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Legal View with Ashleigh Banfield

Rail Safety Gaps; Lawsuit Against Amtrak; Rail Disruptions Hurting Business. Aired 12-12:30p ET

Aired May 15, 2015 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[12:00:00] KATE BOLDUAN, CNN ANCHOR: Just like Robert Lee. Go to cnnheroes.com.

Thanks, everybody, for joining us AT THIS HOUR.

JOHN BERMAN, CNN ANCHOR: "Legal View" with Ashleigh Banfield starts right now.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield and welcome to LEGAL VIEW.

They've got the wreckage, they've got the black box, actually orange, but filled with data, and they've got video from the train itself, but now investigators in Philadelphia in that Amtrak crash, they're counting the minutes until they can interview the injured engineer. Brandon Bostian. We do not know when that's going to happen, but the lead investigator says that he expects it to happen soon. In fact, quote, "in the coming days."

A bigger question is, what the nine-year Amtrak veteran can add to what the evidence already shows. His lawyer says Bostian has a concussion. And while he wants to cooperate fully, he cannot remember the moment of the crash.

As for the evidence, the locomotive's dash camera is set to show that not only did the train not slow down as it entered a dangerous curve, it actually sped up. And not just a little, a lot, from 70 to more than 100 miles per hour in just around a minute. Bostian's friends and colleagues, meanwhile, say he would never have deliberately been reckless, as Philadelphia's mayor had publicly charged just hours after the wreck had happened.

And that brings me to CNN's Erin McLaughlin, who's standing by live in Philadelphia right now.

Friends are coming out and talking about how passionate this man has been about trains since he was a kid, and they're also talking about some of the comments now that he's been making regarding safety. Can you just fill us in a little more on the profile of the engineer with respect to this, Erin?

ERIN MCLAUGHLIN, CNN CORRESPONDENT: Hi, Ashleigh.

Well, 32-year-old Brandon Bostian does seem to be someone who was very concerned about train safety. In a series of posts to a train forum, he laments that the railroads were not more proactive in installing Positive Train Control. That is the same safety system that in a grim ironic twist the NTSB says could have prevented the crash of Amtrak 188.

Let me read to you some of the posts that we believe Bostian made to that online forum. One post, dated March 11, 2011, he writes, "I wish the railroads had been more proactive in adopting active signaling systems from the get-go. It's easy for them to cry foul that the 2015 deadline is unreasonable, but the reality is that they have had nearly 100 years of opportunity to implement some sort of system to mitigate human error, but with a few notable exceptions, have failed to do so."

And then in another posting dated August 15, 2012, we believe Bostian wrote, "at any point over the previous 80 years the railroad could have voluntarily implemented some form of speed enforcement technology where that Chatsworth, California, wreck took place. But instead, it took an act of Congress to get them to do it, just like it did with air brakes and automatic couplers at the turn of the last century." A reference there to the 2008 Chatsworth train crash that killed 25. After that train crash, Congress mandated Positive Train Control be installed throughout the nation's railroads. A deadline that experts say is looking unlikely that the railroads are going to meet. For its part, Amtrak says that it plans to install Positive Train Control throughout the northeast corridor by the end of December.

Ashleigh.

BANFIELD: Yes, that plan is what the Congress told them to do, but the Congress isn't without some blame here, too. There's a lot of accusations flying around about who is causing all of the hurdles to it being done.

Erin, one last question for you, and that is this. The news broke last night that this engineer does plan to sit down with the NTSB, or at least we're hearing that he has agreed to do so. Any idea exactly what they want to get out of him, apart from the obvious? Any specifics that they want to actually have him guide them through?

MCLAUGHLIN: Well, we know that the NTSB members have said that they plan on sitting down with Bostian and they're going to present him with a blank piece of paper and a pen and ask him to really paint a picture of everything that he remembers that happened that fateful night. Memory being, of course, Ashleigh, a key issue here. His lawyer has said that he does not remember all of the events from that evening due to the concussion that he sustained from the crash. The lawyer does say, though, that it is possible that once that concussion subsides, his memory could return.

BANFIELD: All right, Erin McLaughlin, reporting live for us from Philadelphia. Thank you for that.

[12:05:02] I also want to give you a chance now to hear from some of the people who are close to that engineer, Brandon Bostian, including one person who spoke with him the very night of the derailment.

