Fisher, Gould & Holzer Suit

Case: 4:23-cv-00350 Doc #: 1 Filed: 02/23/23 1 of 32.
PageID #: 1
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION, YOUNGSTOWN
WILLIAM LEE FISHER, HELEN GOULD, ) Case No.

DONNA HOLZER, ROBERT HOLZER, )
TAYLOR HOLZER, MELINDA HUTTON, ) JUDGE:
JENNIFER KIDDER, JOSEPH KIDDER, )
JULIE RICHEAL, KEITH RICHEAL, ) CLASS ACTION COMPLAINT
GEORGE A. PSOMAS, individually and on )
behalf of all others similarly situated, ) JURY TRIAL DEMANDED
)
Plaintiffs, )
)
)
v. )
)
NORFOLK SOUTHERN CORPORATION, )
NORFOLK SOUTHERN RAILWAY )
COMPANY, ABC CORPORATIONS 1-20 )
(Names Unknown) )
)
Defendants. )
INTRODUCTION
Plaintiffs William Lee Fisher, Helen Gould, Donna Holzer, Robert Holzer, Taylor
Holzer, Melinda Hutton, Jennifer Kidder, Joseph Kidder, Julie Richeal, Keith Richeal, and
George A. Psomas, by their undersigned attorneys, allege upon personal knowledge as to
themselves and their own actions, and upon information and belief, including the investigation of
counsel, as to all other matters, as to which allegations they believe substantial evidentiary
support exists or will exist after a reasonable opportunity for further investigation and discovery,
as follows:
I. NATURE OF THIS ACTION

