Our heart goes out to these families and first responders. The horror depicted in the picture above pales in comparison to the inside of those trains, and the path forward after an event like today’s Amtrak 501 disaster involving multiple fatalities and dozens of injuries.
News is starting to break about potential causes. Amtrak President and Co-CEO Richard Anderson said Positive Train Control (“PTC”) was not activated on the tracks at the time of the derailment. PTC automatically slows the train if it senses the train is going too fast or may crash. Railroad investigator John Hiatt told CNN, “If there was no Positive Train Control in effect there, then shame on them.”
Responsibility for this tragedy is likely to be complicated. The train that derailed this morning was owned by both Washington State and Oregon Departments of Transportation. Amtrak is responsible for service and daily operations. The tracks are owned by Sound Transit. Because this was the “inaugural” trip, independent engineering and transit firms are also in the mix.
Our firm represents 39 victims–a substantial majority–of the Ride the Ducks crash, believed to be the worst mass transit disaster in Seattle history. It involves many of the same issues likely to be investigated in the Amtrak 501 disaster: product design and failure, maintenance or operator failure, and fatal public transportation flaws. With numerous parties and distinct legal theories, this is as complex as litigation gets. These cases require dozens of depositions, ten or more forensic experts, lab and engineering testing on an enormous scale, and hundreds of thousands of pages in documentary evidence.
In the Amtrak 501 disaster, the NTSB will most likely release a preliminary statement concerning potential causes in the coming days or weeks. The full NTSB investigation can take months or years. The NTSB will ultimately hold a hearing regarding the information gathered and its conclusions as to the causes and responsibility for the disaster. NTSB conclusions are not directly admissible in court, however, so the victims of a mass transit disaster still must investigate on their own.
A lot can be learned through comprehensive public disclosure requests and extensive fact-finding investigations in litigation. First responders will likely conduct a review of the crash and their response to a mass casualty incident (“MCI”). Although there are several definitions of MCI, it typically refers to an incident where the scope of the injuries and circumstances on scene force first responders to abandon the ordinary standard of care that would apply to one-to-one (or similar ratio) medical response. An incident will often be declared an MCI during the initial response on scene, which signals to medics and other authorities that they need to triage patients and coordinate the scene. From that point forward, first responders employ a chain of command with assigned groups such as Rescue Group and Operations.
In an MCI, documentation and immediate identification of victims can be impossible. We took 19 depositions of first responders in the Ride the Ducks disaster to piece together the carnage of the scene and swift MCI response by the Seattle Fire Department. After 30 more depositions, the truth reveals itself.
That is, after all, the main goal victims have–what happened to me and my family, and why? I hope the victims of the Amtrak 501 disaster get the answers they deserve.
NOTE: This blog post is excerpted from AndrewAckley.com
Dear Equifax – Your actions and conduct tell us that that the only thing you really care about is making more money. You would love for us to forget your negligent handling and safeguarding of consumer and business customer data. Over the weekend, one of the main topics of conversation that I kept hearing was about the Equifax data breach and Equifax’s absurd response to the breach. People were infuriated because–not only did Equifax screw them for failing to protect their sensitive data– but Equifax is now screwing them again for its abysmal response to one of the country’s most horrendous data breaches of its kind. Post breach, Equifax rubbed salt into the wounds of the many millions whose Personally Identifiable Information (PII) was compromised by promoting its own identity theft services. Yes – you got that right: Equifax has the nerve to profit from its own negligence.
Many of the folks who complained to me about Equifax didn’t realize that I was about to file a class action lawsuit. What they couldn’t understand was how this this multi billion dollar company could be so negligent and reckless with their valuable Personally Identifiable Information. After all, shouldn’t this company have done more given that it has over a $12 billion market cap and that it is specifically in the business with its use, collection, and brokering of “trusted unique data, innovative analytics, technology and industry expertise to power organizations and individuals around the world by transforming knowledge into insights that help make more informed business and personal decisions.” (Equifax’s own description of itself). They just knew that I had already sued Anthem for their massive healthcare data breach, and they were dying to know what I might do about Equifax’s data breach
My short reply to all of these incredibly frustrated consumers and business owners: Equifax’s actions seem to tell us that they care more about making more money and not much else. Why else would they send millions of panic stricken people to their breach incident site, which didn’t even have the proper security in place. If any diligent and skeptical visitor researched the site, one would have found that it wasn’t even registered to Equifax until some time late yesterday.
Of all companies, Equifax should have made the security of its database its top priority. But rather, it seems more interested in giving a free 12-month trial of their credit monitoring service. BTW: If you agree to this service, know that you’ll waive your right to sue them. Read more about it in the attached Class Action complaint, which I filed earlier this a.m..
Do you think that a “free” 12 month trial offer for credit monitoring and “identity theft insurance” is enough, after all that Equifax has done to allow bad actors to access your detailed PII? I hope not. If you are interested in joining other consumers and business owners to hold one of the country’s largest credit reporting bureaus accountable for its negligence and deceptive business practices, please contact my firm, Stritmatter Kessler.
