Dozens of investigators remain near the disrupted land of Philadelphia near the Frankford Junction, moving large pieces of steel to elsewhere for testing so they can attempt to discern what went wrong and how a routine train ride turned into a crash that killed eight people and sent hundreds to hospitals.
The investigation pushes on, but the legal circus is only beginning. What’s believed to be notice of the first lawsuit in the case was filed yesterday by an Amtrak employee still being treated in the hospital. It’s expected many more will be filed against the railroad company, asking for hundreds of millions in damages.
On top of that, a criminal investigation into the conduct of engineer Brandon Bostian continues by federal officials and the Philadelphia District Attorney’s office. At stake are potential charges of manslaughter that could result in time behind bars.
Bob Pottroff, a Kansas-based attorney and 35-year railroad crash expert, tells Billy Penn he’s already received calls from victims, families and other attorneys working cases with regard to the Amtrak 188 crash here in Philly. He says the more than 200 injured victims of the crash and the families of those who died have an easy case against the railroad giant, saying it clearly erred in more ways than one.
Experts and media have sounded off about the lack of Positive Train Control on the tracks in the area where the crash occurred — that type of technology would have almost certainly prevented the crash from happening because it would have automatically slowed the train down as it barreled toward the curve.
But in the days since the crash, it’s come out that in addition to that technology, Amtrak also admits that it failed to install required automatic braking technology heading northbound on the Frankford Junction curve of the Northeast Corridor, even though that system is installed on the southbound lanes. Pottroff says that simple transponder would have only cost a few hundred dollars.
“There’s a couple options, and I’m not sure which one is more egregious,” Pottroff said. “Curves go two ways. You can’t install one in one direction and not the other, and if you really did that, you’re an idiot. In all probability, they did have that transponder there and they’re lying about it. You’d have to be born yesterday to buy all their bullshit.”
Pottroff explained that this technology — less high-tech than the Positive Train Control — has been around for decades and was instituted in the early 1980s as a way to have a check on the train engineer, rather than having the equivalent of a “co-pilot.” (Amtrak’s CEO has vowed to install Positive Train Control throughout the Northeast Corridor by the end of the calendar year.)
But the technology, called cab signals, can be manually overridden by train engineers, unlike the Positive Train Control. So even if those signals weren’t installed on the curve where the train crashed, Pottroff said the engineer may have overridden or ignored other cab signals that would have alerted him he was operating the train at too high of a speed.
Those speeds, according to the National Transportation Security Board that’s investigating, were somewhere around 106 m.p.h. when the train flew off the tracks at the Frankford Junction. NTSB spokesman Robert Sumwalt told members of the press Thursday that the train accelerated in the final moment before the derailment.
Whether it’s human error or a lack of safe infrastructure from Amtrak, experts roundly agree that Amtrak will likely be held liable for damages. Diana Brocco, a civil litigation attorney for Kent/McBride law firm based here in Philly, said to expect wrongful death and negligence lawsuits in federal court in the coming weeks.
“I’m sure Amtrak is insured to the nines and there’s some sort of limit on the dollar amount they can pay out,” she said. “But it’s a slam-dunk case against Amtrak.”
There is a limit, and it’s $200 million for all claims. The cap was placed on all rail accidents in 1997 by Congress in order to limit damages for all claims related to crashes. Joanne Doroshow, executive director of New York Law School’s Center for Justice and Democracy, told Bloomberg that the cap is arbitrary and, “in a mass casualty situation like this, clearly it is way too low.”
“They call them damage caps,” Pottroff said. “I call them price tags.”
In the first lawsuit already filed, Amtrak employee Bruce Phillips is seeking in excess of $150,000 in damages, according to NBC 10. The suit notice posted on the TV station’s website claims Phillips suffered a brain injury, a concussion and multiple lacerations. Amtrak won’t comment on pending litigation.
And when it comes to Brandon Bostian, the engineer who was in charge of safely navigating the train from Philadelphia to New York, both attorneys agreed he could likely see criminal charges, even if the entire situation was accidental.
Brocco said Bostian could be charged with manslaughter, and depending on what a jury decides, the punishment could be anywhere from severe fines to time behind bars. She also said there’s always the possibility that, in the event of criminal charges, Bostian could strike a plea deal with federal prosecutors. Pottroff said he thinks “this is probably prison.”
District Attorney Seth Williams has said his office is engaged in a full criminal investigation in conjunction with federal and state officials.