Case: 4:23-cv-00350 Doc #: 1 Filed: 02/23/23 2 of 32. PageID #: 2
1. This is a class action brought on behalf of thousands of individuals and businesses
damaged by the derailment of Norfolk Southern Freight Train 32N in East Palestine, Ohio on
February 3, 2023.
2. Of the dozens of cars that derailed, at least eleven contained hazardous materials,
including vinyl chloride, a highly combustible compound classified by the EPA as a Group A
human carcinogen (i.e., the deadliest). Exposure to vinyl chloride affects the cardiovascular,
respiratory, and central nervous systems, and can cause difficulty breathing, lung irritation, chest
pains, coughing, dizziness, headaches, eye irritation, loss of consciousness, and even death.
3. Although firefighters worked tirelessly for days trying to contain the resulting
blaze, they were unable to extinguish the conflagration. And as the temperature of the of cars
containing the vinyl chloride rose, so did the risk of a catastrophic explosion. Although the cars
were equipped with emergency relief valves designed to prevent dangerous pressure levels by
venting the car’s contents to the atmosphere, the valves malfunctioned. Due to the imminent
threat of a deadly explosion, residents had to be evacuated from their homes.
4. On February 6, 2023, three days after the derailments, Defendants performed a
"controlled release" of the vinyl chloride. That procedure entailed dumping the cancer-causing
substance into a trench, setting it afire, and waiting for the vinyl chlorine to burn off into the
atmosphere. Unfortunately, when vinyl chloride burns, it releases other toxic chemicals,
including hydrogen chloride and phosgene, a chemical warfare agent used in World War I now
banned by the Geneva Convention. The toxic mushroom cloud of black smoke could be seen for
many, many miles.
5. On February 8, 2023, five days after the derailment, the fire was finally
extinguished. But the damage was done. More than a million pounds of vinyl chloride had been
emitted into the environment. That is more than twice the total annual vinyl chloride emissions
of all industrial emitters in the United States combined.
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6. As a direct consequence of Defendants’ reckless and negligent actions and/or
omissions, Plaintiffs and the Class members have suffered and will continue to suffer substantial
damages, including but not limited to decreased property values, damage to real and personal
property, out-of-pocket expenses, lost wages, loss of business income, loss of business goodwill,
and medical monitoring expenses.
7. Accordingly, Plaintiffs bring this suit on behalf of themselves and similarly
situated residents and businesses in close proximity to the derailment site, seeking financial
compensation for these injuries. Plaintiffs also seek injunctive and equitable relief, including
testing and cleaning protocols to abate the toxic discharges, as well as the creation of a fund to
finance medical monitoring services to screen, prevent, and treat injuries caused by the toxic
chemicals released as a result of the derailment and so-called “controlled release” of the toxic
chemicals.
II. JURISDICTION AND VENUE
8. This Court has subject matter jurisdiction over this action under 28 U.S.C. §
1332(d)(2), as amended by the Class Action Fairness Act of 2005, because the amount in
controversy exceeds $5,000,000, exclusive of interests and costs, and because this is a class
action in which the members of the classes and Defendant are citizens of different states. This
Court also has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
9. This Court has jurisdiction over the parties because Defendants conduct
substantial business in this District and intentionally and regularly availed themselves of the
markets and jurisdiction in this District.
10. Venue is proper in this District pursuant to 28 U.S.C. § 1391(a)(1) because most
of the events, actions, inactions, decisions, wrongful conduct, and transactions complained of
herein occurred in this District.
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III. PARTIES
RESIDENTS AND INDIVIDUALS
11. Plaintiff William (Bill) Lee Fisher resides at 484 E Main St., East Palestine, Ohio,
within a mile of the site of the Norfolk Southern Freight Train 32N derailment. Bill lives with
his two sons, Logan W. Fisher and Lance M. Wolfe, as well as Lance’s wife and two young
children. On February 3, 2023, Bill’s son yelled out “look out the window dad!” and directed
Bill to the massive fireball outside his window. Bill recalls the next day, while walking through
his living room, he was struck with a sudden bout of dizziness, something he had never
experienced before, which caused him to fall into his love-seat. Bill and his family were forced
to evacuate their home in the aftermath of the derailment of Norfolk Southern Freight Train 32N,
and stayed in a hotel in Boardman. Since the derailment, Bill has experienced intense coughing,
sharp pain in his head, shortness of breath whenever doing manual labor, and unpredictable
dizziness spells. Bill is a truck driver by trade and has lost work due to illness and exhaustion.
Since the derailment, there continues to be an unusual odor in and around Bill’s home. As a
result of Defendants’ conduct and omissions complained of herein, Bill has suffered substantial
injuries including decreased property value, damage to real and personal property, lost wages,
and out-of-pocket expenses. Bill seeks to be a class representative for the Resident and
Individual Class.
12. Plaintiffs Joseph and Jennifer Kidder reside at 555 E. Main Street, East Palestine,
Ohio and were forced to evacuate their home in the aftermath of the derailment of Norfolk
Southern Freight Train 32N. The Kidders moved to a hotel in Salem for seven nights. They
were told that they could return home on the 8th or 9th but stayed away until their water was
tested. As a result of Defendants’ conduct and omissions complained of herein, Plaintiffs Joseph
and Jennifer Kidder suffered substantial injuries including decreased property value, damage to
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real and personal property, and out-of-pocket expenses. The Kidders seek to be class
representatives for the Resident and Individual Class.
13. Plaintiffs Robert and Donna Holzer reside at 696 Neely Manor, East Palestine,
Ohio and were forced to evacuate their home in the aftermath of the derailment of Norfolk
Southern Freight Train 32N. The couple raises their grandson, Taylor Holzer, who lives with
them. The Holzers have approximately 100 rescue animals, including parrots, foxes, coyotes,
and a wolf dog. After the derailment, some of the animals have suffered swollen faces, weeping
eyes, and stomach ailments. As a result of Defendants’ wrongful conduct, the Holzers have
suffered substantial injuries including decreased property value, damage to real and personal
property, and out-of-pocket expenses Robert and Donna Holzers seek to serve as class
14. Plaintiff Melinda Hutton resides in Salem, Ohio, approximately 20 miles from the
location of the train derailment. After the derailment, Ms. Hutton noticed a strange odor in her
home and her dog became ill and started to vomit. In addition, Ms. Hutton’s eyes burned, she
developed a headache, experienced difficulty and pain while breathing. Ms. Hutton has several
friends in the area who had similar experiences with their pets as a result of the derailment. Ms.
Hutton lives on a farm with goats and horses and fears for their health. Ms. Hutton uses well
water from her property, and she is concerned that her water source is now contaminated or will
be contaminated due to the derailment. As a result of Defendants’ conduct and omissions
complained of herein, Ms. Hutton suffered injuries including decreased property value, damage
to real and personal property, and out-of-pocket expenses. Ms. Hutton seeks to serve as a class
representative for the Resident and Individual Class.
15. Plaintiffs Keith and Julie Richeal live approximately five blocks from the
derailment site and were forced to evacuate their home in the aftermath of the derailment of
Norfolk Southern Freight Train 32N. Below is a picture taken from the Richeal’s property
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following the derailment. The Richeals stayed at a hotel and then later, at a friend’s house. As a
result of Defendants’ conduct and omissions complained of herein, the Richeals have suffered
injuries including lost wages, decreased property value, damage to real and personal property,
and out-of-pocket expenses. The Richeals seek to serve as class representatives for the Resident
and Individual Class.
16. Plaintiffs George A. Psomas and his mother, Helen M. Gould, reside at 365
Columbia St., East Palestine, Ohio, approximately 3000 feet from the derailment site. George
and Helen were likewise ordered to evacuate. The night of the derailment, Helen saw the
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enormous fireball from her window and both Helen and George suffered burning eyes and
nausea and subsequently felt sick. As a result of Defendants’ conduct and omissions complained
of herein, George and Helen have suffered injuries including decreased property value, damage
to real and personal property, and out-of-pocket expenses. George and Helen seek to be class
BUSINESSES
17. Plaintiff Taylor Holzer runs an Ohio business in East Palestine, Ohio, which
was forced to close due to the evacuation. Taylor raises domesticated foxes, which he sells as
pets. One of the foxes died from the fumes caused by derailment of Norfolk Southern Freight
Train 32N, and two others miscarried. Another broke its leg trying to escape after the
explosions. A veterinarian treated one of the foxes for vinyl chloride exposure. Tests showed
the animals had lung inflammation and elevated liver values. All told, Taylor has spent