Today, the parents of Charleena Lyles got a chance to tell their story following the fatal shooting of their daughter at the feet of Seattle Police. Read more about the case here. This is the first step on their long path to find justice. Although, nothing can bring their daughter back.
Karen Koehler, aka “The Velvet Hammer,” travels the country year round to give presentations to trial lawyers. For lawyers in the Pacific Northwest, mark your calendars for the upcoming Oregon Trial Lawyers Association (OTLA) Convention at Sunriver Resort (Aug. 4 – Aug.6 ). For those of you who haven’t met her in person yet, please understand why she is one of the most sought after trial attorneys in the country: She is a powerhouse in a petite package.
Here’s an excerpt from OTLA’s convention newsletter:
Corporations love to demonize class action lawyers. Guess why? You can likely figure this out on your own, but I’ll spell it out here: Because a class action lawsuit is one of the most powerful tools that consumers have to make corporations accountable for their negligence. But the media doesn’t like to focus on the topic of class actions much because it’s not easy to digest via 10-second sound bites. Thus, witness another week of breathtaking, frenzied stories about the Trump administration. Reporters and talking heads gravitated to discussions about the abrupt departure of Flynn and Trump’s 77 minute presser. Meanwhile, a majority in the House worked in concert to destroy consumers’ most powerful tool to hold corporations accountable. That’s right, this past Wednesday the House Judiciary Committee voted on party lines to gut consumer protection class actions.
Interestingly, the corporate lobbyists’ anti-class-action talking points are eerily similar to the proposed “Fairness in Class Action Litigation Act of 2017,” introduced last week in the House of Representatives. Coincidence? Of course, not.
Most of the proposed procedural rule changes in Representative Bob Goodlatte’s are directly traceable to the business lobby’s anti-class-action talking points. Goodlatte – a Virginia Republican and chair of the House Judiciary Committee is seizing on the corporate-friendly climate. He’s expanded last year’s proposed changes in a similarly named bill that was approved in the House but died in the Senate. If Congress adopts Goodlatte’s bill in anything like its current form, class actions will lose much of its potency.
The bill will make class actions much more difficult to survive the most critical milestone–certification. And, for those class actions that would survive, the bill would make those automatically appealable. Moreover, the bill seeks to strip away attorneys’ fees so that fewer plaintiffs attorneys will pursue these.
Most consumers think that class actions are big, nebulous things that have little to do with their lives. But if you talk to regular people such like my class action clients, you’ll realize that the Congress needs to stop trying to striking fatal blows to this important vehicle for justice. Like my clients, consumers throughout this country need class action attorneys to fight for them because they can’t or don’t want to spend thousands of dollars and countless hours to fight a giant corporation. My class action clients are like your neighbors, your relatives, your colleagues, and your friends. They are Republicans, Democrats, and Independents. But, for them and for me, these lawsuits are not about politics. It’s about trying to hold a massive company accountable, when an individual consumer is wronged.
We all know that corporations are focused on maximizing profits. To maximize profits, these companies will cut corners, which often result in a harm to the consumers. When a consumer finds that they have a defective product or that their most private information has caused significant harm to them and their bank accounts, they are not sure who will go to bat for them. This is why class action attorneys play a critical role in leveling the field for the citizen who’s suffered injury because a manufacturer used shoddy material, security or processes.
Please, email/call/write your representatives and let them know that they represent your interests–not the corporations who’ve donated tens of thousands of dollars to their campaign.
For consumer class action attorneys like myself, we can continue to count our blessings for the moment. Indeed, a number of courts across the country continue to make commonsense and carefully crafted opinions that confer Art III standing for statutory damages claims.
I have much faith in the Ninth Circuit Court of Appeals. The panel just heard oral arguments, as the U.S. Supreme Court had remanded Spokeo (back on Dec. 13th). The 9th Cir.’s new challenge is to tackle the concreteness requirement with newfound gusto. Judge O’Scannlain found it difficult to move past her view that Mr. Robin’s allegations (the resulting inability to find work because of a grossly incorrect report about him) were ostensibly sufficiently concrete, tangible harm. However, Counsel for Plaintiff, William Consovoy kept focus on the issue that the Spokeo court harped on: Defendant was making this about an apparently intangible harm that has yet to run through the rigors of a concreteness test as the one that Alito pieced apart in his majority opinion…
Well, hang tight, as the panel will render its decision in the early portion of next year. From that, we’ll get more guidance about what that court thinks is needed to satisfy Art. III standing requirements…
We have some phenomenal judges, such as Judge Lucy Koh in the N.D. of CA in the 9th Circuit. She recently decided the Matera v. Google case, which laid out a clear, incredibly thoroughly reasoned opinion indicating why specific allegations are substantive violations. As such, these violations give rise to sufficiently concrete and particular injuries in fact. Stay tuned for a more detailed analysis of her 9/23/16 order. I hope to write more about that case here as I reflect on the year’s developments in privacy law.
