, just blocks from the derailment and bridge collapse. 2

6 Defendant OxyVinyls, L.P., which manufactured, sold and distributed the hazardous and dangerous chemicals, are also strictly liable for the injuries to Plaintiffs. 12. Through this action, Plaintiffs seek compensatory and punitive damages from the Railroad Defendants for their strict liability and negligence. II. PARTIES 13. Plaintiff Alison Henry is an adult individual and resident of the State of New Jersey with a primary residence at 417 Mantua Avenue, Paulsboro, N.J Plaintiff Elaine Hopkins is an adult individual and resident of the State of New Jersey with a primary residence at 1538 South Commerce Street, Paulsboro, N.J Plaintiff Louis Melton is an adult individual and resident of the State of New Jersey with a primary residence at 1538 South Commerce Street, Paulsboro, N.J Plaintiff John Melton is an adult individual and resident of the State of New Jersey with a primary residence at 1538 South Commerce Street, Paulsboro, N.J Plaintiff Jeanatte Morton is an adult individual and resident of the State of New Jersey with a primary residence at 251 West Olive Street, Westville, N.J Plaintiff Marjorie Moody is an adult individual and resident of the State of New Jersey with a primary residence at 124 W. Broad Street, Apt. B, Paulsboro, N.J Plaintiff Vana Bayliss is an adult individual and resident of the State of New Jersey with a primary residence at 128 W. Broad Street, Apt. A, Paulsboro, N.J Plaintiff Latisha Cenneno is an adult individual and resident of the State of New Jersey with a primary residence at 118 W. Washington Street, Paulsboro, N.J Plaintiff Trena Bergen is an adult individual and resident of the State of New Jersey with a primary residence at 120 W. Broad Street, Apt. A, Paulsboro, N.J

7 22. Plaintiff Yolanda Bergen is an adult individual and resident of the State of New Jersey with a primary residence at 120 W. Broad Street, Apt. A, Paulsboro, N.J Plaintiff Khalid Garland, a minor, by Yolanda Bergen, is a resident of the State of New Jersey with a primary residence at 120 W. Broad Street, Paulsboro, N.J Plaintiff Octavia Garland, a minor, by Yolanda Bergen, is a resident of the State of New Jersey with a primary residence at 120 W. Broad Street, Paulsboro, N.J Plaintiff Jeanette Morton is an adult individual and a resident of the State of New Jersey with a primary residence at 251 W. Olive Street, Westville, N.J Plaintiff Shavonnie Wilson is an adult individual and resident of the State of New Jersey with a primary residence at 211 W. Washington Street, Paulsboro, N.J Plaintiff Michael Wilson is an adult individual and resident of the State of New Jersey with a primary residence at 211 W. Washington Street, Paulsboro, N.J Plaintiff Chase Wilson, a minor, by Shavonnie Wilson is a resident of the State of New Jersey with a primary residence at 211 W. Washington Street, Paulsboro, N.J Plaintiff Cecelia Wilson, a minor, by Shavonnie Wilson, is a resident of the State of New Jersey with a primary residence at 211 W. Washington Street, Paulsboro, N.J Plaintiff Zoya Norman is a resident of the State of New Jersey with a primary residence at 1404 S. Commerce Street, Paulsboro, N.J Plaintiff Jaquon Paige is a resident of the State of New Jersey with a primary residence at 1404 S. Commerce Street, Paulsboro, N.J Plaintiff Joanie Johnson is a resident of the State of New Jersey with a primary residence at 324 W. Washington Street, Paulsboro, N.J

