No Certification of Train Derailment Class Action

(CN) - A federal judge refused to certify a class of people who say they lost income when a freight train dumped 25,000 gallons of dangerous chemicals into a New Jersey creek.

The accident occurred on the morning of Nov. 30, 2012, when the East Jefferson Street railroad bridge in Paulsboro, N.J., allegedly failed to lock back into place for a freight train to cross after swinging open to let water flow along the creek.

Despite a red signal warning that the rails were not properly positioned that day, the train tried to cross and derailed. Four of its cars plunged into Mantua Creek below, flooding the air and water with 25,000 gallons of vinyl chloride, which locals call a potent carcinogen.

While nearly 600 residents were evacuated from the area for about a week, the borough told those living outside the danger zone to stay indoors until the spill was cleaned up.

Residents and local businesses later sued Consolidated Rail, Norfolk Southern Railway and CSX Transportation for their allegedly negligent train operation and bridge maintenance.

In addition to expenses or lost income, some residents say that the evacuation or other orders left them with mental or physical harm including coughing fits.

The cases were ultimately consolidated in New Jersey, where Donald Wilson, individually and dba Don's Barbershop, and Tracy Lee now serve as lead plaintiffs.

U.S. District Judge Robert Kugler declined to strike class allegations this past April but followed that order up last week with one that refused to certify the alleged "hundreds, if not thousands" of class members.

"While for the class representative, a barbershop, it is intuitive that the business relies upon a physical presence to generate revenue, it is not so clear that all 381 businesses with mailing addresses in the shelter-in-place zone have a similar business model," Kugler wrote. "The court cannot simply assume that each business organization with an address in a specified geographic area suffered income loss as a result of not being able to have its doors open to the public or to employees for a period of three days. It is not clear that many of the businesses on the preliminary list generate any income at all through operations in the affected area. A number of the listings appear to simply be the names of individual persons, which would appear to leave open the question of how they generate income, and whether they suffered income loss merely due to having an address in the affected area."

The defendants have shown they settled with 486 evacuees, the unpublished ruling states.

"Not only have plaintiffs failed to produce any evidence showing how many of the remaining residents meet the class definition, but evidence exists suggesting that some remaining residents would not be class members," Kugler wrote. "Defendants established an assistance center in Paulsboro, where evacuees could obtain reimbursement for expenses as well as gift cards for future expenses, without signing releases."

In fact, Wilson and Lee received more than $4,000 and $2,000, respectively, the ruling states.

"Finally, with annual revenue ranging from less than $50,000 to over $3,000,000, the potential 'disparities among class members'' damages is great, which weighs against a finding of predominance," the judge added.

The court also granted the defendants' unopposed motion to seal some documents that were submitted in opposition to the motion for class certification.

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