I will also write more about this a couple of recent cases out of the E.D. Va, including my insights regarding Thomas v. FTS, which lays out some strong arguments that a statutory damages class action attorney may want to crib. A fun but rocky ride ahead of us is guaranteed…
The purpose of a road shoulder is to provide a safe place for drivers to pull off. This is what Todd Moothart, a 50 year old software engineer, thought as he tried to pull his motorcycle out of traffic. A conscientious motorcyclist, he wanted to wait for his friends to catch up. Motorcyclists know that it’s safer to travel in groups on the highway to increase their visibility to other vehicles.
When Todd got separated from his two friends on a beautiful Saturday afternoon in Fall 2013, he decided to pull off on SR 14 and wait for them. But the road shoulder was far from safe. The broken pavement past the edge of the main road–next to the shoulder–dropped off seven inches.
When Todd pulled his Harley Davidson onto the shoulder, his motorcycle wheel hit the face of the seven-inch broken pavement edge. His motorcycle hit the face of the broken pavement, his front and rear wheels were severely dented, and his body was propelled into the air like he was on a trampoline.
Note that safety standards in the transportation engineering field recommend that pavement edge drop offs be kept to a depth of no greater than two
Todd suffered severe injuries, including a kidney laceration, a concussion, amputation of a part of his right index finger, and broken/fractured bones in his upper and lower body.
The design plans for the on-ramp called for an eight-foot paved shoulder on the right-hand side. At the location where Moothart pulled off, there was no paved shoulder at all beyond the fog line. For unknown reasons, the State’s as-built plans for the on-ramp showed an eight-foot paved shoulder, but the evidence indicated that the on-ramp never had an eight-foot paved shoulder in the area where Moothart pulled off. The on-ramp was built in the mid-90s.
Stritmatter Kessler attorneys represented Todd Moothart in trial against the State of Washington in late October/early November of this year. The jury found that the State had failed to maintain the road in a reasonably safe condition.Todd was awarded $2,993,000. Part of the award was for about $500,000 in undisputed past medical bills and wage loss.
Todd was a conscientious motorcyclist who was at the wrong place at the wrong time. Emergencies and split second decisions happen anywhere and anytime. That’s why the shoulder must be maintained per State of Washington standards. The shoulder needs to be safe to pull over for all vehicles. This is the State of Washington has standards for an eight food shoulder with a minimum drop off of 2 inches.
Kudos to our firm’s roadway safety attorneys for educating the jury and judge about the need to keep the State’s road shoulders safe! The government needs to be held accountable, when its roads don’t meet basic safety requirements.
Hopefully making the most out of the extra hour yesterday, transportation workers were busy at work around Seattle yesterday. Why? They were installing 145 signs announcing the new 25 mph arterial-speed limit. The policy behind lowering the arterial speed limit is to reduce traffic related injuries and fatalities.
So…. take note:
The residential speed limit of 25 mph falls to 20 mph throughout the city, including hundreds of unmarked roads — in many cases, too narrow for drivers to exceed 20 anyway.
• The default speed limit of 30 mph for arterials drops to 25 mph citywide,“unless otherwise posted,” according to new signs at the city entrances.
This last point may confuse drivers because some outlying streets that were historically 30 mph have sporadic signs, due to abuse and neglect. The City Council unanimously approved the changes Sept. 26 and is looking to extend the program next year.
Friends at Seattle Greenways were big proponents of this change. Kudos to Cathy Tuttle and Gordon Padelford!
If you haven’t heard by now, the internet was under attack thanks to insecure “internet of things” (IoT) devices. The weapon of choice was the Mirai botnet, which crippled well known sites like CNN, Netflix, Twitter, etc. to a grinding halt. But how exactly did insecure IoT devices help the largest to date cyberattack experienced in the Western hemisphere?
The source of the outage was a distributed distributed denial of service (DDoS) attack, which leveraged a network of IoT devices infected with special malware, known as a “botnet”. The botnet was orchestrated to bombard a server with traffic until it collapsed under the strain. The IoT devices included Xerox, Panasonic and Samsung printers, as well as an array of Chinese manufactured short circuit TVs, DVRs, etc.
Botnets are not new, unfortunately. But a botnet comprised of IoTs is what makes last week’s massive DDoS jaw dropping and terrifying. Why should you or anyone care, especially if technology is not in your wheelhouse? Think of finding out that your garage has served as shelter for a terrorist, who is part of a much larger cell, ready to take down half the country. The terrorist was able to get into your garage easily because you don’t secure it. Guess what? You’re one of the most vulnerable targets if the attack goes down.
Now, bring this back to the IoT framework. Many households are moving toward an connected, IoT world–from refrigerators, thermostats, security systems and security cameras. When everything goes smoothly, we forget how much rely on our IoT devices. It’s only when they’re compromised do we then realize that we may have a big problem.
The crux of the data security challenge that faces us all is that the Mirai botnet revealed how vulnerable we are because of insecure IoTs. The Mirai attack exploited 100,000 connected devices or “malicious endpoints,” which resulted in an epoch attack of 1.2 terabytes/second. Your DVR or short-circuit camera may have served as an unwitting accomplice in the now legendary DDoS attack.