(BEGIN VIDEO CLIP) JAMES WEIR, FRIEND OF BOSTIAN: I spoke with him. He said that he was in the incident. He did not remember much and he couldn't remember much. He said he had - had some staples and some stitches and he was sore. He was in some pain. He couldn't really talk to me, obviously, because he was getting - he was getting taken care of in the ER.

DREW GRIFFIN, CNN INVESTIGATIONS UNIT: Ever see him drinking?

XAVIER BISHOP, FORMER COLLEAGUE OF BOSTIAN: Never.

GRIFFIN: Ever see him too sleepy?

BISHOP: No.

GRIFFIN: Texting?

BISHOP: No. No.

GRIFFIN: Phone calls?

BISHOP: Never had his phone out. It didn't matter what the situation was, never had his phone out.

GRIFFIN: Let me ask you, what do you think happened?

BISHOP: I - I honestly don't know. I really believe something happened prior to him getting to that curve. We all know what the speed limits are. And it's not a mystery to us. And again, I went up and down these rails with Brandon hundreds of times.

STEFANIE MCGEE, FRIEND OF BOSTIAN: Anybody that's known Brandon will tell you first thing, he loves trains. And love might be an understatement. You know, something he's always talked about. Something, you know, as a 17, 18-year-old boy, he would come back from family vacations with souvenirs of subways and the trains he took and he wouldn't talk about the places, he talked about the trains.

(END VIDEO CLIP)

BANFIELD: I want to talk about the trains now with someone else, Rick Whitley. He is the former derailment investigator for the freight line Conrail.

Rick, you are a perfect person, a perfect source for the questions that I have about this. First and foremost, we don't know yet what the information is on that black box. We don't know what caused that train to speed up, whether it was operator or whether it might have been mechanical. Is there something that you can help me understand in terms of what might have happened - if you're giving the benefit of the doubt to this engineer, what might have happened if it wasn't him at the throttle pushing it forward?

RICK WHITLEY, FORMER DERAILMENT INVESTIGATOR, CONRAIL: Well, if it was electrical or mechanical, then it's him on the throttle. So something happened a few minutes prior to this. And the train increases the speed. The way this all could have been prevented was to simply have another engineer up there with him. You don't need all the other safety controls, all the other money that they want to invest, just put another engineer on there, a qualified engineer, the same that you have in a pilot and a co-pilot on a plane. That many people's lives at -

BANFIELD: So, I have seen that suggested, but if this in fact, Rick, is mechanical, because this engineer's lawyer told "Good Morning America" that the last thing the engineer remembers is that he tried to reduce the speed. But when pushed, meaning, oh, does he remember hitting the emergency brake, he said, no, that's not what he remembers. So what I'm asking is, would there have been something that he might have been trying to do but it was not working? Meaning that throttle was not working. And if that's the case, will the black box save him? Does his fate rest with the black box and it is fallible?

WHITLEY: Well, it's already indicated that the throttle came out and that the speed increased. So that question is already been answered. The problem is, is dynamic braking could have been a possibility. The two types of breaking systems. So if you increase the dynamic brake, you increase the throttle speed. But he many have failed to put the selector switch into the dynamic brake mode and then come up on the throttle. The throttle increases then, thinking it's going to resist and slow them down and do just the opposite. So it could be something wrong in that nature. He deserves the benefit of the doubt, though, until they investigate it all.

BANFIELD: Without question he deserves the benefit of the doubt. With so many possibilities, we have to be open to all of them.

Can I ask you, speaking of the number of possibilities, the investigation of one of the more recent crashes where I think four people died when a Metro North train went off the tracks on a curve in the Bronx, that's almost a year and a half ago and they just announced the resolution to it yesterday, that the engineer will not be charged even though he had fallen asleep. So that's a year and a half. Are - should we expect, Rick, that this is going to take upwards of a year before they can exhaust the facts and truly get to the answers?

WHITLEY: Well, putting all the analytical information together from the different departments, the car department, the track department, the engine, the electrical circuits on the engine itself, the throttle, the crew (INAUDIBLE), what they had to say about the whole thing, it's quite investigative. It takes a long time to put it all together and then come up with the actual cause. So six months is not unusual.