approximately $8,000 on treatment for the animals. As a result of Defendants’ conduct and
omissions complained of herein, Taylor suffered injuries including decreased property value,
out-of-pocket expenses, damage to personal property, lost wages, loss of business income, and
loss of business goodwill. Taylor seeks to serve as a class representative for the Business Class.
DEFENDANTS
18. Defendant Norfolk Southern Corporation (“NSC”) is a Virginia corporation with
a principal place of business in Atlanta, Georgia.
19. Defendant Norfolk Southern Railway Company (“NRSC”) is a wholly owned
subsidiary of NSC and a Class I railroad corporation organized under Virginia law with a
principal place of business in Atlanta, Georgia. NSRC operates approximately 19,300 route
miles in 22 states and the District of Columbia and serves every major container port in the
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eastern United States.1
20. Upon information and belief, NSRC has consistently held itself out as conducting
business affairs as a conduit for NSC in connection with the ownership and operation of their
railway enterprise. Additionally, NSC and NSRC constituted a joint venture in connection with
their railway enterprise inasmuch as they agreed to undertake ownership and operation of the
enterprise jointly for the purpose of sharing associated profits and losses, and in connection
therewith, each contributed their respective skills, property or resources in exercising control or a
right of control over the facilities.
21. NSC and NRSC (collectively, “Norfolk Southern”) is a major transporter of
industrial products, including agriculture, forest and consumer products, chemicals, metals, and
construction materials. In addition, Norfolk Southern operates the most extensive intermodal
network in the East and is a principal carrier of coal, automobiles, and automotive parts.
22. Defendants ABC Corporations 1-20, names unknown and addresses unknown, are
believed to be predecessors, successors-in-interest or other separate corporate entities involved
in, related to, or otherwise participating in the manufacture, transport, maintenance, control,
oversight, monitoring, inspection, stabilization, or design of the Norfolk Southern freight train
that derailed in East Palestine, Ohio on February 3, 2023 and/or its contents. Plaintiffs could not
discover, despite the exercise of reasonable diligence, the names of these defendants. Upon
information and belief Defendants ABC Corporations 1-20 actively participated in the
transportation or storage of the vinyl chloride at issue in this litigation, and as such owed duties
of care in that regard.
1
http://www.nscorp.com/content/nscorp/en/about-ns/corporate-profile.html
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IV. FACTS
23. NSC touts itself as “one of the nation’s premier transportation companies.”2
However, according to the Federal Railroad Administration (“FRA”), NSRC has had more
accidents in Ohio and Pennsylvania since 2019 – 141 in total – than any other railroad company.
24. Norfolk Southern’s most recent derailment took place on the evening of Friday,
February 3, 2023 at approximately 9 p.m. Norfolk Southern Freight Train 32N was on its way to
Conway, Pennsylvania from Madison County, Illinois when an alarm sounded indicating a
mechanical issue with a malfunctioning railcar axle. A wheel bearing had overheated, which
caused the train to catch fire. The train nevertheless continued to travel ablaze through Salem,
Ohio (approximately 20 miles west of the derailment site) toward East Palestine.
25. Notably, this was not the first time Norfolk Southern Freight Train 32N had
experienced problems on the route. In fact, it had broken down at least once before. Employees
familiar with the matter believed the train's excessive length and weight — approximately 151
cars, 9,300 feet long, 18,000 tons —contributed to both the initial breakdown and the subsequent
derailment.3 Worse still, the train was backloaded with 40% of its weight, the heaviest tanker
cars, at the rear.
26. When an emergency brake was eventually applied, the train derailed and spilled
millions of pounds of toxic and highly combustible chemicals, which ignited. Those toxic
chemicals included vinyl chloride, butyl acrylate, ethylhexyl acrylate, isobutylene, ethylene
glycol monobutyl ether, diethylene glycol, hydrogen sulfide, hydrogen cyanide, and benzene.
27. Despite the immediate dangers posed by the highly toxic chemicals spewing from
the wreckage, Norfolk Southern failed to immediately report the derailment as required by
2
http://www.nscorp.com/content/nscorp/en/about-ns/corporate-profile.html
3
https://www.cbsnews.com/news/ohio-train-derailment-east-palestine-norfolk-southern-excess-size/
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federal law. See 49 C.F.R. § 225.9(a)(2)(iv). Norfolk Southern did not report the trainwreck to
federal authorities until approximately two hours after the derailment.
28. Aerial photos taken at the time showed a gnarled entanglement of railcar
wreckage engulfed by fire and heavy smoke, discharging a toxic mix of chemicals into the
surrounding communities’ air, water, and soil. The conflagration was large enough to be detected
by a weather radar approximately 50 miles away in Pittsburgh, Pennsylvania. Its smoke plume
was blown to the south and east due to a northwest wind that was blowing over the fire, traveling
at least as far as Bridgewater, Pennsylvania at that time.
29. Norfolk Southern Freight Train 32N was transporting at least five cars containing
more than a million pounds of vinyl chloride, a potent carcinogen linked to liver cancer, brain
cancer, breast cancer, and blood cancer. Vinyl chloride can travel through soil and groundwater
or convert to a gas and travel with the wind. It is also normally colorless and odorless and when
ingested through the lungs, skin, or mouth, can cause grievous injuries to the nervous system,
cardiovascular system, lungs, liver, kidneys, and reproductive system.
30. As the wreckage fires burned, the temperature of the railcars carrying the vinyl
chloride climbed, as did the pressure inside the railcars and the risk of a catastrophic explosion.
Although the cars were equipped with emergency relief valves designed to vent their contents to
relieve pressure in such emergencies, the valves malfunctioned as a result of poor maintenance.
Due to the growing risk of a deadly explosion, nearby residents were evacuated from their
homes.
31. At 4:30 p.m. on Monday, February 6, 2023, Defendants performed a “controlled
release” of the vinyl chloride by intentionally blowing holes in cars and dumping their cancer-
causing contents into a crude trench and then igniting the vinyl chloride to burn off into the
atmosphere. However, burning vinyl chloride merely releases a host of other toxic chemicals,
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including the chemical warfare agent, phosgene gas. Phosphate gas is colorless gas used as a
chemical weapon in World War I that is colorless but six times deadlier than chlorine gas.
32. Following the explosive and fiery “controlled release,” a large plume of thick
black smoke formed a mushroom cloud, which dispersed toxic gases into the atmosphere:
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33. The “controlled release” of vinyl chloride released hundreds of thousands of
pounds of toxic gases, including phosgene and hydrogen chloride, into the air. Particulate
pollution from the fire was reported as far as 30 miles around the derailment site. For instance,
on February 6, the EPA detected five times the particulate level in Youngstown, Ohio -- 23 miles
from the derailment site – than detected prior to the derailment.
34. In the days since the derailment, fears about a broader environmental disaster in
East Palestine and neighboring areas have been mounting. According to the Ohio Department of
Natural Resources, at least 3,500 fish have died from local waterways including the Ohio River
becoming contaminated. And local residents have experienced chickens, rabbits, foxes and other
animals falling ill and dying. Meanwhile, a pungent odor remains in the air in East Palestine,
and some residents have complained of rashes, runny eyes, and other symptoms.
35. The spread of toxic pollutants from the trainwreck damaged Plaintiffs’ properties
and interfered with their ability to use and enjoy their properties. Plaintiffs and Class members
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continue to live in the shadow of the toxic wreckage. Hazardous chemicals continue to seep
through soils, contaminating groundwater and surrounding properties. These properties have
suffered and continue to suffer a diminution in value by virtue of their proximity to site of the
derailment, and the stigma associated with being located so near the environmental disaster.
36. The derailment, subsequent chemical spill, and fire were caused by the
negligence, carelessness, recklessness, and/or intentional acts of Defendants in the ownership,
operation, inspection, maintenance, and repair of the subject train, rail cars, and track system, as
well as the design and performance of the “controlled release.”
37. As a direct and proximate result of the acts and/or omissions of Defendants,
Plaintiffs were caused to suffer damages, including, but not limited to decreased property values,
out-of-pocket expenses, damage to real and personal property, lost wages, loss of business
income, and loss of business goodwill.
Plaintiffs will require clinical evaluations, epidemiological analyses, and a Court supervised
medical monitoring program to determine the impact of the hazardous chemicals on their health.
Plaintiffs were forced to leave the peace and enjoyment of their homes, their outdoor property,
their streets, their yards, parks, and/or their businesses following the release of harmful and
