FIVE YEARS OUT
Trains safer but victims left with debt
By Joan Trossman Bien 09/12/2013
Five years ago today, Sept. 12, Metrolink engineer Robert Sanchez failed to acknowledge three warning lights. He was too engrossed in texting a teen about sneaking the young man into the locomotive cab to illegally operate the train that night.
Metrolink #111 was almost finished with its run on that Friday afternoon from downtown Los Angeles to Ventura County. As the packed train rounded a blind curve a short distance past the Chatsworth station, a Union Pacific freight train came into view. With only four seconds before impact, Sanchez likely never even saw the powerful freight train bearing down on him. He never did apply the brakes. The trains smashed into each other head-on with such force that the Metrolink locomotive engine was shoved back 52 feet, telescoping most of the crowded first car. All but two of the 25 deaths occurred in that car. The remaining two passenger cars were also destroyed as they derailed. Another 135 people were injured, some critically and horribly.
Five years should be enough time to sort out who is to blame. Despite the evidence and the decision by the National Transportation Safety Board (NTSB), the French company Veolia and its subsidiary Connex still refuse to take any responsibility for their employee, whose astonishingly negligent behavior caused a catastrophic train crash.
Five years is a natural time for reflection on whether the system worked under such stressful circumstances. In this case, the system utterly failed the victims, who were left without adequate compensation due to a congressional cap on liability.
Are the trains any safer to ride now? Metrolink trains are, in fact, safer. But the other railroad companies, passenger and freight, are facing a statutory deadline of 2015 to get a safety system, positive train control (PTC), in place. The major freight railroads have not been on board with the new law, balking at the price.
Although the implementation of PTC has been at the top of the NTSB’s wish list for the past 20 years, Metrolink board member Keith Millhouse explained that the technology is lagging behind the deadline.
“It’s not that there’s this technology that existed that could have been put in place, it had to be developed,” Millhouse said. “The NTSB has been frustrated by the fact that they were being stymied by the freight railroads about positive train control.”
It may be a longer wait than expected for PTC to be implemented as the major railroad companies, excluding BNSF, have not committed to meeting the deadline at the end of 2015. A few former legislators, including John Thune, R-S.D., who sponsored the bill, are trying to get the deadline pushed back by five years.
The railroad industry has given Thune $672,836 in political contributions since 1998, according to OpenSecrets.org. Other former political heavyweights who are bill sponsors include Sen. Trent Lott , R-Miss.; John Breaux, D-La.; Sen. Roy Blunt, R-Mo.; Sen. Claire McCaskill, R-Mo., and former Republican governor of Mississippi Haley Barbour.
Ross Capon, CEO and president of the National Association of Railroad Passengers, said in an interview with The Associated Press, “It’s one thing to say we can’t get it all done by the end of 2015. It’s quite another thing to say we want a blanket, industrywide pass for five more years,” Capon said. “That’s suggestive of bad faith.”
At a rail safety hearing in June, Thune warned Congress of the evils of regulations. “I think it’s important that we as Congress be careful not to impose undue regulation on the railroad industry.”
The railroads have already convinced the president to reduce the number of miles of track that will require PTC, track where passengers and airborne hazmat chemicals travel. Originally set at 70,000 miles of track in 2008, that number has already been reduced to 50,000 miles. Plus, regulators gifted the railroads with something they have wanted for a long time: permission to install inferior, older and cheaper PTC.
It remains to be seen whether the railroad companies will bend to obey the law or the law will eventually bend to accommodate the railroads.
Metrolink leading the way
Millhouse usually attended a weekly meeting downtown on Fridays and took the #111 home to Moorpark. On Sept. 12, 2008, however, the meeting had been canceled and Millhouse did not ride the train that day. He usually sat in the first car. He believes he likely would not have survived the crash.
Anxious to improve train safety quickly, Metrolink equipped its trains with several new safety features.
Attorney Mark Hiepler examining a Metrolink train after the crash.
