LAC MEGANTIC - THE CHICAGO WRONGFUL DEATH LITIGATION ARISING FROM AN EASILY PREVENTABLE CATASTROPHE

LAC MEGANTIC - THE CHICAGO WRONGFUL DEATH
LITIGATION ARISING FROM AN EASILY PREVENTABLE
                 CATASTROPHE

                          Presented by:
                       Craig D. Brown, Esq.
                    MEYERS & FLOWERS, LLC
                        St. Charles Office
                 3 North Second Street, Suite 300
                    St. Charles, Illinois 60174
                         (630) 232-6333
                       (630) 845-8982 (fax)

                          Chicago Office
                225 West Wacker Drive, Suite 1515
                     Chicago, Illinois 60606
                    cdb@meyers-flowers.com

Joint and Several Liability
1. Defendant does not have to be the “only” cause of the tragedy
2. Any defendant who is found to be “A” cause of the tragedy is legally
   responsible for paying fair compensation to the victims
3. Any defendant whose fault is found to be 25% or more of the total
   fault is Jointly and Severally Liable – they must pay the entire jury
   verdict
4. Any defendant found less than 25% liable pays their pro-rata share
5. Defendants other than MM&A face huge exposure

Defendants Other Than MM&A
• 14 Defendants who were involved with the transportation of the oil
  from North Dakota to Lac Mègantic knew the DOT-111 tankers they
  were using were unsafe

Everybody knew DOT-111 Tankers should never
be used to transport ultrahazardous materials
• On February 12, 1990, the U.S. NTSB urged U.S. DOT to “evaluate
  present safety standards for tanker cars transporting hazardous
  materials by using safety analysis methods to identify the
  unacceptable levels of risk and the degree of risk from the release of
  a hazardous material, and then modify existing regulations to achieve
  an acceptable level of safety for each product / tank car combination”

In July of 1991, the NTSB issued safety
recommendation R–91–20:
  • The inadequacy of the protection provided by DOT – 111 tanker cars for
    certain dangerous products has been evident for many years and have been
    observed in investigations of 45 rail accidents from March 1988 through
    February 1989
  • The NTSB urged the American Association of Railroads (AAR) and the
    American Petroleum Institute (API) to "expeditiously improve the packaging
    of the more dangerous products by developing a list of hazardous materials
    that should be transported only in pressure tanker cars with head shield
    protection and thermal protection and establishing a working agreement to
    ship the listed hazardous materials in such tankers“
  • What did U.S. Rail Industry do with NTSB safety recommendations:
     • Completely ignored

NTSB investigates the Cherry Valley derailment

 • NTSB concludes that DOT – 111 design defects contributed to the massive
   spillage

 • No flammable petroleum products should be transported in the 111 tankers
   unless design improvements were made including construction only with
   normalized steel with increased head and shell thickness, top fitting
   protections, and the bottom outlet valves must be eliminated or located
   above the skid structure.

American Association of Railroads finally
listened to the NTSB
• In October of 2011, AAR proposes that all purchases of new 111
  tankers for transport of petroleum products include safety features
  recommended by the NTSB
• However, AAR refused to retrofit existing 111 tankers with new
  standards recommended by the NTSB and AAR

On March 2, 2012, the NTSB issues safety
recommendation R–12–5
• Asks the Federal Pipeline And Hazardous Materials Safety
  Administration to mandate that all existing 111 tanker cars be
  retrofitted with safety design features
• NTSB warns that public safety is not improved without retrofitting
• Single cargo unit trains associated with transport of petroleum
  product increases the risk of catastrophic damage to persons,
  property and the environment because when a typical unit train
  transporting 75 to 100 tanker cars derails, 2.1 to 2.8 million gallons of
  hazardous materials are at risk of release
• AAR refuses to retrofit 111 tankers citing cost concerns

Foreseeability Equals Legal Duty to Act
• Since 2006, crude oil production from the shale in the Bakken
  formation in North Dakota has increased 150 fold to more than
  660,000 barrels a day
• The transportation of North Dakota crude oil to refineries had largely
  become dependent upon the rail system with a 256% increase in
  barrels transported by train from 2011 to 2012
• In 2012, approximately 80% of the Canadian fleet and 69% of the US
  Fleet of tanker cars were DOT 111's
• Catastrophe waiting to happen

List of Current Defendants
1. Rail World Locomotive Leasing
      • Delaware Company with corporate offices in Rosemont, Illinois
      • They leased the unsafe 111 tankers to MM&A
2. Rail World Inc.
      • Illinois company with offices in Rosemont, Illinois
      • Managed MM&A, allowed MM&A to use only one conductor, improperly trained the
        conductor, and allowed MM&A to use 111 tankers
3. Edward Burkhardt

List of Current Defendants (cont.)
4-10. Dakota Plains Transport Solutions, Dakota Plains Transloading,
      Petroleum Transport Solutions, Western Petroleum Co., World
      Fuel Services Corporation, Dakota Marketing, DPTS Marketing
      • All defendants had a role in transporting the oil from North Dakota to Lac Mègantic in
        one form or another and allowed the DOT 111 tankers to be used

11-14. Union Tank Car, GATX, CIT Group, Trinity Industries
      • Designed, manufactured, and sold the unsafe and defective DOT 111 tankers

Why did we file 19 lawsuits in Chicago,
Illinois
• Many defendants are headquartered in Chicago, including MM&A
  and Rail World
• US companies who cause catastrophic events must be held
  accountable in their own country because that is the best way to
  prevent this horrible tragedy from happening again
• Illinois law, not Canadian law, will apply to this case because Illinois
  citizens have a tremendous interest in this litigation

Status of Litigation

1. MM&A Bankruptcy
2. Other defendants
  • Removal to federal court
  • Remand back to State court
  • Status of discovery

Wrongful Death Damages Recoverable Under
Illinois Law
• Wrongful Death Jury Instructions:

• If you decide for the plaintiff on the question of liability, you must then fix the amount of
  money which will reasonably and fairly compensate the widow/children of the decedent
  for the pecuniary loss proved by the evidence to have resulted in the person's death

• In determining pecuniary loss, you may consider what the evidence shows concerning
  the following:

    • What money, benefits and services the decedent customarily contributed and would have
      contributed in the future
    • What instruction, moral training and superintendence of education the decedent might
      reasonably have been expected to give his child had he lived
    • The grief, sorrow and mental suffering of the surviving family
    • The relationship between the decedent and his surviving family