8 33. Defendant Consolidated Rail Corporation ( Conrail ), is a corporation or other jural entity duly organized and existing under the laws of the Commonwealth of Pennsylvania with its principal place of business and/or corporate headquarters located at 1717 Arch Street, 32nd Floor, Philadelphia, PA Conrail hauls freight into and out of the City and County of Philadelphia daily. Additionally, Defendant Conrail receives services and utilities from the City and County of Philadelphia. Defendant Conrail has sued individuals and businesses in the Court of Common Pleas of Philadelphia County. 34. Defendant Norfolk Southern Railway Company, a/k/a Norfolk Southern Corporation is a corporation or other jural entity duly organized and existing under the laws of the Commonwealth of Virginia with its principal place of business located at Three Commercial Place, Norfolk, VA Defendant Norfolk Southern Railway Company hauls freight into and out of the City and County of Philadelphia daily. Defendant Norfolk Southern Railway Company owns railroad tracks in Conshohocken and Norristown, Pennsylvania which connect with tracks owned by CSX Transportation, Inc. at 23 rd Street in Philadelphia. Upon information and belief, Defendant Norfolk Southern Railway Company has sued individuals and businesses in the Court of Common Pleas of Philadelphia County. 35. Defendant CSX Transportation, Inc., is a corporation or other jural entity organized and existing under the laws of the Commonwealth of Virginia with its principal place of business and/or corporate headquarters located in Jacksonville, Florida. Defendant CSX Transportation, Inc. maintains an office for the service of legal process at 2704 Commerce Drive, Ste. B., Harrisburg, PA Defendant CSX Transportation, Inc. hauls freight into and out of the City and County of Philadelphia daily. Further, Defendant CSX Transportation, Inc. owns railroad tracks in the City and County of Philadelphia. Upon information and belief, Defendant 5

9 CSX Transportation, Inc. has sued individuals and businesses in the Court of Common Pleas of Philadelphia County. 36. Defendant Mark Mather is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Mather was the engineer of the derailed train and his actions, omissions and decisions caused the derailment, bridge collapse and chemical spill. At all times relevant hereto, Defendant Mather was an agent, servant and employee of Conrail. 37. Defendant Wilbert Den Ouden is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Den Ouden was the conductor of the derailed train and his actions, omissions and decisions caused the derailment, bridge collapse and chemical spill. At all times relevant hereto, Defendant Den Ouden was an agent, servant and employee of Conrail. 38. Defendant Jon A. Havlicek is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Havlicek was the train dispatcher on duty of the derailment and his actions, omissions and decisions caused the train derailment, bridge collapse and chemical spill. At all times relevant hereto, Defendant Havlicek was an agent, servant and employee of Conrail. 39. Defendant Ryan Hill is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Hill was/is Conrail s Structures Supervisor and his actions, omissions and decisions which caused the derailment, bridge collapse and chemical spill. At all times relevant hereto, Defendant Hill was an agent, servant and employee of Conrail. 6

10 40. Defendant Ryan Keating is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Keating was/is Conrail s Transportation Supervisor and his actions, omissions and decisions which caused the derailment, bridge collapse and chemical spill. At all times relevant hereto Defendant Keating was an agent, servant and employee of Conrail. 41. Defendant Gary Finningame is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Finningame was the Trainmaster of the derailed train and his actions, omissions and decisions caused the derailment, bridge collapse and chemical spill. At all times relevant hereto Defendant Finningame was an agent, servant and employee of Conrail. 42. Defendant Jerry Kaminski is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Kaminski was the construction engineer of who was responsible for the maintenance, repair and inspection of the East Jefferson Street Bridge. His actions, omissions and decisions which caused the derailment, bridge collapse and chemical spill. At all times relevant hereto Defendant Kaminski was an agent, servant and employee of Conrail. 43. Defendant David Ohr is an adult individual who maintains an address at 1717 Arch Street, 32nd Floor, Philadelphia, PA Defendant Ohr was the Signal Supervisor on duty at the time of the train derailment and his actions, omissions and decisions which caused the derailment, bridge collapse and chemical spill. At all times relevant hereto Defendant Ohr was an agent, servant and employee of Conrail. 44. Defendant OxyVinyls, LP, is a limited partnership, corporation or other jural entity organized and existing under the laws of the State of Delaware with its principal place of 7

