Conrail challenges claim in Paulsboro lawsuit

Conrail and its parent companies, in a substantive response to one of a flood of lawsuits filed against them after the November train derailment and chemical leak in Paulsboro, maintain that they are "exempt from strict liability" for injuries and damages because they are common carriers legally obliged to transport hazardous freight.

The companies filed the response last Wednesday in the Court of Common Pleas in Philadelphia, where Conrail has its headquarters.

The strict standard of liability holds that the defendant is legally responsible for injuries regardless of intent or carelessness.

"The logic is, if you choose to, say, use dynamite in a construction project, you ought to be able to bear the risk that you injure someone. Common carriers don't have that choice," said Jay M. Feinman, a professor at the Rutgers-Camden School of Law. "By law, they have to accept shipments from anybody who pays the freight."

Some courts have departed from that rule, he said.

The suit, filed May 2 by 20 Paulsboro and Westville residents in the Philadelphia Court of Common Pleas, seeks compensatory and punitive damages, as well as medical monitoring to detect health risks related to significant exposure to the toxic chemical vinyl chloride.

"The Railroad Defendants engaged in an abnormally dangerous activity . . . in a manner the Railroad Defendants knew to be dangerous and without taking proper precautions," the suit alleges.

It adds that the railroad companies' "willful and reckless conduct" caused the derailment and subsequent spill of vinyl chloride.

The plaintiffs are represented by the Philadelphia firm Messa & Associates.

Nearly 700 residents had to leave Paulsboro, some for weeks, after a freight train derailed off an automated drawbridge, sending four tanker cars into Mantua Creek and releasing thousands of gallons of hazardous vinyl chloride into the atmosphere.

In their response, Conrail, Norfolk Southern Railway Co., and CSX Transportation Inc. argue that the complaint "does not contain factual allegations showing that Plaintiffs suffered any significant exposure to vinyl chloride, that such an exposure would put any specific plaintiff at a significantly increased risk of developing any specific disease, or that a reasonable and effective medical-monitoring regimen exists for that disease."

The response does not address the charge of negligence. At least a dozen lawsuits have been filed against Conrail in relation to the train derailment.

In an earlier response to a separate lawsuit, filed by more than 50 Paulsboro residents in the Court of Common Pleas, Conrail denied that there was a massive spill of vinyl chloride as a result of the collapse of the East Jefferson Street Bridge.

That response, filed in December, attributes any injuries sustained by the plaintiffs to their "own negligence."

"The bottom line is, if they're not held strictly liable, they were almost certainly negligent and they'll be held liable for negligence," said Mark R. Cuker, an attorney representing plaintiffs in the December suit.

His suit, which seeks medical monitoring and compensatory and punitive damages, does not hold Conrail to the strict liability standard.

at 856-779-3846, aseidman@phillynews.com or @AndrewSeidman on Twitter.