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Judge dismisses lawsuit against CSX

A federal judge has put a halt to a lawsuit filed by several residents of Hyndman Borough who were evacuated from their homes 28 months ago following a derailment of a CSX Transportation freight train, resulting in an explosion and a fire that took two days to extinguish.

U.S. District Judge Kim R. Gibson Monday issued an opinion that stated the residents, who are represented by Indiana attorney Bryan S. Neiderhiser, did not experience personal injury, property damage, loss of property value or severe mental harm due to the derailment and therefore are barred under Pennsylvania law from suing for damages.

“Although (the residents) assert they suffer from fear and anxiety as a result of the derailment, those symptoms have not physically manifested. There has been no allegation, nor support in the record, that the fumes from the derailment were toxic or that they caused any injuries to (the residents) or anyone else,” the opinion stated.

“Fear and anxiety without physical manifestation are economic losses that are not recoverable under Pennsylvania law,” Gibson stated.

The residents named in the lawsuit, Denora Diehl, Robert Cook, Jennifer Queen and Lorelei Gordon, also sought certification of their lawsuit as a class action, allowing them to seek damages on behalf of the nearly 1,000 evacuees who had to leave their homes during the early morning of Aug. 2, 2017, due to the fire and smoke that permeated the Borough.

Gibson found the question of certification as a class action was moot, or without standing, due to his dismissal of the lawsuit and he therefore denied certification.

The ruling by the federal judge in Johnstown stunned Gordon, one of the plaintiffs in the lawsuit, who lives at 119 Market St., Hyndman.

“I think it is awful. I think it is awful we can be treated like that. … You can’t put a price tag what I went through,” Gordon stated.

She vividly remembers the situation that occurred at about 5 a.m. that summer morning.

Her property is about four blocks from the railroad tracks running through Hyndman, and Gordon said after the derailment she saw fire and left her house to determine what was happening.

When she returned, she said she was told by a police officer that she and her four grandchildren had to evacuate or be arrested. She was allowed to take noting with her and she didn’t know where to go. She just followed others.

She described it as “all hell broke loose.”

The lawsuit stated that she was not permitted to return to her home until Aug. 5.

It stated she kept rabbits outside her house, and when she returned, she found three of them dead.

Her dog remained in the house during the evacuation, which meant she had to clean and sanitize her home upon return.

Her food had to be thrown out, and clothes she was washing upon evacuation were covered in mold.

The lawsuit stated that while not physically injured by the derailment Gordon suffers from anxiety as a result of her experience.

The evacuation stories of the other three plaintiffs were much the same.

Diehl however, according to the lawsuit, remained out of her home for 18 days.

According to Gibson’s opinion, CSX set up community outreach centers to “assist and compensate” those who were evacuated or needed medical care.

The opinion noted the railroad reimbursed residents for food costs, hotel accommodations, lost wages and medical expenses.

It also provided food, bottled water, transportation and cleaning services to the evacuees, the opinion stated.

The initial lawsuit was filed in the Bedford County Court of Common Pleas, but CSX, headquartered in Jacksonville, Fla., moved the lawsuit to the federal court in Johnstown.

According to Gibson, CSX maintained that Pennsylvania’s “economic loss doctrine” barred money damages to those who experience only “transitory fear and anxiety and loss of use and enjoyment of property during the evacuation period.”

“The mere loss of use of one’s property as a result of an evacuation is not physical property damage,” CSX argued.

The plaintiffs countered that argument by stating the derailment caused an “invasion” of their properties by “poison gas,” which they inhaled.

They experienced real physical effects caused by the psychiatric stress of the cleanup stage, the plaintiffs contended.

The lawsuit charged that the derailment was the result of negligence by CSX.

The train was 2 miles long and included cars transporting propane, molten sulfur, asphalt and phosphoric acid residue.

The explosion and fire that led to the evacuation occurred as freight cars piled up in a yard at at 306 Schellsburg St.

Neiderhiser could not be reached for comment on Tuesday.

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