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Residents want CSX lawsuit certified

Attorney cites recent state Supreme Court decision in petition

Hyndman residents evacuated from their homes 29 months ago due to a derailment of a CSX Transportation Inc. freight train are asking a federal judge to reconsider his December opinion dismissing their class action lawsuit against the Florida-based railroad.

Four residents of Hyndman filed the lawsuit in 2018 seeking monetary damages against CSX, contending the railroad was negligent in its operation of a 2-mile-long freight train that derailed during the early morning of Aug. 2, 2017.

The train was transporting chemicals such as molten sulfur, propane and phosphoric acid residue, as well as asphalt.

More than 1,000 residents of the Hyndman area were evacuated from their homes when fire erupted from the damaged cars causing fumes to permeate the air.

It took several days to remove the debris, according to the lawsuit.

While several lawsuits were filed in the Bedford County Court of Common Pleas, the one filed by residents Denora Diehl, Robert Cook, Jennifer Queen and Lorelei Gordon was moved from Bedford County to the U.S. District Court in Johnstown.

The railroad filed a motion to dismiss the lawsuit late last year because, it claimed, the residents “failed to show physical harm to either their persons or their property,” according to an opinion issued in December by U.S. District Judge Kim R. Gibson.

Gibson stated monetary damages were barred by Pennsylvania’s economic loss doctrine.

The doctrine states “no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damages.”

The judge concluded, “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 Hyndman residents) or anyone else.”

The claims by the residents that they suffer from “fear and anxiety” as a result of the accident that kept them out of their homes for several days — “Those symptoms have not physically manifested,” the judge stated in his Dec. 9, 2019, opinion.

“Fear and anxiety without physical manifestation are economic losses that are not recoverable under Pennsylvania Law,” he ruled.

Gibson granted Summary Judgment — dismissal — in favor of the railroad, and found a request to certify the case as a class action lawsuit to be moot.

Now attorney Bryan S. Neiderhiser of Indiana, on behalf of the residents, has asked the judge to set aside his December ruling based on a recent decision by the Pennsylvania Supreme Court that stated monetary damages can be awarded if a plaintiff can establish a “breach of legal duty” by a defendant.

Many cases since the 2018 Supreme Court decision have been allowed to move forward after this clarification of the economic loss doctrine, Neiderhiser pointed out in the petition.

The brief filed by Neiderhiser outlined the reason for the clarification by the state Supreme Court:

“If businesses are allowed to continue to hide behind the economic loss doctrine, their negligent conduct will likely continue until someone is physically injured or worse. The court should not allow such negligence to continue.”

It asks Judge Gibson to set aside his December ruling and to certify the Hyndman residents’ lawsuit as a class action.

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