In the wake of the deadly Amtrak trail derailment Tuesday, December 19th, near Dupont, Washington, a lot of people are pretty ticked off with Amtrak. The accident left 3 people dead. They are Jim Hamre, 61, Zack Wilhoite, 35, and Benjamin Gran, 40. In addition, nearly 100 people suffered injuries, which varied greatly in their severity.
To make matters worse, preliminary reports suggest that at the time it derailed, the train was traveling at anywhere from 30 to 40 miles per hour over the speed limit for that section of track. I work at a personal injury law firm and cannot recall too many accidents, out of the thousands we've handled, where a car was going 40 miles over the speed limit. How was a train speeding that badly?
There is also a controversy concerning whether or not authorities installed the Positive Train Control (PTC) system, but failed to turn it on, or if there was no system in place to proactively slow down the train. Even without such a system, everyone expects an experienced train engineer to not go twice the speed limit on a section of track.
One common reaction found in comments sections, message boards, and social media is that the government likely faces a lawsuit over this debacle. People assume that because Congress regularly covers shortfalls in Amtrak's budget, or even indulges in full-on bailouts of the train operator from time to time, that Amtrak is a government agency. It's not often that a corporation's structure has that big of an impact on potential lawsuits, but in Amtrak's case, there's a world of difference between potential litigation against a government agency and a private entity.
Amtrak's Weird Structure
Most people think of Amtrak as the train equivalent of the Post Office. Unlike the Post Office, a government agency, Amtrak is actually a private firm, which the government implicitly backs. Perhaps some of the confusion rests with the fact that an act of Congress mandated Amtrak's creation. Unlike private corporations set up without a government mandate, when times get hard, people know that the government will step in to bail out Amtrak.
One of the problems with this type of structure is that no matter how badly Amtrak management screws up, at the end of the day, they're not really operating with their own money. For private corporations, as opposed to government-mandated corporations, they must survive or die. If they make poor decisions and lose a lot of money, the management and everyone else who works for the company lose their jobs. For Amtrak, they simply go to Congress and say, "Hey, we lost this much money, so you guys have to give us more, or we'll shut down."
Since Congress already decided that passenger rail transportation is a vital interest, the chances of them saying no to Amtrak are essentially zero. This creates a scenario where Amtrak runs like a business, but one that doesn't suffer the consequences of bad decisions like other companies.
Does Amtrak's Structure Affect Personal Injury Lawsuits Against the Company?
Most people might wonder, "What difference does it make whether or not Amtrak is a government agency?" The distinction is more than academic, because there are a few different ways that Amtrak's strange structure can affect personal injury and wrongful death lawsuits against it. First, the confusion over whether or not Amtrak is or is not a government agency has real-world consequences.
A common strategy for experienced personal injury attorneys is to control the flow of information that a defendant receives. A common tactic that defense lawyers use against victims without representation is to demand lots of personal, extraneous information in an effort to find some grounds to deny an injury claim. For this reason, only showing the bad guy's attorneys what they need to see in order to establish their fault is crucial to making sure that a victim gets full compensation.
The law formalizes the exchange of information in a process known as discovery. Discovery is simply a rule-based system, overseen by the court, to make sure that each party to a lawsuit shares information in a fair manner.
When someone mistakenly believes that Amtrak is a government agency, they run the risk of handing over more information than they have to. To understand why, it's important to know how suing the government is different from suing a private company or individual.
How Mistaking Amtrak for a Government Agency Can Cause Problems for Victims
First, a lawsuit against the government roughly follows these steps. They are:
- File a detailed complaint with the relevant agency, within 6 months of the incident.
- Wait 6 months for the agency to respond or not. The agency can simply sit on the complaint and do nothing.
- File a lawsuit if the agency doesn't offer a satisfactory solution to the dispute
- Make sure the complaint is filed in federal court, because state courts don't have jurisdiction over the federal government.
For accidents involving private companies an individual is free to jump to step 3, but with the caveat that they're free to sue in state courts if they feel that it is a more appropriate venue.
The first two extra steps can create extra problems. The most important for this discussion is that before one can sue the government, one has to file complaint with the government agency that caused your injuries. This complaint has to lay out all of the details of the incident, why the injured person believes that the government or one its employees is responsible, and the amount of compensation sought.
In a lawsuit against a private company, attorneys have some control over the flow of information in the discovery process, whereas in a lawsuit against the government, the law requires an injury victim to essentially show all their cards just to get the process started. The peril for injury victims who think that Amtrak is a government agency is that they may hand needlessly hand over information about their case to Amtrak. This can lead to people unwittingly sabotaging their own cases.
