Attorneys suing Amtrak and train engineer Brandon Bostian used this as a backdrop at a press conference following the NTSB's hearing.

Attorneys suing Amtrak and train engineer Brandon Bostian used this as a backdrop at a press conference following the NTSB's hearing.

Anna Orso/Billy Penn

Amtrak 188 case speeds into court after NTSB ruling faults engineer

The engineer of Amtrak’s train 188 was probably distracted by his radio and sped up into the curve at Frankford Junction, causing the train to derail in the worst accident of its kind on the busiest section of rail in the country since 1987, according to the results of a yearlong investigation by the National Transportation Safety Board.

The emphasis should be on the word “probably,” though. Because in issuing its final report on the incident, the NTSB was unable to identify any other causes that would have made sense: No mechanical problems were found with the train, and engineer Brandon Bostian was not using a cell phone, was not sleepy and tested negative for any drugs in toxicology tests.

Bostian — so far uncharged by officials in the wake of the crash, which killed eight and injured 200 — was well-respected by his peers, had never faced discipline for performance issues and considered operating trains a dream job. But the placing of blame on him opens the door for criminal charges and sets in motion timelines for a spate of lawsuits filed against him and Amtrak by attorneys representing dozens of victims and their families.

Amtrak 188, over which Bostian had sole control, sped up to more than 106 mph going into the curve in the Riverwards. The NTSB blamed the speed on “loss of situational awareness” on the part of Bostian. During its meeting today, the NTSB reported an engineer on a SEPTA commuter train took to the radio several minutes before the derailment that something hit his windshield, shattering it and getting glass in his face. For the next six minutes over four miles, the SEPTA engineer and dispatcher had more than two dozen exchanges. Bostian told NTSB investigators he was concerned for the safety of the SEPTA engineer, who had to stop the train after the glass shattered.

“With his attention diverted to the SEPTA train,” NTSB investigator Stephen Jenner said, “the Amtrak engineer may have lost situational awareness.”

The train’s acceleration into the curve could have been corrected by Positive Train Control safety technology, a distinction made often by the NTSB during the meeting. Jenner admitted Bostian’s distraction was “standard human error,” and NTSB board member Robert Sumwalt blamed train companies for failing to install PTC.

But their final ruling attached primary blame on Bostian. His acceleration to 106 mph into the curve because of a lack of situational awareness was listed as the probable cause of the accident. When board member T. Bella Dinh-Zarr proposed adding the lack of PTC as a probable cause, she was shut down.

“Primary to me is the human behavior,” said Christopher Hart, the NTSB board chairman. “Ideally, we don’t need a backup.”

Because the crash occurred in Philadelphia during interstate travel, both District Attorney Seth Williams and U.S. Attorney Zane Memeger have jurisdiction to file criminal charges and said they would wait until the NTSB released its findings before deciding. Cameron Kline, a spokesman for Williams, said the DA doesn’t have an update on the consideration of those charges.

It may have taken the NTSB a year to reach its conclusion, but Kansas attorney and 35-year railroad crash expert Bob Pottroff had an idea of what would happen within days of the accident. He said he figured they would blame Bostian and not bring up an inexpensive automatic braking technology that’s been around far longer than Positive Train Control and was installed on the other side of the tracks.

He said he doesn’t think Bostian should be charged.

If you’re talking about what is required (for charges) in the railroad environment it’s corporate bigwigs and government regulators looking for a scapegoat,” he said. “Legally speaking I go back to my same response. Is not being perfect criminal? And that answer is of course it’s not criminal. It’s human.

“Truth is, there’s a radio on that for a reason. It wasn’t his fault somebody radioed him. They give him a radio.”

The NTSB plotted the possibility of Bostian losing his situational awareness through this graphic.

The NTSB plotted the possibility of Bostian losing his situational awareness through this graphic.

NTSB screenshot

While Bostian originally told NTSB investigators he had little memory of the moments leading up to the crash because of a head injury sustained as a result of it, he’s changed his story on multiple occasions. Dr. Mary Pat McKay, of the NTSB, said it’s not unusual for patients to suffer from retrograde amnesia and then have some of their memory come back later after a head injury occurs.

In a follow-up interview with the NTSB, Bostian said he began to remember steps he took to attempt to slow the train prior to the derailment. He said he remembered going slower than the speed limit heading into Frankford Junction and took four separate steps to attempt to brake.

“I couldn’t say with certainty that my memory is accurate,” he told investigators in November. “There are a couple of prominent scenes in my head that have come back to me since we last spoke.”

Those inconsistencies were highlighted by civil attorneys in Philadelphia representing victims of the crash, who said they don’t believe Bostian was simply distracted by radio calls that had occurred four miles and several minutes prior.

“Mr. Bostian has, to this date, to my knowledge, had no significant discipline for this incident, we don’t even know where he is,” Philadelphia attorney Tom Kline said. “We don’t know if there’s ever going to be a bringing of him to civil and criminal justice. [Our clients] want to see some real answers here. They want to see Mr. Bostian brought to justice.”

Pottroff questioned the process of the NTSB in general. The organization, he said, doesn’t allow for a representative of the victims or engineer to be part of the investigative team. Instead the team relies on experts with backgrounds as railroad personnel and railroad regulators.

Does it surprise you at all,” he said, “if the fox and the guarddog were the investigatory team that both of them would be cleared at the end of the chicken massacre? We’ve got to fix this system.”

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