11 business and/or corporate headquarters located at 5005 LBJ Freeway, Suite 2200, Dallas, Texas At all times relevant hereto, Defendants acted through their respective agents, servants, workmen and/or employees acting in the course and scope of their employment and service. III. FACTUAL BAGROUND A. The Highly Foreseeable Derailment and Bridge Collapse 46. Upon information and belief, on or before November 30, 2012, the train owned and operated by the Railroad Defendants carried its dangerous cargo through the Commonwealth of Pennsylvania and the City and County of Philadelphia. 47. On November 30, 2012, a freight train owned and operated by the Railroad Defendants was carrying abnormally dangerous chemicals through the middle of a residential community in Paulsboro, New Jersey. 48. At approximately 7:00 a.m., the train derailed and the East Jefferson Street Bridge, also owned and operated by the Railroad Defendants, collapsed and four railroad tank cars plunged into the creek. 49. The East Jefferson Street Bridge is constructed so that it mechanically pivots to allow marine traffic to continue through the Mantua Creek and it must close and lock in place after it is opened to allow freight train traffic to resume. 50. A train cannot safely traverse the East Jefferson Street Bridge unless it is properly aligned and locks with the adjacent rails. 51. When the East Jefferson Street Bridge and rails are properly aligned, a green light indicates that it was open to freight traffic. 8

12 52. When the bridge and rails were not properly aligned a red signal indicates that the East Jefferson Street Bridge was not open to freight traffic. 53. The East Jefferson Street Bridge was built in 1873 and, in the years leading up to the November 30, 2012 spill, had a significant history of failure. 54. On August 23, 2009, a nearly identical derailment and collapse occurred on the East Jefferson Street Bridge. 55. In the year preceding the November 30, 2012 derailment and collapse, the Railroad Defendants received as many as 23 trouble tickets reporting malfunctioning of the East Jefferson Street Bridge. 56. Between October 27, 2012 and November 30, 2012, the Defendants received at least nine trouble tickets reporting malfunctioning of the East Jefferson Street Bridge. 57. On November 19, 2012, the Railroad Defendants received reports that East Jefferson Street Bridge was not operating properly because the track on the bridge failed to connect and lock with the rail on either side of the bridge. 58. Defendants Mather, Den Ouden, Havlicek, Hill, Keating, Finningame, Kaminski and Ohr received notice, and were aware, of the mechanical failures of the East Jefferson Street Bridge. 59. Conrail s executives and managers based in Philadelphia decided to continue to utilize the defective and dilapidated East Jefferson Street Bridge despite the known risk to the population of Paulsboro, New Jersey. 60. Eight hours before the November 30 th derailment and collapse, the Railroad Defendants received another notice that the East Jefferson Street Bridge was malfunctioning. 9

13 61. Though the Railroad Defendants received constant and repeated notice of the malfunctioning East Jefferson Street Bridge, they consciously and willfully endangered the health, welfare and safety of Paulsboro residents by continuing to use the bridge to transport hazardous and toxic chemicals. 62. Though the Railroad Defendants had actual notice on the night of November 29 th and morning of November 30 th, that the East Jefferson Street Bridge was malfunctioning, they continued to use the bridge for the transportation of hazardous materials through a densely populated area. 63. On the morning of November 30, 2012, the bridge light was red, indicating that the bridge was not properly aligned and locked and that train engineer Mather should not proceed across the bridge. 64. Defendant Conrail, an owner of the East Jefferson Street Bridge and operator of the train, promulgates a rule which states: When a train encounters a Stop Signal at a moveable bridge, the Train Dispatcher must not authorize the train to pass the Stop Signal until a qualified employee examines the bridge and determines that the rails are properly lined and the bridge is safe for movement. 65. Upon information and belief, train engineer Mather then contacted dispatch operator Havlicek, and requested permission to cross the East Jefferson Street Bridge. 66. Upon information and belief, train engineer Mather, in consultation with the dispatch operator Havlicek, consciously and recklessly decided to proceed across the East Jefferson Street Bridge with freight which included hazardous and toxic substances. 67. The Railroad Defendants agents decision to cross the East Jefferson Street Bridge carrying hazardous and toxic chemicals while the light was red constitutes a conscious 10