[12:10:05] BANFIELD: Not unusual. Rick Whitley, it's good of you to join us. Thank you for your insights. We appreciate it.

WHITLEY: Thank you. Nice speaking with you.

BANFIELD: Rick Whitley joining us, and thank you again, former derailment investigator for Conrail in Atlanta.

This morning we also want to let you know that funeral services in Hewlett, New York, were held for train crash victim Justin Zemser. That was the plan. He was 20 years old, a Naval Academy midshipman. His mother says he was a community-minded, loving son, a nephew and cousin. His funeral service included full military honors with a bugler and per tradition the brigade of midshipman flag was thrown at half-staff at the Naval Academy as well. Zemser was one of eight, eight passengers who were all killed in that derailment.

We cannot sum them up in bullet points, but we want you to know at least something about them.

Abid Gilani was a senior vice president of Wells Fargo's hospitality finance group. His wife says he was a, quote, "kind family man who did his most to help others."

Jim Gaines worked as a video software architect for the Associated Press. He was 48 years old. He had two kids. His family says he was more precious to them than they can express.

Rachel Jacobs, CEO of a small tech company called ApprenNet. She was married and she leaves behind a two-year-old son. Her family says she was a wonderful mother devoted to her family.

Derrick Griffith was a dean of student affairs and enrollment management for City University of New York Medgar Evers College. And he leaves behind a son.

Robert Gildersleeve was an executive at Ecolab, a chemical company. He was also the father of two teenagers. His sister-in-law says he was a super great dad and husband.

Giuseppe Piras was an Italian national who was visiting the United States on business. He was 41 years old. He was a wine and oil merchant. His family told an Italian newspaper that he took the train because he had missed a flight on Tuesday.

Laura Finamore was 47 and a managing director at Cushman & Wakefield. She leaves behind three brothers. And her family says her smile could light up a room.

Coming up next, the first of what could be many lawsuits filed in this derailment disaster, filed by an injured passenger. And there were upwards of 200 people hurt. So this one happens to be an Amtrak employee. But how likely are the big payouts? And how tricky is a lawsuit like this when so many people are being pointed to as to blame?

(COMMERCIAL BREAK)

[12:16:19] BANFIELD: Amtrak employee Bruce Phillips is the first crash victim to file a lawsuit against his employer after Train 188 derailed. He was in the rear of the train. He was commuting back to New York and his injuries are reportedly extensive, including a traumatic brain injury. But here is the legal twist that could impact Phillip's lawsuit and others if they choose to go the same route and file suit against Amtrak.

Amtrak's liability for the crash in Philadelphia may be capped at $200 million. And the question of whether that will be enough to compensate the victim is already looming over this tragedy. Remember, 200 were injured. Eight people were killed.

Joining me now from Philadelphia is attorney Michael Olley, who is representing Bruce Phillips.

Mr. Olley, thank you so much for being us with. If you could just answer, first and foremost, how is your client doing today?

MICHAEL OLLEY, ATTORNEY FOR AMTRAK EMPLOYEE BRUCE PHILLIPS: He's doing better. He's been released from the hospital, which is good news. He's got a long road ahead of him. He still has a major concussion. He's got orthopedic and neurological injuries. He'll be out of work for some period of time, but will hopefully work towards a recovery.

BANFIELD: So, obviously, at this very early stage, even the NTSB has said it doesn't know exactly what happened and why the train sped up. It could be mechanical. It could be an issue with the operator. It could be a lot of different things. We also know that Positive Train Control would have stopped it, but it wasn't there. So with all of these looming questions, and that's just the tip of the iceberg, really, who are you suing exactly and how can you be so sure you're going after the right party?

OLLEY: Well, the right party in this case is Amtrak. Amtrak is his employer. His situation is a little different in that he is covered under a law called the Federal Employer's Liability Act, which pertains to railroad employees. Mr. Phillips was actually on his way to work at Penn Station. And under that law, the railroad is absolutely required to provide him with a safe place to work. The fact that the train was going in excess of twice the legal limit is a violation of federal regulations. And as a matter of law, Amtrak would be strictly liable to Mr. Phillips and the other Amtrak crew members with regard to that claim.

BANFIELD: And what about the notion that we don't know what caused that to happen? I mean God forbid that this was some kind of tampering issue. Would that still be a liability issue for Amtrak if it was completely out of Amtrak's control?

