$200 Million Damages Not Sufficient in Amtrak’s Derailment

Neither the numerous lawsuits nor the liability is a concern for the deadly Amtrak 188 derailment that took place last month. The issue here is of the damages. Under the Amtrak Reform and Accountability Act, 1997 damages paid by the government to people injured in Amtrak derailments and families of those passengers killed is limited to $200 million per crash[1]. But with eight killed and about 200 of the 238 passengers injured, some very seriously, the law does not adequately cover damages and shall exceed that amount.

The law also exempts claims by Amtrak employees who are separately covered by the 1908 Federal Employers’ Liability Act. Moreover, Amtrak being federally funded, its losses are borne by the government.

The cap was originally designed to save taxpayers from excessive damages. Although there have been several attempts made in Congress to raise the cap to $500 million, but all in vain.

While $200 million sounds a lot of money, the same when divided amongst the 200+ injured or dead passengers, is very little. Plaintiff railroad attorney James McEldrew III of McEldrew Young said:

“You could have one lawyer trying to minimize one person’s suffering and comparative worth compared to someone else. It’s going to be terrible. “

McEldrew is also of the view that the $200 million cap is outdated, considering inflation and higher health care costs since the law had been passed.

Another problem would be the capacity to hire an attorney besides bearing the medical costs, which would further affect attorneys’ choices in taking on clients. Attorneys take up cases, considering how large any potential settlement fund might be. As per Kenneth R. Feinberg of Feinberg Rozen, it is a “big if” the full $200 million would be tendered.

Settlement funds like those in the 9/11 terrorist attacks, the BP oil spill and the GM ignition switch cases are voluntary and in case of disagreement can be appealed to the courts. However, in a case with a $200 million cap, there may be no money left by the time the court proceedings are done with. Feinberg indicated that there are a bulk of people that go through the funds once created, citing a 97 percent participant rate in the 9/11 fund and a 92 percent rate in the BP cases. These funds could be set up before any litigation is filed.

A federal suit under Federal Employers Liability Act (FELA) has already been filed against Amtrak by employee Bruce Phillips, who was not part of the when the mishap occurred, but was being transported back to New York. Phillips alleges to have suffered traumatic brain injury, contusions and lacerations, orthopedic and neurological injuries, and emotional trauma.

[1] See Amtrak Reform and Accountability Act, 1997, Section 28103 (a)(2)

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