14 disregard for the health, welfare and safety of the residents of Paulsboro, New Jersey, particularly Plaintiffs. B. Vinyl Chloride Monomer Is a Hazardous Substance and Dangerous to the Health, Welfare and Safety of Plaintiffs 68. The Railroad Defendants freight train carrying more than 80 cars derailed, with four tank cars filled with vinyl chloride monomer plunging into the Mantua Creek. environment. 69. Each tank contained approximately 25,000 gallons of vinyl chloride monomer. 70. More than 100,000 pounds of vinyl chloride monomer escaped into the 71. Upon information and belief, Defendant Oxy Vinyls, L.P. is the manufacturer, distributor and seller of the vinyl chloride monomer which was being transported thorough Plaintiffs Paulsboro neighborhood on November 30, Upon information and belief, Defendant Oxy Vinyls, L.P. placed the vinyl chloride monomer into the stream of commerce which escaped into the environment on November 30, According to Defendant Oxy Vinyls, L.P., vinyl chloride monomer is the key chemical precursor to PVC which is produced commercially by combining a hydrocarbon feedstock; namely ethylene, obtained by cracking natural gas or petroleum, with elemental chlorine. 74. Oxy Vinyls, L.P. manufactures and sells vinyl chloride monomer in large, commercial quantities for PVC manufacturing. 75. Vinyl chloride monomer exposure can affect the cardiovascular, respiratory and central nervous systems and can cause difficulty breathing, lung irritation, chest pains, coughing, dizziness, headaches, eye irritation and loss of consciousness. 11

15 76. OxyVinyls, LP admits on its website that exposure to vinyl chloride monomer is a major health hazard and can cause damage to liver and peripheral nervous system through prolonged or repeated exposure and can cause damage to lungs through prolonged or repeated exposure by inhalation. 77. Specifically, OxyVinyls, LP admits that just minutes of exposure to vinyl chloride monomer can result in health effects as follows: POTENTIAL HEALTH EFFECTS: Inhalation: Several minutes of exposure to high, but attainable concentrations (over 1000 ppm) may cause central nervous system depression with effects such as dizziness, drowsiness, disorientation, tingling, numbness or burning sensation of the hands and feet, impaired vision, nausea, headache, difficulty breathing, cardiac arrhythmias, unconsciousness, or even death. C. Defendants Expose Plaintiffs to Vinyl Chloride Monomer 78. On November 30, 2012, as a result of the train derailment, bridge collapse and chemical spill, the vinyl chloride monomer permeated Paulsboro, New Jersey. 79. A thick toxic fog of vinyl chloride fumes quickly permeated Plaintiffs Paulsboro neighborhood adjacent to the East Jefferson Street Bridge derailment. 80. Representatives of the United States Environmental Protection Agency, the New Jersey Department of Environmental Protection, the United States Coast Guard, New Jersey Office of Emergency Management, Paulsboro Fire Department immediately headed to Paulsboro to deal with the aftermath of this catastrophe. 81. After vinyl chloride monomer, a known toxic chemical and human carcinogen, was released into the Paulsboro neighborhood, Plaintiffs were exposed to it, ingested it, and inhaled it. 82. As a result of the spill of vinyl chloride monomer, the Plaintiffs were exposed to significant and harmful levels of vinyl chloride. 12

16 83. Measurements indicate that elevated readings of vinyl chloride monomer were detected for at least five days after the spill. 84. The Defendants legal liability was immediately apparent to them from the bridge collapse and chemical spill. 85. As reported on February 19, 2013 by 6ABC in Philadelphia, shortly after the chemical spill, the Railroad Defendants quickly sought to buy-off some Paulsboro residents with the payment of small cash settlements in exchange for their execution of releases foregoing their rights in court. 86. The Railroad Defendants attempted to have Paulsboro residents sign secret releases which contain the following provision: By signing this release you are forever barred from bringing a lawsuit or any claim against any of the companies or individuals listed on the release for any reason. 87. The companies identified on the release are those identified in this action: Consolidated Rail Corporation Norfolk Southern Railway Company CSX Transportation, Inc. Oxy Vinyls, L.P. COUNT I STRICT LIABILITY Restatement of Torts (Second) 519 and 520 All Plaintiffs v. Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company and CSX Transportation, Inc. 88. The above paragraphs are incorporated herein by reference as if the same were fully set forth herein. 89. Defendants Consolidated Rail Corporation ( Conrail ), Norfolk Southern Railway Company and CSX Transportation, Inc. are strictly liable for the injuries and damages suffered by Plaintiffs pursuant to the provisions of the Restatement (Second) of Torts 519 and

