Class Action Against Class I Rail Operator, Norfolk Southern 


By Joshua G. Ferguson and Nicholas J. Hubner

Arising from a freight train derailment of February 3, 2023, in East Palestine, Ohio, groups from three states including Ohio, Pennsylvania, and West Virginia recently filed a class action lawsuit against the Class I freight operator, Norfolk Southern Railway Company and its parent, Norfolk Southern Corp. (“Norfolk Southern”). The plaintiff groups consist of residents, property owners, employees, and businesses and asserts claims against the rail line related to the derailment. In addition to the derailment, the class action complaint seeks damages for the “controlled release” event in which certain amounts of chemicals, including vinyl chloride, were released following a tanker car explosion.  The complaint seeks damages from Norfolk Southern for negligence, state law violations, crop destruction and medical monitoring. The class action complaint follows a ruling out of the U.S.D.C. for the Northern District of Ohio in which the court ordered that the thirty-one lawsuits against Norfolk Southern must be combined. The case is styled In re: East Palestine Train Derailment, No. 4:23-cv-00242-BYP, and is assigned to Judge Benita Y. Pearson and will be a jury trial. 

The complaint sets out four proposed classes, each with three subclasses, as follows: (1) The Resident Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass; (2) The Property Owners Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass; (3) The Employees Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass; and (4) The Business Class, (a) Ohio Resident Subclass, (b) Pennsylvania Subclass, (c) West Virginia Subclass.  

Plaintiffs seek equitable relief to establish a medical monitoring program/fund to monitor and finance medical injuries as they arise during the administration of the program. Specifically, the complaint brings 18 counts, including: (1) negligence and negligence per se, (2) strict liability, (3) statutory nuisance (Ohio), (4) statutory nuisance (Pennsylvania), (5) private nuisance, (6) public nuisance, (7) trespass, (8) trespass to chattels, (9) destruction of vines, bushes, trees, and crops (Ohio), (10) agricultural crop destruction (Pennsylvania), (11) destruction of timber, trees, logs, posts, fruits, nuts, growing plants or products of said plants (West Virginia), (12) injuring animals (Ohio), (13-15) medical monitoring, (16) spoilation, and (17) gross negligence/willful and wanton conduct. 

The Environmental Protection Agency has already required Norfolk Southern to cover certain remediation, housing and damages/costs, but this class action appears to be covering a broader range of affected individuals, increased damages, and dictate additional safety and compliance for the rail operator moving forward.  

For more information, please contact Joshua G. Ferguson at, Nicholas J. Hubner at, or your local FMG attorney.