“They were first with inward-facing cameras; it was obviously motivated by the Sanchez situation,” Millhouse said. “We have surprise inspections and we have been in the process of changing out all of the (signal) lights in the system from incandescent signals to LED, which are much brighter.”
One of the first changes was ordering new passenger train cars that are designed with crumple zones to take the brunt of a collision. The tables that proved deadly in the train crash have been replaced with frangible tables.
“Metrolink is far and away the most technologically advanced railroad in the country in terms of safety,” Millhouse said. “The train cars that we got have saved lives already.”
Crash victims get short end
When Congress placed a $200 million cap in 1997 on any recovery for victims of a train crash, it felt it was doing the right thing. Amtrak needed protection against any future judgments large enough to wipe out the railroad. But after thorough investigations by the NTSB and by the judge who was handed the responsibility of disbursing compensation, it became clear that $200 million would not even come close to fully compensating everyone who was harmed in the crash.
Los Angeles Superior Court Judge Peter Lichtman was charged with dispensing the available funds. The cap on the payout became the biggest problem. Lichtman has since retired from the bench.
Judge Peter Lichtman.
“I’m not so sure the politicians understand,” Lichtman said. “You have all these intervening factors whenever you issue a statutory cap. Once you do that, it’s great to sit there and say, ‘Look how good we are at tort reform; we’re limiting the damages.’ I don’t think any politician understood the effect of the cap. They didn’t understand the ramifications”
Millhouse agreed. “When you put a cap like that in place you are basically making the statement that you don’t trust the jury system in this country,” he said. “It is kind of ironic that some of the people who voted for it now look back and say, maybe it wasn’t such a good idea. Yet people who weren’t impacted by it [the crash] in Congress don’t think it should be changed.”
Lichtman struggled with how to accomplish his task. “It was an extremely hard case,” he said. “The problem that I had to deal with forced me into making Sophie’s choices all over the place.” Lichtman devised a method for determining the amount of each person’s award.
“In order to do the opinion correctly, I made the decision to actually have them relive their situation with me so I can get on the train with them in an imaginary sense. Then get into their skin and realize what happened to them. That’s what I did.”
The judge’s approach yielded insights such as this one in his final judgment:
Almost all of the passengers that remained conscious through the ordeal and even those that were briefly rendered unconscious speak of (the) silence as being surreal. Many of the passengers thought that they had simply passed away and were experiencing death since the silence coupled with debris floating in the air along with the sun reflecting through the debris provided the sensation of another dimension.
Lichtman listened to each plaintiff and then privately decided what he would have awarded had the case not had a cap on damages. “I found out what the overage was and I was over by about $130 million.” The estimated damages determined by the plaintiffs’ attorneys were much higher, about $300 million over and above the statutory cap. But the court was given $200 million to compensate the victims.
The lead attorneys turned to Congress with their appeal to raise the cap so that compensation would actually cover the losses of the victims. “There was a great battle,” said attorney Mark Hiepler, who represented several of the passengers. “We got two bills in the legislature, the Senate, the House, and then we just couldn’t get it any further.”
Throughout this epic journey intended to sway Congress, Veolia, the French foreign company that was in charge of employees, refused to acknowledge that the injuries and losses far exceeded the cap. To this day, Veolia insists that $200 million is enough to fully compensate the plaintiffs.
One of techniques Lichtman employed was to triage the different levels of harm. “I was going to engage in triage, and whoever I gave to, I had to take from. There was never a comfortable moment. I knew once I started (with the most critically injured) there, it was all downhill emotionally for me. It was extremely gut-wrenching.”
Veolia and Connex dispute all findings
In an email response to a couple of brief questions, Veolia spokeswoman Valerie Michael articulated a very different view of the crash, one that contradicts the NTSB and Lichtman. As has been the case throughout the past five years, Veolia refused to answer any questions of depth. This article was no exception.
“N helpful purpose would be served to discuss the facts of the accident or its aftermath at this time,” Michael wrote.