obnoxious quantities of hazardous and ultra-hazardous chemicals and from the threat of
explosion resulting from high concentrations of the highly flammable chemicals.
Plaintiffs were caused to suffer economic repercussions from the closure of businesses, the loss
of business opportunity, business interruption, loss of income and wages, and the inability to
transact business and the loss of good will.
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V. CLASS ACTION ALLEGATIONS
41. Plaintiffs bring all claims herein as class claims pursuant to Fed. R. Civ. P. 23.
The requirements of Rule 23 (a), (b)(2) and (b)(3) are met with respect to the classes defined
below.
A. Class Definitions
42. Plaintiffs seek to certify the following classes:
(a) Business Class – Businesses located within the geographic region
extending up to 30 miles from the location of the February 3, 2023 Norfolk Southern Freight
Train derailment in East Palestine, Ohio. The Class Representative for this Class is Taylor
Holzer.4
(b) Resident and Individual Class – Residents and other non-resident
individuals that either resided or worked within the geographic region extending up to 30 miles
from the location of the February 3, 2023 Norfolk Southern Freight Train derailment in East
Palestine, Ohio. The Class Representatives for this Class are William Fisher, Helen Gould,
Donna Holzer, Robert Holzer, Melinda Hutton, Jennifer Kidder, Joseph Kidder, Julie Richeal,
Keith Richeal, and George A. Psomas.5
Excluded from the Classes are: (1) Defendants and any of their affiliates, parents or
subsidiaries; all employees of Defendants; all persons who make a timely election to be excluded
from the Classes; government entities; and the judges assigned to this case, their immediate
families, and court staff; and (2) insurers and insurance syndicates whose claims for damages
regarding the February 3, 2023 train derailment and resulting toxic chemical explosion arise out
of a right of subrogation, whether equitable, contractual, or otherwise.
4
Plaintiffs reserve the right to amend this class definition, if necessary.
5
Plaintiffs reserve the right to amend this class definition, if necessary.
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B. Numerosity
43. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(1) because Class
members are so numerous that the joinder of all members is impractical. Although the exact
number of Class members is unknown to Plaintiffs at this time, it is ascertainable and includes
thousands of residents and businesses.
C. Commonality
44. There are questions of law or fact common to each of the classes, including at
least the following:
a. Whether Defendants negligently operated, maintained, controlled,
oversaw, inspected, or monitored Norfolk Southern Freight Train 32N and
its contents;
b. Whether Defendants’ acts or omissions as set forth above caused the
derailment, fire, subsequent leak of toxic chemicals, resulting explosion,
contamination and evacuation;
d. Whether Defendants acted with conscious disregard for the safety and
health of Plaintiffs and the Class members;
e. Whether Defendants’ actions created a nuisance;
e. Whether Defendants’ actions constitute negligence per se;
f. Whether Defendants are strictly liable;
g. Whether Defendants’ actions constitute trespass;
h. Whether Defendants are liable for the defective and unreasonably
dangerous conditions on Norfolk Southern Freight Train 32N, resulting in
the Plaintiffs’ and Class members’ exposure to the hazardous chemicals;
j. Whether Defendants’ misconduct, violations of federal, state, and local
laws, and breaches of legal duties owed to businesses and residents of the
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community in the transporting, containing and storage of hazardous
substances resulted in the Plaintiffs’ and Class members’ exposure to the
hazardous chemicals.
D. Typicality
45. Plaintiffs have the same interests in this matter as all other members of the
Classes, and their claims are typical of all members of the Classes.
E. Adequacy
46. Plaintiffs are committed to pursuing this action and have retained competent
counsel experienced in class actions. Plaintiffs will fairly and adequately represent the interests
of the Class members and do not have interests adverse to the Classes.
F. Common Questions Predominate, and the Class Action Device Is Superior Under
Rule 23(B)(3)
47. The common questions of law and fact enumerated above predominate over
questions affecting only individual members of the Classes, and a class action is the superior
method for fair and efficient adjudication of the controversy. The likelihood that individual
members of the Classes will prosecute separate actions is remote due to the extensive time and
considerable expense necessary to conduct such litigation. This action will be prosecuted in a
fashion to ensure the Court’s able management of this case. Further, there is little or no interest
by members of the Classes in individually controlling the prosecution of separate actions.
G. Rule 23(b)(2) Certification is also Appropriate
48. A class pursuant to Rule 23(b)(2) is also appropriate because Defendants have
acted or refused to act on grounds generally applicable to all members of the Classes, thereby
making appropriate preliminary and/or injunctive relief, and/or corresponding relief, in respect of
the Classes as a whole, including but not limited to a Court supervised medical monitoring
program.
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COUNT I - NEGLIGENCE
49. Plaintiffs allege all previous paragraphs as if set forth fully herein.
50. Defendants actively participated in the transportation, maintenance, stabilization,
control, oversight, inspection, and monitoring of Norfolk Southern Freight Train 32N, and as
such owed duties of care in that regard. Defendants owed a heightened duty to Plaintiffs and the
Classes as a common carrier and as a transporter of hazardous chemicals to exercise due care in
transporting, maintaining, stabilizing, controlling, overseeing, inspecting, and/or monitoring the
Norfolk Southern Freight Train 32N, its contents, and the rails upon which the train operated.
Additionally, Defendants owed a duty to maintain, monitor, oversee, inspect, and/ or control how
Norfolk Southern Freight Train 32N was operated to avoid the release of harmful quantities of
toxic chemical substances and materials. Defendants also owed a duty to prevent the
inappropriate emission of toxic chemicals into the environment, especially into residential
settings.
51. Defendants breached these duties, and others, by negligently transporting,
maintaining, stabilizing, controlling, overseeing, inspecting, and/ or monitoring Norfolk
Southern Freight Train 32N, its contents, and the rail line upon which the train operated.
Further, Defendants breached this duty by performing the “controlled release” of extremely
combustible and hazardous chemicals. Among other things, Defendants failed to operate,
maintain, inspect, and/or repair the railway and railcars to ensure their safety and proper
operation; failed to ensure proper mechanism for stopping malfunctioning railcars without
derailment; failed to ensure proper safety procedures in the event of a mechanical malfunction of
equipment; failed to load the railcars consistent with accepted practice; failed to adequately staff
the railcars; failed to adequately train and supervise their agents and employees (including the
train engineer and dispatcher operating the train at the time of the derailment); failed to
adequately warn those in danger of exposure to hazardous materials; failed to institute proper
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procedures in the event of a derailment to avoid exposing the environment to hazardous
materials; failed to timely implement an emergency-response plan in the event of a derailment;
failed to properly dispose of hazardous materials from the derailment site; and failed to contain
the spread of hazardous chemicals into the air, water, and soil.
52. As a direct and proximate result of Defendants’ negligent conduct, as alleged
herein, Plaintiffs and the Class members have suffered damages in an amount which will be
proven at trial, including, but not limited to, property damage, diminution of value and lost use
of real estate, damage to personal and real property, lost wages, loss of business income, and loss
of business goodwill. Plaintiffs and the Class members are further entitled to appropriate
equitable relief.
COUNT II – NUISANCE
54. Plaintiffs and the Class members have legitimate and exclusive possessory rights
in affected property near and surrounding the area in which Norfolk Southern Freight Train 32N
derailed.
55. Defendants’ unreasonable, intentional, reckless, abnormally dangerous, and/or
negligent conduct resulted in reasonably foreseeable consequences including the physical
discomfort and mental annoyance and distress to Plaintiffs and the Class members and
substantial interference with their ability to enjoy and use their lands, property, and
neighborhoods, their ability to enjoy and use their exclusive possession of their lands, property,
and neighborhoods and, for some, their ability to carry on their businesses.
56. Plaintiffs and the Class members suffered and continue to suffer a harm and
injury to their residential, commercial, and agricultural properties to which they did not consent
and which is different from the type of harm suffered by the general public.
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57. Defendants’ contamination of Plaintiffs’ property with toxic substances has
unreasonably and substantially interfered with Plaintiffs’ rights to use and enjoy their property. It
has caused Plaintiffs to refrain from using or occupying their property.
58. Plaintiffs and the Class members, unlike the public generally, have suffered
specific injuries as a result of Defendants’ tortious conduct including the contamination of their
