A request from some East Palestine residents to extend the amount of time they have to opt in to the $600 million class action settlement has been denied, according to court filings. A federal judge ruled that residents deserve timely compensation for the 2023 train derailment.
Norfolk Southern announced the settlement in April, which resolves a consolidated class action lawsuit related to the Feb. 3, 2023, train derailment. Some residents were disappointed that the settlement does not place liability on the rail company for any wrongdoing.
In denying the request, Judge Benita Pearson wrote that sufficient information about the $600 million settlement related to last year’s Norfolk Southern derailment was easily accessible and was provided to residents.
Attorney David Graham filed a motion on behalf of some East Palestine residents earlier this month asking the court to extend the timeframe, arguing that residents didn’t have enough information about contamination after the spill and vent and burn of toxic chemicals to make a decision.
One of the key complaints of the motion was that attorneys who represented residents in the lawsuit hadn’t disclosed any of the results of testing done around town by their own expert, Stephen Petty, who has testified in hundreds of lawsuits about contamination concerns, to determine the extent of the contamination caused when toxic chemicals spilled and burned after the derailment.
Some of the attorneys involved in the case promised residents in news interviews early on that Petty’s data would be disclosed in court filings to lay out the impact on East Palestine, so Graham asked the judge to order that information to be released to try to address residents’ concerns.
“Fast forward to their present, post-settlement posture and class counsel and their PR [public relations] machine have now forgotten all about their star testing expert, Petty,” Graham wrote.
Instead of Petty, the lawyers brought out a different expert at an online town hall meeting a couple weeks ago who told residents he didn’t think anyone in town would develop cancer as a result of the derailment, but Dr. Arch Carson didn’t make clear what data he relied on for that opinion other than a brief mention of tests from the U.S. Environmental Protection Agency.
Researchers studying the health of residents in the area and tracking respiratory problems, rashes and other ailments they are reporting have said it may not be clear for years what the long-term implications of the derailment will be.
“I completely disagree with Dr. Arch Carson – there is no research data that suggest that his statement is correct,” said Dr. Erin Haynes, who is leading one of the main studies in town and is chair of the Department of Epidemiology and Environmental Health at the University of Kentucky College of Public Health.
Graham suggested that the plaintiffs’ attorneys might be more interested in collecting their up to $180 million in legal fees than representing residents’ interests.
Judge Pearson wrote in her ruling that residents had enough time to investigate the settlement and make an informed, timely decision on whether to opt in.
The amount residents can receive varies by how close they lived to the derailment, with people who lived within 2 miles receiving $70,000 for property damage. People who lived at the outer edge of the area might only receive a few hundred dollars.
The plaintiffs’ lawyers have previously defended the settlement that was announced in the spring. They have said the settlement is bigger than any past derailment settlement that has been made public, and that the amount of time residents received to evaluate the deal is similar to other settlements.
Some residents have complained that the initial opt-out deadline in the lawsuit came less than a week after the National Transportation Safety Board held a hearing on its findings in the investigation.
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