(The following report by Tony Cook appeared on the Cincinnati Post website on September 2.)
CINCINNATI, Ohio — A Hamilton County judge denied a temporary restraining order Thursday that would have prevented Indiana & Ohio Railroad from settling claims with residents and business owners affected by the rail car chemical leak and ensuing evacuation earlier this week.
Attorneys representing business owners and residents affected by the styrene leak near Lunken Airport, and the two-plus days of mandatory evacuation, are seeking class action status in a lawsuit against the railroad owners, Indiana & Ohio Railroad, and the chemical company that shipped the styrene, Westlake Styrene, of Sulfur, La.
At least 60 business owners and residents have joined the lawsuit so far, according to Colleen Hegge, one of the attorneys with a pending lawsuit.
They are seeking damages for economic losses, personal injury and emotional distress caused by the leak and evacuation. They are also seeking punitive damages.
Attorneys say it’s too early to determine how much will be sought, but it will likely be in the millions of dollars.
Those attorneys believe Indiana & Ohio Railroad is trying to obtain releases from liability from those who might join a class action lawsuit against them, in addition to simply gathering claim information and distributing cash payments to those affected by the leak.
Cincinnati Mayor Charlie Luken responded Thursday with the statement: “The railroad and the Westlake Company promised me that they would not ask our residents to sign waivers or releases. They broke their promise. We cannot allow the city to appear to endorse these settlements. Accordingly, the railroad and the Westlake Company have been ordered off city property.”
The railroad has set up a claims center at the LeBlond Community Center on Eastern Avenue.
“Apparently, they’re walking down the street trying to buy people out,” said Hegge.
She said the railroad company even called one of the business owners her firm represents to have him fill out a claims form.
She fears individuals impacted by the leak might sign away their ability to collect class-action damages in exchange for a quick claim based on receipts for expenses incurred. People may not realize they are entitled to punitive damages as well, she said.
Railroad spokespersons and attorneys wouldn’t say whether claim applicants were being asked to sign a release form.
In court Thursday, railroad attorney James O’Connell said residents and business owners are smart enough to know what they are doing.
“We will voluntarily tell them there are one or more class actions pending,” O’Connell said, accusing the plaintiff’s attorneys of treating residents and business owners “as if they were too dumb” to make informed decisions about settling with the railroad directly.
“There are actually people out there who would like to conduct their business without being guided by class-action counsel,” O’Connell said.
John Murdock, another attorney representing local businesses, told the judge that potential class-action members – which could include more than 1,000 people – should be allowed to settle with the railroad company on an individual basis, but not at the expense of giving up their rights to a class-action lawsuit.
Marsh, however, denied the restraining order, noting that there is no evidence that the rail company was engaging in any dishonest activity and that no class has been established yet. She said the court would wait until Wednesday to see if any other lawsuits were filed and then consolidate them before moving forward.
Five potential class-action lawsuits have been filed and attorneys in four of those agreed Thursday to consolidate their cases. A judge must still confer class action status in the suit.
In court action Wednesday, Marsh granted a temporary restraining order that prevents Westlake, Indiana & Ohio Railroad and other companies from altering any evidence related to the leak, including shipping documents, the rail car or any residual styrene left in the tanker.