land and water.
59. Defendants’ improper transportation and handling of toxic chemicals, and the
contamination of Plaintiffs’ property resulting therefrom, constitute a private nuisance.
60. As a result of Defendants’ misconduct, Plaintiffs and the Class members have
suffered and will continue to suffer decreased property values, damage to their real and personal
property, lost wages, loss of business income, and loss of business goodwill.
CLAIM III - PUBLIC NUISANCE
62. Defendants’ release of toxic chemicals has created conditions that are harmful to
health and interfere with the comfortable enjoyment of life and property. As a result of
Defendants’ actions and inactions, Plaintiffs have suffered a permanent loss of use and
enjoyment of their property.
63. Defendants knew or should have known that the toxic chemicals were hazardous
to people and real property and that improper transportation, handling, and disposal of such
materials would injure people in the surrounding communities.
64. Plaintiffs and the Class members have a common right to enjoy their real property
free from dangerous contamination, to breathe clean air, have access to clean running water
without dangerous levels of toxic chemicals, and to live their lives without unreasonable
exposure to toxic chemicals.
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65. Defendants, through the negligent, reckless, or intentional acts and omissions
described above, substantially and unreasonably infringed upon and transgressed these public
rights.
66. As a direct and proximate result of Defendants’ improper transportation and
handling of toxic chemicals, Plaintiffs’ and the general public’s common right to breathe clean
air and have access to clean water without dangerous levels of toxic chemicals was diminished.
67. As a direct and proximate result of Defendants’ release of toxic chemicals,
Defendants invaded and contaminated Plaintiffs’ and the Class members’ residences and
businesses, thus exposing them to toxic chemicals and carcinogens.
68. Defendants’ release of harmful chemicals also affected and continue to affect the
public at large, causing massive environmental damage to the surrounding area.
69. As a result of Defendants’ misconduct, Plaintiffs and the Classes have suffered
and continue to suffer harm, injury, and losses, including physical injury to property, loss of use
and enjoyment of their property, diminution in property values, lost wages, loss of business
income, and loss of business goodwill.
COUNT IV – STAUTUTORY NUISANCE
71. Section 112 of the federal Clean Air Act includes vinyl chloride in the list of
hazardous air pollutants and sets a national emission standard. 41 Fed. Reg. 46560.
72. Under the Pennsylvania Air Pollution Control Act, 35 P.S. § 4006.6, it is
forbidden to emit air pollutants of hazardous materials in amounts greater than those set by the
Clean Air Act. Any violation of the PAPCA constitutes a public nuisance and “[a]ny person who
causes the public nuisance shall be liable for the cost of abatement.” 35 P.S. § 4013.
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73. Under Ohio Rev. Code § 3704.03, “no person shall cause, permit, or allow
emission of an air contaminant in violation of any rule adopted by the director of environmental
protection.”
74. Defendants’ derailment and “controlled release” emitted dangerous amounts of
vinyl chloride and other hazardous chemicals into the air in and surrounding the properties of
Plaintiffs and the Class members.
75. As a direct and proximate result of Defendants’ acts and omissions described
herein, Plaintiffs and the Class members have had their bodies and property exposed to
hazardous air pollutants in violation of Pennsylvania, Ohio, and federal law.
76. Plaintiffs’ and the Class members’ exposure to the toxic chemicals caused
Plaintiffs and the Class members to suffer and continue to suffer harm, injury, and losses,
including physical injury to property, loss of use and enjoyment of their property, diminution in
property values, lost wages, loss of business income, and loss of business goodwill.
COUNT V - TRESPASS
78. Defendants, without authority or privilege, caused harmful quantities of the
hazardous chemicals from Norfolk Southern Freight Train 32N to physically invade and/or
unlawfully enter upon the land, soil, air, and water of Plaintiffs and the Class members.
79. Defendants knew or should have known that the hazardous chemicals they
transported, released, and intentionally ignited were dangerous and harmful to people, animals,
and real and personal property. Defendants were substantially certain that the emission,
discharge, disposal, distribution, spread, or release of these toxic substances would injure
Plaintiffs and their property.
-21-
80. Defendants intentionally, knowingly, negligently, carelessly, and/or recklessly
caused a trespass: i) by releasing into the air, water, and soils pollutants, particulates, and
chemicals including vinyl chloride, butyl acrylate, ethylhexyl acrylate, isobutylene, ethylene
glycol monobutyl ether, diethylene glycol, carbon monoxide, hydrogen sulfide, hydrogen
cyanide, and benzene; and ii) by allowing or causing such chemicals to discharge, seep, or
migrate underground in such a manner that it was reasonably foreseeable that the toxic material
would, in due course, invade Plaintiffs’ and Class members’ real property and cause physical
injury to that property.
81. Harmful quantities of the hazardous chemicals entered Plaintiffs’ land, soil, water,
and breathing air.
82. Defendants’ toxic chemicals invaded the real property of Plaintiffs and the Class
members and interfered with their possessory interests of that property. Defendants caused toxic
chemicals to enter, invade, and intrude on the real properties of Plaintiffs and the Class members
without their privilege, permission, consent, authorization, invitation, or justification This
trespass has resulted in damages to the Plaintiffs and interfered with Plaintiffs’ use and
enjoyment of their property, caused physical damage to their property by casting over their
property a plume of offensive emissions and pollutants, and depositing chemical residue on their
homes, yards, businesses, and farms.
83. As a direct and proximate result of Defendants' trespass, Plaintiffs and Class
members have suffered legal injury and damages, in an amount to be proven at trial, including,
but not limited to, property damage, diminution of value of real estate, the cost to repair the
damage and restore the property to its pre-trespass condition, the costs of recovering possession
of the property, business losses, and the value of their lost use of the property as a result of the
trespass.
-22-
COUNT VI – TRESPASS TO CHATTELS
85. Plaintiffs and the Class members had a possessory interest in their personal
property including, but not limited to, personal vehicles, commercial vehicles, household goods,
professional equipment, recreational equipment, livestock, and pets.
86. Defendants’ release of toxic chemicals impaired the condition, quality, and/or
value of Plaintiffs’ and the Class members’ personal property.
87. Through the acts and omissions described herein, Defendants deprived Plaintiffs
and the Class members of the use of their personal property and caused harm to personal
property in which Plaintiffs and the Class members had a legally protected interest.
88. As a direct and proximate result of Defendants’ misconduct, Plaintiffs and the
Class members suffered and will continue to suffer damage to their personal property, out-of-
pocket expenses, and loss of property value.
COUNT VII - NEGLIGENCE PER SE
89. Plaintiffs allege all of the previous paragraphs as if set forth fully herein.
90. In violation of Ohio Revised Code § 3704 et seq. and § 3734 et seq., Defendants
allowed hazardous chemical fumes and hazardous and ultra-hazardous degradation products to
escape from the Norfolk Southern Freight Train 32N and enter the open air and caused a
hazardous waste to be illegally disposed from the Norfolk Southern Freight Train 32N, where it
endangered the health, safety, and welfare of the public, including Plaintiffs and the Classes.
91. Defendants’ violation of Ohio Revised Code § 3704 et seq. and § 3734 et seq.,
constitutes negligence per se.
92. As a direct and proximate result of Defendants’ negligence per se, Plaintiffs and
the Classes suffered damages in an amount which will be proven at trial and are entitled to
appropriate damages and equitable relief.
-23-
COUNT VIII - STRICT LIABILITY
94. Defendants were engaged in an abnormally and inherently dangerous or ultra
hazardous activity in the distribution, transportation, storage, maintenance, inspection,
monitoring, and use of hazardous chemicals.
95. Defendants are strictly liable for all damages which may occur or arise out of their
distribution, transportation, storage, maintenance, inspection, monitoring, use, and handling of
hazardous chemicals regardless of their standard of care.
96. Plaintiffs and the Class members were in fact injured as a proximate result of their
exposure to harmful quantities of hazardous chemicals distributed, transported, stored,
maintained, inspected, monitored, used, and handled by Defendants and are entitled to
appropriate damages and equitable relief.
97. The harm to Plaintiffs and the Class members was and is the kind of harm that
would be reasonably anticipated based on the normal risks created by transporting hazardous and
toxic chemicals in close proximity to residential, commercial, and agricultural areas.
98. As a direct and proximate result of Defendants’ ultrahazardous activities,
Plaintiffs and the Class members have suffered and will continue to suffer decreased property
values, damage to their real and personal property, lost wages, loss of business income, and loss
of business goodwill.
COUNT IX – OHIO REVISED CODE § 4963.37