17 90. The transportation of the toxic and flammable substance vinyl chloride monomer is an abnormally dangerous activity under the definition set forth in Restatement (Second) of Torts 519 and The Railroad Defendants engaged in an abnormally dangerous activity for which common law strict liability applies for transporting hazardous substances, including but not limited to, vinyl chloride monomer, through a residential community, in a manner the Railroad Defendants knew to be dangerous and without taking proper precautions. 92. Had the Railroad Defendants not engaged in the abnormally dangerous activity, Plaintiffs would not have been exposed to dangerous levels of vinyl chloride monomer and endured the other losses set forth herein. 93. As a direct and proximate result of the Railroad Defendants negligence, carelessness, and/or recklessness described in this complaint, Plaintiffs suffered injuries to their eyes, respiratory systems, neurological injuries, injuries to their internal organs, including conscious pain, suffering and mental distress, and have and will in the future have to expend sums for medical expenses and the other losses set forth herein. 94. Accordingly, the Railroad Defendants are strictly liable, jointly and severally, without regard to fault, for all of the damages to Plaintiffs, which were a direct and proximate result of the train derailment and release of hazardous substances which harmed Plaintiffs as described herein. WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. 14

18 COUNT II STRICT LIABILITY Restatement of Torts (Second) 519 and 520 Plaintiffs v. Defendant Oxy Vinyls, L.P. 95. The above paragraphs are incorporated herein by reference as if the same were fully set forth herein. 96. Defendants Oxy Vinyls, L.P. manufactures, sells, transports and distributes the dangerous, toxic and flammable substance, vinyl chloride monomer. 97. Defendants Oxy Vinyls, L.P. placed the dangerous, toxic and flammable substance, vinyl chloride monomer into the stream of commerce. 98. Defendants Oxy Vinyls, L.P. are strictly liable for the injuries and damages suffered by Plaintiffs pursuant to the provisions of the Restatement (Second) of Torts 519 and The transportation of the toxic and flammable substance vinyl chloride monomer is an abnormally dangerous activity under the definition set forth in Restatement (Second) of Torts 519 and Defendants Oxy Vinyls, L.P. engaged in an abnormally dangerous activity for which common law strict liability applies for transporting hazardous substances, including but not limited to, vinyl chloride monomer, through a residential community, in a manner they knew to be dangerous and without taking proper precautions Had Defendants Oxy Vinyls, L.P. not engaged in the abnormally dangerous activity, Plaintiffs would not have been exposed to the vinyl chloride monomer and would not have suffered injuries to their eyes, respiratory systems, neurological injuries, injuries to their internal organs, including conscious pain, suffering and mental distress and the other losses set forth herein. 15

19 102. As a direct and proximate result of the Defendant Oxy Vinyls, L.P. s negligence, carelessness, and/or recklessness described in this complaint, Plaintiffs suffered damages, including conscious pain and suffering and the other losses set forth herein Accordingly Defendant Oxy Vinyls, L.P. is strictly liable, jointly and severally, without regard to fault, for all of the damages to Plaintiffs, which were a direct and proximate result of the train derailment and release of hazardous substances which harmed Plaintiffs as described herein. WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. COUNT III-- RECKLESSNESS All Plaintiffs v. Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company, CSX Transportation, Inc., Mark Mather and John A. Havlicek 104. The above paragraphs are incorporated herein by reference as if the same were fully set forth herein Prior to November 30, 2012, the Railroad Defendants knew that the East Jefferson Street Bridge was dangerous and prone to malfunction Prior to November 30, 2012, the Railroad Defendants knew that the East Jefferson Street Bridge was prone to collapse from a train derailment because of a nearly identical accident on August 23, In the year before the November 30, 2012 derailment and collapse, the Railroad Defendants received as many as 23 trouble tickets reporting malfunctioning of the East Jefferson Street Bridge. 16

