(The following article by Rick Brundrett was posted on the State website on January 26.)
COLUMBIA, S.C. — Norfolk Southern could be laying the groundwork for lawsuits against other companies involved in the transportation of tons of chlorine that spilled in the Graniteville train wreck, some lawyers say.
The Virginia-based railroad in a lawsuit asked a federal judge to order 10 companies to preserve the three chlorine cars that derailed and other accident scene evidence, according to court papers obtained Tuesday by The State.
Norfolk Southern, which had revenues last year of more than $5 billion, could face tens of millions of dollars in damages from the Jan. 6 wreck that killed nine, injured more than 500 and caused the evacuation of about 5,500, plaintiffs’ lawyers say. It was the worst U.S. railroad crash of its kind since 1978.
As of Tuesday, at least a dozen suits against Norfolk Southern had been filed in circuit court in Aiken County.
USC law professor James Flanagan said it was a “legitimate possibility’’ that Norfolk Southern might be aiming to sue other companies.
But he said it would be very difficult for the railroad to prove anyone else was liable for the chlorine spill, which happened Jan. 6 when a Norfolk Southern train ran into another one.
“You would have to show that the cars were defectively manufactured in some way,” Flanagan said.
Norfolk spokesman Robin Chapman said the railroad isn’t looking to spread out its potential liability with its suit, which was filed in U.S. District Court in Aiken eight days after the wreck.
“That is not the intent of the suit,” he said. “It’s just simply to ask the court to assume jurisdiction over the evidence so there is no argument later over the handling of the evidence.”
Norfolk also is trying to move some of the state suits against it into federal court, said Miami lawyer Howard Spier, whose firm had filed five suits against the railroad as of Tuesday.
Spier said defendants often try to move cases into federal court to make it harder to be certified as a class-action case.
Spier said while Norfolk Southern might not want to sue its customers, it might decide to do so if it believes its financial stability is threatened by the Graniteville suits.
“I wouldn’t be surprised for the railroad to look far and wide,” he said.
Barnwell lawyer Terry Richardson, who has filed a class-action suit against the railroad, agreed. “They’re going to look at anybody they can to help them pay their bills.’’
Mike Duffy, manager of the Rhodia Inc. plant in Charleston, said Tuesday he isn’t worried about Norfolk seeking damages from his company, one of 10 defendants named in Norfolk’s suit.
“I think Norfolk Southern is an up-and-up company,” he said. “This filing is not unusual in derailment cases.”
The Rhodia plant, which uses chlorine to manufacture pharmaceutical and other products, was scheduled to receive two of the three 90-ton chlorine cars that derailed, Duffy said, including the one officials said leaked about 60 tons.
He said his plant typically uses about 500 to 600 tank cars of chlorine per year.
The cars that derailed in Graniteville were leased by the Olin Corp., based in Connecticut, according to Norfolk’s suit. The National Transportation Safety Board said the 42-car train was heading from Augusta, which has an Olin plant, to Columbia.
Efforts to reach Olin officials were unsuccessful Tuesday. The company bills itself as one of the nation’s largest chlorine producers, according to its Web site.
The owner or manufacturer of the chlorine car that leaked was identified in Norfolk’s suit as the Union Tank Car Co., based in Chicago.
Efforts to reach Union Tank officials were unsuccessful Tuesday.