100. Defendants operated a railroad, or a part of a railroad, during all relevant times as
alleged in this Complaint.
-24-
101. As a direct and proximate result of Defendants’ operation of a railroad, or a part
of a railroad, a fire originated upon the lands belonging to Defendants and that fire was caused
by the operation of the railroad.
102. This fire caused losses and damages to Plaintiffs and the Classes and constituted a
violation of Ohio Revised Code § 4963.37.
103. Plaintiffs and the Classes are entitled to appropriate damages and equitable relief
as a result of Defendants’ violation of Ohio Revised Code § 4963.37.
COUNT X - INDUCING PANIC THROUGH DISORDERLY CONDUCT
105. Ohio Rev. Code § 2917.31(A)(3) provides that “[n]o person shall cause the
evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by
doing any of the following: . . . [c]ommitting any offense, with reckless disregard of the
likelihood that its commission will cause serious public inconvenience or alarm.”
106. Ohio Rev. Code § 2917.11(A)(4) prohibits “[h]indering or preventing the
movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or
upon public or private property, so as to interfere with the rights of others, and by any act that
serves no lawful and reasonable purpose of the offender.”
107. Ohio Rev. Code § 2917.11(A)(5) prohibits “[c]reating a condition that is
physically offensive to persons or that presents a risk of physical harm to persons or property, by
any act that serves no lawful and reasonable purpose of the offender.”
108. Through the acts and omissions described above, Defendants induced panic
through disorderly conduct.
109. Defendants had no lawful or reasonable purpose in derailing the train.
110. Defendants had no lawful or reasonable purpose in releasing and igniting
thousands of pounds of toxic chemicals into the environment.
-25-
111. Under Ohio Rev. Code § 2307.60(A)(1), “Anyone injured in person or property
by a criminal act has, and may recover full damages in, a civil action unless specifically excepted
by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by
any provision of the Rules of Civil Procedure or another section of the Revised Code or under
the common law of this state, and may recover punitive or exemplary damages if authorized by
section 2315.21 or another section of the Revised Code.”
112. As a direct and proximate result of Defendants’ unlawful actions in derailing the
Norfolk Southern Freight Train 32N and causing the “controlled release,” Plaintiffs and the Class
members suffered and continue to suffer harm, injury, and losses, including physical injury to
property, loss of use and enjoyment of their property, and diminution in property values, lost
wages, loss of business income, and loss of business goodwill.
COUNT XI - PUNITIVE DAMAGES
114. Defendants’ actions constitute heedless disregard and reckless indifference to the
safety of the general public as to constitute willful misconduct, gross negligence, and/or a
conscious disregard for the safety and health of others, for which punitive damages should be
awarded. As such, Plaintiffs and the Classes are entitled to punitive damages.
COUNT XII – DECLARATORY, INJUNCTIVE, AND EQUITABLE RELIEF
116. An actual, justiciable controversy exists between Plaintiffs and the Class members
and Defendants. A judgment from this Court regarding these issues would afford relief from
uncertainty and insecurity with respects to rights, status, and other legal relations of the parties.
-26-
117. Defendants have had and continue to have a duty to use reasonable care not to
enter, invade, or intrude on Plaintiffs’ or Class members’ real property. Defendants also have
owed and continue to owe a duty to Plaintiffs and members of the Class to exercise reasonable
care in transporting hazardous chemicals and toxic pollutants.
118. Defendants breached these duties by negligently, wantonly, carelessly, and/or
recklessly failing to maintain and operate Norfolk Southern Freight Train 32N and failing to
promptly contain and clean up the hazardous spill. These breaches caused physical injuries to
Plaintiffs’ and Class members’ properties.
119. Plaintiffs and Class members have an adverse legal interest to Defendants. This
adverse interest and the controversy that exists between the parties can be resolved through the
specific relief sought.
120. Plaintiffs, on behalf of themselves and the Class members, request that the Court
issue an Order requiring Defendants to establish and implement comprehensive testing and
cleanup protocols for residential, commercial, and agricultural properties within a thirty-mile
radius of the derailment site. Plaintiffs request that testing and cleanup protocols be sufficient to
detect and remediate elevated levels of vinyl chloride, butyl acrylate, ethylhexyl acrylate,
isobutylene, ethylene glycol monobutyl ether, diethylene glycol, carbon monoxide, hydrogen
sulfide, hydrogen cyanide, and benzene on Plaintiffs’ and Class members’ properties, and in the
soils and waters surrounding Plaintiffs’ and Class members’ properties.
121. Plaintiffs, on behalf of themselves and the Class members, also request that the
Court issue an order requiring and appointing a special master to implement and oversee a
corporate monitoring program of Defendants’ operations to insure and protect against future
accidents.
COUNT XIII – MEDICAL MONITORING
-27-
123. As previously described, Plaintiffs and the Class members have been exposed to
substantial quantities of toxic chemicals as a result of the derailment of Norfolk Southern Freight
Train 32N.
124. As a direct and proximate result of this exposure to toxic chemicals, Plaintiffs and
Class members have a significantly increased risk of developing cancer and other latent diseases,
making periodic diagnostic medical testing reasonably necessary.
125. Early diagnosis of cancer and other diseases provide significant value for Class
members because it will help monitor and minimize the harm caused by Defendants’ misconduct
and provide Class members the ability to monitor diseases caused by Defendants’ misconduct.
126. Monitoring procedures exist that make early detection of cancers and other latent
disease possible and beneficial. These monitoring procedures are different from the tests and
procedures that are normally recommended in the absence of toxic exposures and are reasonably
necessary due to the Class members’ exposures to the toxic substances released by the train.
127. Medical monitoring to facilitate early detection of these diseases is necessary to
protect the health and well-being of Plaintiffs and Class members. Periodic physical
examinations and diagnostic testing will reduce the risk of severe illness and allow early medical
intervention to address detected problems early in the disease process, improving the chances for
survival and the long-term well-being of those affected.
128. The exposure to toxic chemicals, in particular vinyl chloride, requires the
establishment of a comprehensive medical-monitoring program to ensure that the harms
occasioned by Defendants’ misconduct are mitigated to the extent possible.
129. Plaintiffs assert no claims for physical manifestation of bodily injury arising from
the derailment and its aftermath and have no adequate remedy at law. Declaratory, injunctive, or
other equitable relief is thus appropriate.
-28-
130. Plaintiffs request injunctive relief in the form of a Court-supervised medical-
monitoring program funded by Defendants. The specifics of the medical-monitoring program is a
subject for the Court to determine, following a hearing.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for the following relief in this action:
1. An order confirming that this action is properly maintainable as a class action as
defined above and appointing Plaintiffs and their undersigned counsel to represent the Classes;
2. Injunctive relief requiring:
(a) Defendants to provide, at their expense, a Court supervised investigation to determine
any potential medical problems to which persons exposed to the hazardous chemicals released
from Norfolk Southern Freight Train 32N may suffer and the proper procedures for diminishing
the potential for any such problems;
(b) Defendants to perform, at their expense, Court supervised studies, analyses, medical
tests, medical monitoring, and remedial measures as are necessary, just and proper under the
circumstances; and
(c) Defendants to perform, at their expense, a Court supervised medical monitoring
program to fund a study of the long term effects of exposure to the hazardous chemicals released
from Norfolk Southern Freight Train 32N, to fund a study of the long term effects of those
hazardous chemicals within the human body, to gather and forward to treating physicians
information relating to the diagnosis and treatment of injuries which may result from exposure to
the hazardous chemicals to aid in the early diagnosis and treatment of resulting injuries, and to
provide funding for diagnosis and preventable medical treatment.
(d) Defendants to pay for and abide by the recommendations of a special master to
implement and oversee a corporate monitoring program of Defendants’ operations to insure and
protect against future accidents.
-29-
3. An award of compensatory damages (including exposure damages) for Plaintiffs
and members of the Classes and all monetary relief authorized by law or referenced in the
complaint;
4. An order that Defendants are jointly and severally liable and that Defendants must
pay all appropriate damages in compensation to Plaintiffs and Class members.
5. An award of prejudgment and post judgment interest;
6. An award of punitive damages;
7. An award of attorneys’ fees and costs; and
8. Such other and further compensatory, equitable or other relief as this Court may
deem just, equitable or proper.
Dated: February 23, 2023 Respectfully submitted,
/s/ Jeffrey S. Goldenberg
JOHNSON & JOHNSON LAW OFFICE