20 108. Between October 27, 2012 and November 30, 2012, the Railroad Defendants received at least nine trouble tickets reporting malfunctioning of the East Jefferson Street Bridge On November 19, 2012, the Railroad Defendants received reports that East Jefferson Street Bridge was not operating properly because the track on the bridge failed to connect and lock with the rail on either side of the bridge Eight hours before the November 30 th derailment and collapse, the Railroad Defendants received notice that the East Jefferson Street Bridge was malfunctioning The Railroad Defendants were aware that the dilapidated East Jefferson Street Bridge malfunctioned and was prone to derailment and collapse Nevertheless, they willfully and/or recklessly disregarded the dangers posed to the population of Paulsboro by continuing to use the East Jefferson Street Bridge to transport highly dangerous toxic substances Despite such knowledge, and in willful, wanton, outrageous and reckless disregard for human life and safety, including the safety and well-being of Plaintiffs, the Railroad Defendants nevertheless continued to transport toxic chemicals across the East Jefferson Street Bridge Additionally, on the morning of November 30, 2012, the Railroad Defendants were aware that the East Jefferson Street Bridge was not properly aligned and locked because the bridge light was red Despite the indication that the bridge was not safe for use, the Railroad Defendants train engineer Mather, in consultation with dispatch operator Havlicek, consciously and recklessly decided to proceed across the East Jefferson Street Bridge. 17

21 116. The Railroad Defendants agents decision to cross the East Jefferson Street Bridge carrying hazardous and toxic chemicals while the light was red constitutes a conscious disregard for the health, welfare and safety of the residents of Paulsboro, New Jersey, including Plaintiffs The Railroad Defendants conduct, as set forth above, was willful and wanton misconduct, was reckless, and evidenced a reckless disregard for human life and safety, including the safety and well-being of Plaintiffs As a direct and proximate result of such conduct by the Railroad Defendants, Plaintiffs were exposed to the vinyl chloride monomer and suffered injuries to their eyes, respiratory systems, neurological injuries, injuries to their internal organs, including conscious pain, suffering and mental distress and the other losses set forth herein. WHEREFORE, Plaintiffs claim of the Railroad Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. COUNT IV NEGLIGENCE All Plaintiffs v. Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company, CSX Transportation, Inc., Mark Mather, Wilbert Den Ouden, Ryan Hill, Ryan Keating, Garry Finningame, Jerry Kaminski and David Ohr 119. The above paragraphs are incorporated herein by reference as if the same were fully set forth herein Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company, CSX Transportation, Inc., Mark Mather, Wilbert Den Ouden, Ryan Hill, Ryan Keating, Garry Finningame, Jerry Kaminski and David Ohr had a duty to use reasonable care in the transportation of hazardous materials through Paulsboro, N.J. 18

22 121. Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company, CSX Transportation, Inc., Mark Mather, Wilbert Den Ouden, Ryan Hill, Ryan Keating, Garry Finningame, Jerry Kaminski and David Ohr breached their duties to the Plaintiffs as set forth herein: a. Failing to exercise reasonable care to in the transportation of hazardous substances, including, but not limited to, vinyl chloride; b. Negligently transporting hazardous chemicals including, but not limited to, vinyl chloride; c. Negligently transporting hazardous chemicals across the East Jefferson Street Bridge against a red light indicating that the bridge was not safe; d. Negligently permitting a train carrying hazardous chemicals to cross the East Jefferson Street Bridge despite the fact that the red signal indicated that the bridge was not properly aligned or locked; e. Failing to detect the dangerous condition on the East Jefferson Street Bridge before permitting a train carrying hazardous chemicals to cross it; f. Failing to properly inspect the Civil War-era East Jefferson Street Bridge; g. Failing to properly maintain and/or repair the East Jefferson Street Bridge; h. Failing to properly inspect the signal system on the East Jefferson Street Bridge; i. Failing to properly maintain and/or repair the signal system on the East Jefferson Street Bridge; j. Failing to correct and/or remediate the defects in the Civil War-era East Jefferson Street Bridge; k. Failing to address the dozens of complaints regarding the East Jefferson Street Bridge; l. Failing to repair properly the East Jefferson Street Bridge following the August 23, 2009 derailment and bridge collapse; m. Failing to take reasonable precautions to protect the safety of those individuals living near the East Jefferson Street Bridge; n. Failing to warn the individuals living near the East Jefferson Street Bridge immediately after hazardous substances had spilled into the Mantua Creek; o. Failing to warn individuals living near the East Jefferson Street Bridge that exposure to vinyl chloride could cause injury or illness; p. Failing to evacuate the residents near the East Jefferson Street Bridge immediately after the train derailment, bridge collapse and massive chemical spill into the Mantua Creek; q. Failing to comply with Defendants safety regulations, standards and procedures; r. Failing to comply with the rules of Northeast Operating Rules Advisory Committee (NORAC); 19

