Trial News

Earlier this month, legislation was introduced in both houses of Congress to prohibit Amtrak from including forced arbitration clauses and class action waivers in passenger tickets, a policy that the railway secretly implemented in January 2019 following two fatal Amtrak crashes in 2015 and 2017 that resulted in settlements. The “Ending Passenger Rail Forced Arbitration Act” (S. 3400/H.R. 6101) seeks to restore the Seventh Amendment rights of Amtrak passengers who are killed, injured, or discriminated against.

On May 12, 2015, an Amtrak train bound for New York City derailed on a sharp curve just north of Philadelphia. Eight people were killed and more than 200 were injured. The speed limit on the curve was 50 mph, but black box data showed that the train was traveling at 106 mph. The derailment occurred on the country’s busiest train route—the Northeast Corridor—which runs from Washington., D.C., to Boston. More than 700,000 people use it daily.

Passengers and crew members allege that Amtrak was grossly negligent because it failed to install automatic train control (ATC), which can slow or stop a speeding train. Although the technology was in place on the southbound side of the tracks, Amtrak installed ATC on the northbound side only after the derailment. At the time, Amtrak also hadn’t installed positive train control (PTC), a more advanced system than ATC that allows the trains’ speed and location to be continuously monitored and can automatically slow or stop trains at any point.

Dozens of lawsuits were filed and consolidated as federal multidistrict litigation, and Amtrak conceded liability. In October 2016, Amtrak agreed to pay $265 million to approximately 125 people, including survivors and family members of those killed and injured, as Trial News previously reported.

On Dec. 18, 2017, an Amtrak train on its inaugural route derailed off an overpass near DuPont, Wash., forcing several passenger cars onto the interstate and striking multiple cars on the highway. Three train passengers were killed, and 65 people were injured. More than 35 people sued Amtrak in connection with the derailment. Amtrak again conceded liability. In the first three cases to go to trial on damages only, the juries awarded a total of more than $31.5 million. More cases are pending.

As the trials over the 2017 derailment proceeded, Amtrak quietly amended the terms and conditions of its tickets to include a forced arbitration provision and a class action waiver. It states that it is “intended to be as broad as legally possible” and applies to anyone who buys tickets and also family members, minors, coworkers, and companies for whom tickets are bought. The provision even specifies a long list of claims that cannot be adjudicated in court, including negligence, gross negligence, wrongful death, discrimination, and failure to accommodate a disability.

In November 2019, a dozen senators sent a letter to Amtrak asking the company to reverse the policy. In January, Public Citizen sued Amtrak in the District Court for the District of Columbia, seeking declaratory and injunctive relief, alleging the forced arbitration provision is unconstitutional. (Weissman v. Nat’l R.R. Passenger Corp., No. 1:20-cv-00028 (D.D.C. filed Jan. 7, 2020).

On March 5, Sen. Richard Blumenthal (D-Conn.) introduced the Ending Passenger Rail Forced Arbitration Act in the Senate along with 12 Democratic cosponsors. Reps. Conor Lamb (D-Pa.) and Denny Heck (D-Wash.) introduced the bill in the House.

“Tens of millions of Americans rely on Amtrak to get them safely from point A to point B each year, but Amtrak still chose to take a consumer confidence-destroying action like this to evade public accountability when it harms its passengers,” said AAJ CEO Linda Lipsen. “Thanks to Senator Blumenthal and Representatives Lamb and Heck, the U.S. Congress now has the opportunity to right the wrong caused by Amtrak and end forced arbitration for all rail customers.”

Charles Gildersleeve’s brother Bob was one of the passengers killed in the 2015 derailment. “My brother would not have died had Amtrak cared about the safety of its passengers instead of its bottom line,” he said. Charles was one of the plaintiffs who sued Amtrak, which would not have been possible under the new policy. “Amtrak should not be able to use forced arbitration to escape public responsibility for any and all wrongdoing. I implore members of Congress to support this bill and preserve the rights of Americans to seek justice.”

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