Can East Palestine, OH Seek Derailment Relief Through a Medical Monitoring Program?

On February 3rd, 2023, a Norfolk Southern train derailed in East Palestine, Ohio. The village rests on the Ohio-Pennsylvania border. Investigators believe that a broken axle caused approximately fifty of the 100 car train to derail. Five derailed cars carried vinyl chloride. Over the following days, the vinyl chloride was released from the cars in a controlled burn, unleashing hydrogen chloride and phosgene gases into the air. Although residents were originally evacuated, they were soon permitted to return only a few days later.

The Environmental Protection Agency classifies vinyl chloride (VC), a chemical commonly used to manufacture PVC piping, as a Known Human Carcinogen. The chemical’s Category A classification is based on human occupational studies and animal testing. The tests and studies show that VC is hazardous if inhaled or absorbed orally or dermally. Nearly all cases of liver angiosarcomas have been linked to occupational exposure to VC. Furthermore, VC has been linked to liver, brain, lung, and lymphopoietic system cancers. Highly concentrated exposures can also cause headaches, drowsiness, and dizziness.

As of February 15th, the Ohio Environmental Protection Agency was testing the wells that supply drinking water to the area and maintained that they were not contaminated. However, residents of the area have reported headaches, sudden death of domesticated pets, and lifeless fish in nearby streams.

Undoubtedly, this disaster has major health and environmental implications, but developments in American tort law may burden Ohioans who seek relief. As of February 10th, four lawsuits had been filed, three in the United States District Court for the Northern District of Ohio and one in the Court of Common Pleas Columbiana County, Ohio. Two of the federal suits include a count of strict liability, alleging that transporting a known carcinogen is an ultrahazardous activity. The state suit partially relies on res ipsa loquitur. Res ipsa loquitur is a torts doctrine that allows plaintiffs to argue for liability based on the assumption that without the defendant’s negligence the event that occurred would not have ordinarily happened. 

All four suits have two things in common: they are petitioning for class action status and seek for Norfolk Southern to fund a medical monitoring program (MMP) for individuals within a certain radius of the detrainment and controlled burn. MMPs provide ongoing medical screening and care to populations who are not currently injured but will likely develop health issues caused by a negligent act. American tort law’s view of MMPs is being cautiously evaluated. MMPs would provide relief to those exposed to hazards that may take years to medically manifest but would impose liability without presence of a current physical injury, violating a tenant of tort law. The Supreme Court has previously rejected a MMP to relieve railroad workers exposed to asbestos because it was concerned about overextending liability. The American Legal Institute (ALI) is considering the topic while drafting its Restatement (Third) of Torts: Concluding Provisions.

As of October 2020, eleven states legally recognized MMPs. Pennsylvania and West Virginia not only allow MMPs but recognize them as a cause of action. These two states border Ohio and also sit within the Appalachian Mountains. Although MMPs present relatively novel considerations in American tort law, such a program may be the most just course of action when a railroad company experienced in derailments exposes an entire town to a known carcinogen due to a broken train axle.

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