23 s. Negligently permitting untrained and unqualified personnel to authorize crossing the bridge in the presence of the red signal; t. Failing to exercise reasonable care to ensure that residents of Paulsboro, including Plaintiffs, would not be endangered by the transportation of hazardous substances through their community; u. Failing to exercise reasonable care to ensure that the transportation of hazardous substances would not cause injury and illness to the population of Paulsboro, including Plaintiffs; v. Negligently minimizing the risk of catastrophic injury and illness from the transportation of hazardous substances through the Paulsboro community; w. Failing to have an adequate emergency response plan; x. Failing to implement an emergency response plan in a timely fashion; y. Failing to have an emergency response plan to account for the predictive dispersion model regarding vinyl chloride monomer; and z. Failing to evacuate Paulsboro residents despite the fact that the predictive dispersion models indicated concentrations of vinyl chloride monomer were at dangerous and unhealthy levels As a direct and proximate result of Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company, CSX Transportation, Inc., Mark Mather, Wilbert Den Ouden, Ryan Hill, Ryan Keating, Garry Finningame, Jerry Kaminski and David Ohr s negligence, carelessness, and/or recklessness described in this Complaint, Plaintiffs suffered damages, including injuries to their eyes, respiratory systems, neurological injuries, injuries to their internal organs, including conscious pain, suffering and mental distress and the other losses set forth herein. WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. COUNT V NEGLIGENT SUPERVISION/ENTRUSTMENT All Plaintiffs v. Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company and CSX Transportation, Inc The above paragraphs are incorporated herein by reference as if the same were fully set forth herein. 20

24 124. The Railroad Defendants were responsible for hiring and training, managing, overseeing and supervising their agents, servants, employees, including but not limited to, the train engineer and dispatcher, concerning the operation of the freight train on November 30, The Railroad Defendants failed to train their agents, servants, employees, including but not limited to, the train engineer, conductor and dispatcher, concerning the operation of the train on November 30, The Railroad Defendants failed to determine properly the adequacy and skill of their agents, servants, employees, including but not limited to, the train engineer, conductor and dispatcher, concerning the operation of the train on November 30, The Railroad Defendants owed a duty of care to ensure that their agents, servants, employees, including but not limited to, the train engineer and dispatcher, were properly and adequately instructed and trained not to proceed across the East Jefferson Street Bridge when the bridge signal was illuminated red while transporting hazardous substances, including, but not limited to, vinyl chloride monomer The Railroad Defendants failed to instruct properly and adequately Defendants agents, servants, employees, including but not limited to, the train engineer and dispatcher, concerning safety and emergency procedures in the event of a possible derailment As a direct and proximate result of the Railroad Defendants negligent entrustment and negligent supervision of their agents, servants and employees, particularly their train engineer and dispatcher, Plaintiffs suffered damages, including injuries to their eyes, respiratory systems, neurological injuries, injuries to their internal organs, including conscious pain, suffering and mental distress and the other losses set forth herein.. 21

25 WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. COUNT VI MEDICAL MONITORING All Plaintiffs v. All Defendants 130. The above paragraphs are incorporated herein by reference as if the same were fully set forth herein As a result of the Defendants misconduct set forth above, Plaintiffs suffered significant exposure to vinyl chloride monomer, a potent human carcinogen The exposure to the hazardous and dangerous vinyl chloride monomer can lead to potentially severe health effects, which are oftentimes not immediately known As a proximate result of Defendants misconduct, Plaintiffs have been exposed to harmful and dangerous levels of vinyl chloride Plaintiffs, therefore, are at significantly increased risk of contracting serious diseases, including, liver cancer, brain cancer, angiosarcoma of the liver, Raynaud s syndrome and acro-osteolysis There are medical monitoring procedures that can alert persons, like Plaintiffs, to the early development of such serious and life threatening diseases Any medical monitoring is necessary according to contemporary medical and scientific principles and would be beneficial to Plaintiffs As a result of the Defendants misconduct set forth above, Plaintiffs are entitled to a medical monitoring program funded by Defendants, under court supervision, including but not limited to, testing and screening for latent medical conditions, in additional to costs and reasonable attorney s fees. 22