Nils P. Johnson, Jr.(0001404)
Nils Peter Johnson (0091655)
12 West Main Street
Canfield, Ohio 44406
Telephone: (330) 533-1921
NilsPeter@JandJOhio.com
GOLDENBERG SCHNEIDER, LPA

Jeffrey S. Goldenberg (0063771)
Todd Naylor (0068388)
4445 Lake Forest Drive, Suite 490
Cincinnati, Ohio 45242
Telephone: (513) 345-8291
Facsimile: (513) 345-8294
jgoldenberg@gs-legal.com
tnaylor@gs-legal.com
HAGENS BERMAN SOBOL SHAPIRO LLP

Steve W. Berman (to be admitted pro hac vice)
Sean R. Matt (to be admitted pro hac vice)
1301 Second Avenue, Suite 2000
-30-
Seattle, Washington 98101

Telephone: (206) 623-7292
Facsimile: (206) 623-0594
steve@hbsslaw.com
sean@hbsslaw.com
HAGENS BERMAN SOBOL SHAPIRO LLP

Whitney K. Siehl (to be admitted pro hac vice)
455 N. Cityfront Plaza Dr., Suite 2410
Chicago, Illinois 60611
Telephone: (708) 628-4949
whitneys@hbsslaw.com
THE LYON FIRM, LLC