Another problem is that lawsuits against the government can take far longer than a similar suit against a private business. If you notice from the steps above, it can take up to a year between the deadline to file a complaint and the time an agency has to respond. To add to this complication, federal courts typically have heavier case loads than state courts, which means longer waiting times before a matter can be brought to trial. Some people are so discouraged by the prospect of running this gauntlet, they drop their case before things even start.
However, since Amtrak is not a government agency, victims catch a bit of a break, in that they aren't compelled to go through this arudous process. This doesn't mean that a typical lawsuit moves quickly, but it's much faster than taking on a government agency in federal court.
Almost Every Train Accident Case Requires Attorneys to Work with the NTSB
Another issue that is easy to overlook is that the investigation process of train accidents works a little differently than most other kinds of accidents. In typical car or truck accidents, local police investigate. Not to take anything away from local law officials, but accidents are only a small part of their jobs, which means their training and budgets typically don't leave them equipped to properly do the best investigation possible.
On the other hand, the National Transportation Safety Board (NTSB) investigates all commercial train accidents. NTSB investigators are the Green Berets of accident investigation and reconstruction. Most people know them as the ones who reassemble all of the pieces of plane crashes to figure out what caused a particular crash.
The NTSB does such a good job that there are two schools of thought among personal injury attorneys about how to handle cases where the NTSB investigates the initial crash. One school says that these guys are the best, so it's most prudent to just let them do their job and file suit after they've done the heavy lifting. This strategy works in many cases because of how thorough the NTSB is and the fact that they collect fantastic evidence.
Our firm falls into a second camp that believes that concurrent and complimentary investigations have to take place while the NTSB does its thing. This doesn't mean that our investigators redo the work of the NTSB, that would be unnecessary, but the NTSB's charge is to determine what caused the crash, not look at all of the other factors that could have contributed to the crash.
For instance, if an engineer pays someone in Human Resources $100 bucks to look the other way about a failed drug test, it's unlikely that the NTSB will discover that part of the case.
The major drawback to relying solely on NTSB investigations is that victims pay the price for the skillfulness of their investigations in time. Simply put, the NTSB does not work quickly. While their methodical pace leads to a fantastic investigation, for injury victims it takes up a lot of their time. Since every state has a statute of limitations, or deadline to file a case, and the statute of limitations starts to run from the time of the accident, relying solely on the NTSB investigation means that will quite likely be the only evidence that victims will have when it comes time to file suit.
To us, it just makes more sense to use an all-of-the-above approach. Sure, it's fantastic to have the world's best investigators looking into the cause of a client's accident, but it doesn't relieve us of our responsibility to pursue, investigate, and litigate every aspect of any case that we're involved in.
Suing Amtrak Is Still Different than Suing Other Corporations
In 99% of lawsuits, an experienced personal injury attorney leverages the chance that a jury will make a company pay far more than they would have to shell out if they simply made a fair deal with the victim. Most companies have a strong interest in keeping a bad situation from becoming a disaster. They know that too many disasters will put them out of business.
Remember how I mentioned that Amtrak has the United States Treasury as its backstop? That means it doesn't matter how many disasters Amtrak endures, they're still going to be there at the end of the day. Unlike other businesses, Amtrak can play hardball with victims, because it's not their money or company survival on the line.
So while most companies can be brought kicking and screaming to the bargaining table, Amtrak can't. Holding out affords them the chance to say that they're not responsible, while they don't pay the costs when they lose.
If that wasn't enough, Congress saw fit to give Amtrak special protections from lawsuits. They capped the amount of damages that a jury can award in a single incident to $200 million. That may sound like a tremendous amount of money, but severe accidents often leave one person with millions of dollars in lifetime medical expenses. Multiply that times 40 or 50 people and you can see how a single incident can bump up against the cap, and that's without even considering people who lose their lives.
Currently, there is at least one lawsuit that seeks to have the cap overturned as unconstitutional. While there are strong arguments that Congress can't set Amtrak up as a private company and then give it protections as if it were a government agency, for accident victims, those matters are probably academic at the present time.
Amtrak's unique structure, its lack of accountability to anyone but Congress, and working with the NTSB present many challenges for victims who were injured by the company. Now I certainly don't want to give the impression that Amtrak is unbeatable and can't be held accountable when they screw up, they can, but holding Amtrak accountable for their reckless behavior only happens if the public, particularly Amtrak's victims, know who they're up against.