Distracted Driving and the Philadelphia Amtrak Train Derailment
In what might be described as the ultimate distracted driving case, eight people lost their lives and nearly 200 more were injured as a result of the worst American rail disaster in decades. The Amtrak train that derailed in Philadelphia on May 12, 2015 carried 258 people, including eight Amtrak employees. The train, including a 98-ton locomotive and seven 50-ton cars, derailed when it entered a sharp curve approaching Frankford Junction (a few miles northeast of 30th Street Station) at 102 mph. This was more than twice the 50 mph limit. The operator of Train 188, Brandon Bostian, applied the emergency brake three seconds before the derailment, slowing the train from its top speed of 106 mph. One car flipped upside down and several others were thrown onto their sides.
The National Transportation Safety Board (“NTSB”) concluded that Bostian was distracted by radio transmissions from a SEPTA train operator who said rocks had shattered his windshield. An Acela train also reported getting hit by rocks along the route. The NTSB found that these reports caused Bostian to lose “situational awareness” and mistakenly believe he had reached a long straightaway when he was actually accelerating into a very sharp curve. The board also found that a lack of Positive Train Control, a safety system that has since been activated at the site, contributed to the tragedy. PTC is a GPS communication and processor-based train control technology designed to prevent train-to-train collisions as well as over-speed train derailments
In a shockingly similar tragedy, a 14 car Amtrak passenger train derailed on December 18, 2017 after speeding around a curve while traveling 80 mph in a 30-mph zone. PTC was not activated. The train careened off a bridge outside Tacoma, Washington, killing three people and injuring many more. NTSB has recommended PTC for more than 45 years. Railroad companies have until the end of 2018 to implement the system. However, given the history of waivers, this deadline may be extended to 2020.
Brandon Bostian told investigators he was very concerned about the SEPTA train. The SEPTA engineer “dumped” the train (performed an emergency stop) and put out a “hot track” warning, indicating dangerous activity in the area. Bostian was concerned that SEPTA passengers may have de-boarded. He told investigators that he repeatedly blew his train’s horn while passing. Distracted by these radio reports, Bostian simply miscounted the turns, going full throttle prior to the straightaway leading toward Trenton.
Bostian sustained a concussion and required 14 staples in his head. He said he could not clearly remember the moments before the derailment. He recalled braking, but knew it was already too late. “I remember holding onto the controls tightly and feeling like, OK well this is it. I’m going over,” he told NTSB investigators. He also recalled ringing the in-cab bell as he headed toward the Frankford Junction.
Bostian provided NTSB investigators with his phone’s passcode. This allowed them to access phone data without having to go through the phone manufacturer. Its data usage confirmed that the phone was on “airplane” mode at the time. Bostian claimed that his phone was stowed away in a bag during the trip. His attorney, Robert Goggin said that Bostian found his bag after regaining consciousness and called 911.
Investigators examined the phone’s operating system containing more than 400,000 files of metadata. They ran additional tests on an identical phone to validate the data. The NTSB could find no evidence that Bostian accessed the train’s Wi-Fi system, was texting or making a call during the time he was operating the train. They did not rule out other possible uses, such as use of an app. Engineers distracted by mobile games or texts have been blamed for other derailments.
Having concluded that Bostian had no drugs or alcohol in his system and was apparently well rested, the NTSB had little choice but to conclude that distracted driving caused the derailment. Investigators analogized Bostian’s situation to a car driver on a long and darkened freeway. The driver, hypnotized by the unending ribbon of asphalt, swerves off the road at a high speed.
One factor that contributed to the uncertainty over the cause of the derailment was the lack of inward facing cameras. On May 27, 2015 Amtrak announced that it would install video cameras to monitor the actions of engineers in locomotive cabs. Outward facing cameras were already in place.
The case had an interesting procedural history. On October 12, 2015, the U.S. Judicial Panel on Multidistrict Litigation (“MDL”) ordered U.S. Eastern District Judge Legrome D. Davis to handle the lawsuits brought by victims of the crash, centralizing all claims in Philadelphia-based federal court.
On February 2, 2016, under Federal Rule of Civil Procedure 23(b)(1)(B), two plaintiffs moved to certify a mandatory, non-opt out settlement class. On March 14, 2016, they re-filed the motion on the MDL docket. The motion alleged that a class action would prevent some plaintiffs from reducing the limited funds before other plaintiffs could recover anything, provide adequate notice to all potential class members, and dramatically reduce overall attorney fees. On April 6, 2016, the Court denied the motion to certify.
On October 27, 2016, the Court approved a global resolution establishing a Settlement Program, negotiated by Amtrak and a Plaintiffs’ Management Committee. On December 20, 2016, the Court selected the Honorable Diane M. Welsh (Ret.) and the Honorable William J. Manfredi (Ret.) to serve as settlement masters and charged them with reviewing the voluminous proofs of damages and assessing value. Judge Davis retained the right to modify the masters’ awards.
On July 31, 2017, Judge Davis dismissed all 90 active cases in the multidistrict litigation, months after granting approval to a $265 million settlement for all pending claims. Amtrak agreed to pay $265 million, the present value of the statutory limit of $295 million, paid out in two and a half years, the likely period it would take to resolve the cases via litigation. Congress raised the cap from $200 million during the pendency of the litigation.
Of 299 claimants, 159 elected to participate in the settlement program, negotiated by a seven-attorney plaintiffs’ management committee and Amtrak. The remaining claimants had either acknowledged they were not injured, settled separately with Amtrak, or withdrawn their claims.