The company denies its employee caused the wreck. “While there was substantial evidence that the accident resulted from other causes, … it is clear that the NTSB closely examined and found no fault with either the implementation of the strict Connex cell phone policy or the level of its supervisory or management oversight at the time of the accident.”
Connex had published a “fact sheet” rebutting all of the negative findings of the NTSB and the judge, calling them mere “claims.” Here is the explanation of some of the events.
“There remains considerable question as to how cell phone use was a cause when it is clear the engineer was engaged in manipulating all of the locomotive controls at appropriate points along the way as he approached the Topanga signal.”
The NTSB report has a different view of events.
“As shown by his wireless account records, the engineer habitually used his cell phone at times when he knew that any distractions from the task at hand could have serious safety consequences.”
The report shows that during the final 45 minutes of the engineer’s life, he was on the cell phone for 17 minutes while driving the train.
Hiepler was frustrated at Veolia and Connex’s reaction to the crash.
“They disappointed me, first by not acknowledging their culpability right away. They fought us for two years. Then they disappointed us secondly by not acknowledging the true costs as determined by the judge and, again, not compensating the people beyond that. … This company is extremely wealthy.”
When discussing caps and millions of dollars and liability, what has been lost is the extreme nature of most of the injuries. Lichtman said that where a passenger sat determined the nature and severity of the injuries. Some escaped with fewer injuries.
“The key to that success was facing the opposite direction of travel in one’s seat. One hundred percent of the ‘walk aways’ all faced the opposite direction of travel. Almost every table passenger sustained and suffered horrible abdominal injuries that cannot be medically resolved. Almost all of one’s vital organs were implicated for those at the tables,” Lichtman said.
The injuries sustained by the bench passengers were equally horrific. “All of the bench passengers were launched head/face-first into a bulkhead,” he continued. “The effect was to inflict gruesome injuries to the face and eyes. For the bench victims, descalping injuries were commonplace. These injuries likewise implicated the brain, and almost all of these passengers suffered traumatic brain injuries to varying degrees.”
Despite the severe nature of the injuries, the legislative cap on the compensation left most of the passengers with debts they never wanted or caused.
“If you get two-thirds of your medical bills paid, you still have to worry about that third surgery that isn’t going to be covered,” Hiepler said. “Each of these people continues to have the burden of the tragedy and then the burden of the expense or lack of full financing that their injury needs.”
Clark Aristei was also a lead attorney on the case. He was floored by Veolia’s failure to accept responsibility when culpability had been so well established.
“At the NTSB hearing, one of his (the conductor) bosses was asked, ‘So you have a policy against texting, you have an employee you know is texting, and you don’t do anything about it?’ The answer was that it was a problem they couldn’t get their arms around.”
Aristei was surprised by the reactions of his own clients when he asked them if they would speak to a reporter. All but one refused to participate.
That passenger was Frank Kohler of Simi Valley. Kohler had been a critical-care nurse for 35 years. He can no longer work at all. He was seated on a bench directly in front of the bulkhead.
Kohler said his basic personality has changed. “I always kept my cool. (Now) I can rocket out of control so fast, it’s very scary to me. I’m not able to work anymore in my chosen profession. I didn’t know how badly I was injured. I am no longer afraid of death.”
That shift was apparent when he attended his usual Simi Valley Fourth of July fireworks show. There was a terrible accident early in the show as fireworks tipped over and aimed right at the crowd, injuring several people. “I was sitting in the front row. I just sat there watching the fireworks shoot into the crowd. It never bothered me.”
During the hearings with the judge, Kohler’s attorney asked for damages of $1.8 million. “The judge said, under normal circumstances that would be a low-ball number.”
Kohler received $600,000, and from that paid his attorney fees, repaid his disability insurance company, and repaid his health insurance company.
“There should be a better way of compensating the victims,” he said. “You lead a clean life. You don’t do drugs or things like that and when something bad happens to you, there may be nothing you can do to make it come out right for you.”