(The following story by Robert Bowden appeared on the Desoto Sun Herald website on December 28.)
ARCADIA, N.C. — A $500 million lawsuit by residents of Hull against CSX Railroad — and a second $1 million-plus suit against the railroad company — inched slowly through the DeSoto County court system in 2005.
So far, the suits have resulted in a 6-inch stack of legal papers in the Clerk of the Circuit Court’s office, but seem no closer to resolution.
It was a year ago this month that local attorney David Carlton, joined by two out-of-state cohorts, announced the largest lawsuit in DeSoto history. He would represent eight residents of Hull allegedly damaged by an old railroad creosote pit once operated in Hull.
From the south courthouse steps, the eight Hull plaintiffs, some holding children, stood before TV cameras as Carlton announced the $500 million lawsuit.
It was sensational news on an otherwise quiet Dec. 16, 2004.
CSX, Carlton said for microphones and print journalists, was responsible for all manner of ills among Hull residents, including cancers. The toxic creosote pit had ruined lives and ruined property values, he said.
Another attorney said the Peace River that winds south of the pit location remains so contaminated by pit residue that the water is not safe to drink, even with advanced purification treatment.
That water is taken from the river, treated to drinking water standards and pumped to residents of DeSoto and Charlotte counties.
Then, in February, a second lawsuit — this one seeking in excess of $1 million — was filed by Carlton against CSX. His three plaintiffs this time included the owner-operator of Nav-A-Gator on the Peace River.
CSX took some time to reply. When it did, the railroad giant denied all important allegations in each case. Yes, it agreed, it was CSX. No, it did nothing wrong. CSX attorneys also filed a motion to dismiss the lawsuits, citing 25 instances where it said the complaints were invalid. That motion was denied and replaced on Nov. 17 with a motion for a summary judgment. In essence, this motion again asks the court to throw the suit out.
To date, no judgment has been rendered and no trial date has been set.
The legal filings in the two cases reveal the back-and-forth, you-say/we-say arguments that could ultimately be presented a judge and jury. Neither Carlton’s plaintiffs nor CSX has indicated in legal filings a desire to compromise in an out-of-court settlement.
Indeed, in the CSX response to the original lawsuit, the railroad company says it always acted within the law and denies any responsibility for alleged damages and illnesses.
Hull is a small, unincorporated community off U.S. 17 south of Arcadia. From 1913 to 1952, railroad companies that eventually became CSX operated a pit west of Hull Avenue where railroad ties and pilings were chemically treated with creosote and arsenic.
The treatment helped the wood resist rotting and insects.
The lawsuits allege that chemicals now known to be cancer-causing leached into the ground, reaching properties owned by the Hull residents and contaminating the water that Nav-A-Gator drinks and uses for recreation.
The lawsuits say the result has been deadly cancers, numerous illnesses and decreased property values for Hull land residents.
CSX counters every contention that the old pit caused or continues to cause problems for Hull residents. Even if that were the case, CSX argues in court papers, the companies operating the pit abided by laws at the time.
The first suit, filed Dec. 16, 2004, says two current Hull residents suffer from cancer and two others have died of cancer. The suit contends chemicals used in the pits are the likely cause of the cancers.
To help argue his case, Carlton brought into the case two out-of-state attorneys who have specialized in environmental law. Archie Lamb and Marc Bern have each tackled environmental lawsuits around the country.
Following the initial lawsuit filing, CSX retained Sarasota attorney Lamar Matthews to handle its responses, Matthews has since registered with the court numerous other lawyers who might be involved if the case comes to trial.
To put the $500,000,000 damage amount into perspective, the city of Arcadia has an assessed value of $155,738,585.
Talk on the street bets the case will never come to trial, that CSX will not risk a jury award. But courthouse insiders disagree. CSX, they argue, cannot have the precedent a damage settlement would provide for future lawsuits.
Unless the suits are dismissed on legal technicalities — and CSX is arguing every fine point of law in its responses — this will go to trial, but that could still be years from now, they say.