Joseph M. Lyon (0076050)
2754 Erie Avenue
Cincinnati, Ohio 45208
Telephone: (513) 381-2333
Facsimile: (513) 721-1178
jlyon@thelyonfirm.com
Counsel for Plaintiffs and Class
-31-
ENDORSEMENT FOR JURY DEMAND
Plaintiffs demand trial by jury for all issues triable by law.
/s/ Jeffrey S. Goldenberg

Jeffrey S. Goldenberg
-32-

Fisher, Gould & Holzer Suit

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Case: 4:23-cv-00350 Doc #: 1 Filed: 02/23/23 1 of 32.

IN THE UNITED STATES DISTRICT COURT

WILLIAM LEE FISHER, HELEN GOULD, ) Case No.

George A. Psomas, by their undersigned attorneys, allege upon personal knowledge as to

I. NATURE OF THIS ACTION

1. This is a class action brought on behalf of thousands of individuals and businesses

threat of a deadly explosion, residents had to be evacuated from their homes.

4. On February 6, 2023, three days after the derailments, Defendants performed a

many, many miles.

of all industrial emitters in the United States combined.

6. As a direct consequence of Defendants’ reckless and negligent actions and/or

and medical monitoring expenses.

7. Accordingly, Plaintiffs bring this suit on behalf of themselves and similarly

II. JURISDICTION AND VENUE

markets and jurisdiction in this District.

herein occurred in this District.

RESIDENTS AND INDIVIDUALS

representatives for the Resident and Individual Class.

representatives for the Resident and Individual Class.

be contaminated due to the derailment. As a result of Defendants’ conduct and omissions

representative for the Resident and Individual Class.

and Individual Class.

representatives for the Resident and Individual Class.

18. Defendant Norfolk Southern Corporation (“NSC”) is a Virginia corporation with

a principal place of business in Atlanta, Georgia.

19. Defendant Norfolk Southern Railway Company (“NRSC”) is a wholly owned

eastern United States.1

right of control over the facilities.

21. NSC and NRSC (collectively, “Norfolk Southern”) is a major transporter of

believed to be predecessors, successors-in-interest or other separate corporate entities involved

of care in that regard.

cars, at the rear.

federal authorities until approximately two hours after the derailment.

at least as far as Bridgewater, Pennsylvania at that time.

cardiovascular system, lungs, liver, kidneys, and reproductive system.

31. At 4:30 p.m. on Monday, February 6, 2023, Defendants performed a “controlled

33. The “controlled release” of vinyl chloride released hundreds of thousands of

from the derailment site – than detected prior to the derailment.

negligence, carelessness, recklessness, and/or intentional acts of Defendants in the ownership,

well as the design and performance of the “controlled release.”

income, and loss of business goodwill.

explosion resulting from high concentrations of the highly flammable chemicals.

transact business and the loss of good will.

V. CLASS ACTION ALLEGATIONS

42. Plaintiffs seek to certify the following classes:

(a) Business Class – Businesses located within the geographic region

(b) Resident and Individual Class – Residents and other non-resident

Keith Richeal, and George A. Psomas.5

of a right of subrogation, whether equitable, contractual, or otherwise.

thousands of residents and businesses.

least the following:

a. Whether Defendants negligently operated, maintained, controlled,

oversaw, inspected, or monitored Norfolk Southern Freight Train 32N and

b. Whether Defendants’ acts or omissions as set forth above caused the

derailment, fire, subsequent leak of toxic chemicals, resulting explosion,

contamination and evacuation;

health of Plaintiffs and the Class members;

e. Whether Defendants’ actions created a nuisance;