train-engineIn June of this year, railroad tanker cars known as “DOT-111’s” were at the epicenter of an explosion in Quebec that killed 47 people. As far back as 1991, the National Transportation Safety Board (NTSB) warned that the DOT 111’s have a serious design flaw: in the event of a derailment, they could split open causing an explosive chain reaction, and leading to a fiery deadly accident that could kill hundreds of people and destroy whole neighborhoods. Considering that there are nearly 100,000 of these rumbling tanker cars in use today. Each car can hold approximately 30,000 gallons of ethanol or oil, in trains often stretching a mile long. In fact, nearly 70% of the entire nation’s ethanol moves by rail.

Now imagine that mile-long train with dozens of DOT-111’s, all loaded with ethanol or oil, running on the tracks every day just a few paces from your backyard.   Based on the research of countless experts, it’s not a matter of if a disaster will occur, but when.

Unlike a trial, where two expert witnesses use accepted scientific methods and typically disagree about the responsibility and liability arising from a prior event, this time experts are warning us about a virtually guaranteed future catastrophe if nothing changes. And once again, the experts are speaking, but nobody is listening.

There really shouldn’t be two sides to this story. There may be issues of cost and time. Indeed, those are precisely the facts that are at issue, as the replacement or improvement cost is roughly $1 billion.  Considering that the industry’s total derailment cost last year was a “mere” $64 million, one can readily understand the industry’s reluctance to pay $1 billion in order to help prevent a portion of the $64 million pittance that they suffer annually.

This is an issue that has been known to the railroad industry for over twenty years, and to date, only about 25% of the “fleet” has been replaced or upgraded.

Perhaps this is really a risk analysis question rather than an engineering issue. But twenty years of relative inaction has only served to increase the risk and cost of liability as the DOT-111’s continue to age and the neighborhoods through which these trains travel become more densely populated.

The use of expert witnesses at trial has concrete and virtually immediate consequences upon the parties. Unfortunately, the reliance upon experts prior to an accident is nothing more than advisory and is placed into an algorithm of risk analysis.

But there will come a time when a horrible disaster will occur, with devastating economic and life consequences, and the railroad engineering experts, the “canaries in the coal mine,” who have been ignored for over two decades, will suddenly be the experts testifying about how much one or more rail companies should compensate victims whose loss could have and should have been prevented, had they only listened to the experts.

Doubtless, after trial a jury might call for extraordinary damages due to the willful avoidance of a known potential catastrophe, which will probably lead to another call for tort reform.

With each passing day, the warnings of prior engineering experts get closer and closer to prophecy, and the current engineering experts and lawyers need to stand by patiently as this locomotive travels precariously.

By: Rodney Warner, J.D.