26 138. Plaintiffs have no adequate remedy at law because monetary damages alone will not compensate them for their wrongful exposure to vinyl chloride Accordingly, a monitoring program which ascertains the possible presence of illness/injury will aid their treatment to prevent greater harms. WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. COUNT VII NUISANCE All Plaintiffs v. All Defendants 140. The above paragraphs are incorporated herein by reference as if set forth herein The actions of the Defendants have created a nuisance condition on Plaintiffs property which has unreasonably interfered with each Plaintiffs use and enjoyment of their property, greatly impaired their quality of life and caused them to suffer injuries and damages set forth herein. WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. COUNT VIII TRESPASS All Plaintiffs v. All Defendants 142. The above paragraphs are incorporated herein by reference as if the same were fully set forth herein The actions and omissions of the Defendants set forth herein have caused vinyl chloride from the Defendants property to migrate and trespass onto Plaintiffs property. herein As a result of the trespass, Plaintiffs have suffered injuries and damages set forth 23

27 WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. COUNT IX PUNITIVE DAMAGES Plaintiffs v. Defendants Consolidated Rail Corporation, Norfolk Southern Railway Company and CSX Transportation, Inc Plaintiffs incorporate each and every allegation above as if set forth herein At all times material hereto, Defendants, by and through their agents, employees, workmen, servants, ostensible agents, and/or those under the direct supervision and control, knew or reasonably should have known that their conduct, acts, and/or omissions would result in substantial harm and/or illness to residents of Paulsboro, like Plaintiffs from the transportation of hazardous substances like vinyl chloride monomer across the East Jefferson Street Bridge Prior to November 30, 2012, Defendants knew or willfully and/or recklessly disregarded the dangers posed to the residents of Paulsboro, like Plaintiffs from the transportation of hazardous substances, like vinyl chloride monomer across the East Jefferson Street Bridge Despite such knowledge, and in willful, wanton, outrageous and reckless disregard for human life and safety, including the safety and well-being of Plaintiffs the Railroad Defendants nevertheless continued to utilize the dilapidated East Jefferson Street Bridge to transport transportation of hazardous substances, like vinyl chloride, though they knew that trains were prone to derailment and the bridge was susceptible to collapse which could injure and/or cause illness to Plaintiffs. 24

28 149. In fact, on November 30, 2012, the Railroad Defendants consciously disregarded a red signal light and proceeded across the East Jefferson Street Bridge with its hazardous and dangerous cargo, exposing individuals like Plaintiffs to the risk of catastrophic injury or illness In willful, wanton, outrageous and reckless disregard for human life and safety, including the safety and well-being of Plaintiffs, the Railroad Defendants crossed the unsafe bridge with their hazardous and dangerous cargo which spilled into the environment The Railroad Defendants conduct, as set forth above, was willful and wanton misconduct, was reckless, and evidenced a reckless disregard for human life and safety, including the safety and well-being of Plaintiffs As a direct and proximate result of the Railroad Defendants conscious disregard and willful conduct, Plaintiffs suffered injuries as set forth above for which Defendants must be punished. WHEREFORE, Plaintiffs claim of Defendants a sum in excess of local arbitration limits in compensatory damages and punitive damages, together with lawful interest thereon and costs of suit, and brings this action to recover the same. Respectfully submitted, DATED: May 2, 2013 /s/ Thomas N. Sweeney Joseph L. Messa, Jr. Thomas N. Sweeney MESSA & ASSOCIATES, P.C. 123 South 22nd Street Philadelphia, PA Telephone: (215) Facsimile: (215)