In it, he reports on the settlement between the injured parties and the railroad companies involved in the September 2008 train wreck between Metrolink #111 and a Union Pacific freight train near Chatsworth, California. You may recall this; the engineer on the Metrolink train was texting while driving--A PASSENGER TRAIN--and didn't see the other train barrelling down on him at a closing speed of over 80 mph.
24 people died--first and foremost the texting engineer--and more than 100 more were injured.
Now, the rest of the story is that the train company admitted liability in the case; there was no point in even trying to defend themselves; they admitted they knew about the engineer's history of texting while driving their trains, and did little or nothing about it--if they did take disciplinary action against him, it wasn't enough, because he didn't stop doing it.
However, as Mr. Cohen points out, tort reform had been in place since the 1997 attempt to 'save' Amtrack. Specifically, the 1997 Amtrack Accountability and Reform Act included language that capped a rail company's liability to $200 million per accident or incident. So . . . in this case, Metrolink (or more correctly, those doing business as Metrolink) had to pay only $200 million, no matter how egregious their negligence or how many people were killed or injured.
So they paid $200 million to the court, and walked away. Per federal law.
Then the court had the unenviable task of equitably dividing up the $200 million amongst the victims of the accident. This was passed around from one judge to another until finally the Honorable Peter D. Lichtman settled the case.
In a 32-page opinion, Judge Lichtman details the accident, the forces and mechanics of the crash, sometimes with detail that would do an NTSB report proud. He also goes into detail about the injuries sustained by the survivors, how injuries in this type of accident are far worse than what are seen in most automobile or plane crashes (since both of those other modes of transport have seat belts and other restraint devices, and are generally engineered to improve survivability in an accident), and therefore those injuries are more likely to require follow-on care to a greater degree and for a greater length of time, than injuries from car or plane crashes. Furthermore, trains will seat people at tables; those facing the direction of travel at tables in this particular accident endured horrible, crushing injuries to their abdominal organs, as the first point of contact between themselves and the train was the edge of the table--at an initial impact velocity of around 80 mph. The injuries sustained by all the victims are also more likely to result in permanent disability and permanent loss of range-of-motion. He also details the prevelance of PTSD amongst the survivors. In addition, there were several families involved that have special-needs children, who now have greatly reduced capacity for support of those families and children.
He then calculates that the 'normal' range of the cost of a settlement in a case like this would be around $320 to $350 million, with a very low end of $264 million. But, thanks to the tort reform efforts of Congress and then-President Clinton, all they had to share was $200 million, and it was the court's task to parcel that out.
In this case Judge Lichtman introduces (or at least describes) a new legal doctrine that will become more and more prevalent as more and more tort reform takes place: triage. When the maximum legal remedy provided by law is inadequate, the court must then do the best it can with what the legislative and executive branches have left it. The worst injuries get the most, the lesser injuries get less, and practically no one gets enough to make things right.
As Mr. Cohen points out at the end of his column:
"I won't fight that policy [that tort reform takes away from the victims and survivors and gives to the corporations] on its merits, at least not here and now. Instead I'll make the case for false pretenses. When the American people are pitched 'tort reform' by their politicians, and the politicians' lobbyists, I don't believe the pitchees [that's you and me] understand the phrase encompasses the policy choice evidenced by the result of the Chatsworth case. Instead, I believe that the American people often are duped into believing that so-called 'tort reform' almost always has to do with a greedy plaintiff, a frivolous lawsuit, an ambulance chaser on the make, and a beleaguered corporation.
"Nor do I believe that most Americans understand how deeply 'tort reforms' undercut the fundamental democratic importance of the jury's verdict. Judge Lichtman's verdict is a testament to the neutering of the justice system--another policy choice which I don't believe has ever been sufficiently explained or justified to the American people."
(The sections in brackets are my own comments.)
And perhaps now is a good time to point out that during the last election cycle, according to Mr. Cohen's column, the U.S. House of Representatives' Transportation and Infrastructure Committee (the committee most directly responsible for oversight of rail transportation) received $52 million in campaign contributions from corporate political action committees, including $6 million from the transportation industry. And as Mr. Cohen points out, that's pretty good when you consider that this 'investment' saved one transportation company at least $64 million (and potentially $100 million more), thanks to 'tort reform' passed by Congress 14 years ago.
One last thing--if you're riding on a train, try to sit in the middle of the train, in a seat facing backwards. Avoid sitting at tables in a seat facing forwards at all costs; it actually might be better to stand than to sit at a table facing forward--in the worst-case scenario, the impact forces would at least be spread over a larger area. Maybe you could bring some nylon webbing and caribiners and make your own seat belt, too. If you're concerned about a post-crash fire (there was one in this case), maybe you might want to look at a PBE hood (another, more capable one here); on that, contact me and I'll share my opinions on the various distributors--some are more customer friendly than others. The fact of the matter is that rail transportation safety standards (and security standards!) don't measure up to the standards we've come to expect in aviation, for example. They ought to be, but they aren't, so it's up to you (caveat emptor!) to do what you think you need to do to ensure your own safety and survival, and that of your family and friends. It sucks to be unprepared and have to rely on those who either don't care enough to do what's right, or are not legally required to do what's right.
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