OLLEY: It may not under the Federal Employers Liability Act in that, you know, even if the equipment is defective in some way, if it's been tampered with, there's case law to support the fact that the railroad would still be liable to Mr. Phillips and the other crew members in that situation. I haven't heard any evidence or allegation that the equipment was tampered with. We're simply going by the NTSB findings to date. First and foremost of which is the fact that this train was going 106 miles an hour in a 50 mile an hour zone, and there are FRA regulation that specifically limit restricted speed in certain areas. And this was a clear violation of that requirement.

BANFIELD: Can I ask you, is there any merit to the notion that the - you know, the liability for what happens and then, of course, for what did not happen, meaning a control was not on the track to slow that train down no matter what made it speed up? You would extend that liability to say the FCC or to Congress because there are a lot of people pointing fingers and blaming parties for being sluggish in getting that Positive Train Control on that section of track. Does that make sense to you?

[12:20:01] OLLEY: Well, not necessarily because, you know, the - Amtrak did have a certain period of time within which to complete Positive Train Control. They've been doing it throughout the northeast corridor. For whatever reason, they did not do it in this particular area, although it was in effect going southbound, coming from New York into Philadelphia.

There's a concept in the law called federal preemption and to make an argument that maybe the railroad should have done more than what Congress may have mandated or required, you're going to get into a legal battle based upon federal preemption. I'm not saying it can't be - that hurdle can't be overcome, but it's going to be a legal issue.

This case is in federal court. I suspect that all of these cases ultimately will wind up in federal court, most likely the eastern district of Pennsylvania. And you've got - you're -

BANFIELD: Yes. So I don't want to get too far into the weeds.

OLLEY: Go ahead.

BANFIELD: Sorry, I just didn't want to get far into the weeds but I think, you know, I was reading a piece in "The New York Times" this morning and it talks about how - how Amtrak's been working feverishly to try to get this done, to try to get those positive train controls, even on that section of track. The gear is there. The switch ain't on. And effectively it's because the federal government did not give them the freedom to get those radio airwaves, just to talk simplistically about it. It forced them to go out, by them all, for private companies, which was a very sluggish and lengthy process.

OLLEY: Right.

BANFIELD: And not only that, there's also this technical need to make it homogenous, all railways need to be able to use the same stuff even though they don't have the same equipment and Congress did not respond to at least one of the requests to boost the funding so that they could make that happen. Do you see where I'm going? Like there seems to be a lot of blame that goes right towards the federal government.

OLLEY: I see where you're going. I see where you're going. I mean -

BANFIELD: We know you can't sue them. We know you can't sue the feds over that.

OLLEY: Right. Correct. And, you know, even with the argument of -

BANFIELD: So, ultimately, if you think - you feel like Amtrak's hands were tied?

OLLEY: Well, that's certainly what we would expect Amtrak to argue in this situation. But what you have to look at is the fact that even before you get to the issue of positive train control, you've got a situation where for whatever reason that locomotive went from 70 miles an hour to 106 miles an hour in a period of 39 seconds and reached a speed of 106 miles an hour on a curved track where the speed restriction was 50 miles an hour. So granted Positive - you know, Positive Train Control maybe could have stopped that situation, but the real issue is, what brought on that situation?

BANFIELD: All right.

OLLEY: Why was that train - why was that locomotive going at that speed in excess of twice the limit?

BANFIELD: Michael Olley, it's good to talk you to. You know, we'll watch your case. We'll see what happens. And certainly I think a lot of eyes, and certainly at your firm as well, want to know what the NTSB comes up with. Thanks very much for being with us.

OLLEY: Thank you.

BANFIELD: Coming up next, beyond the many injuries and lives lost in the Philadelphia derailment, there's also this temporary loss of a critical commuter route. It's disrupting thousands of lives. It is costing the economy millions. And if you think it doesn't affect you because you might not be in this corridor, think again, millions and millions have a ripple effect that goes right across this country.

(COMMERCIAL BREAK)

[12:26:33] BANFIELD: Amtrak's northeast rail line carries 750,000 passengers every day. It is the busiest passenger line in the country. The service is still suspended, though, after Tuesday night's derailment. And that, my friends, is costing businesses that rely on the service millions of dollars. So, seriously, this is a huge hit to the economy.

And joining me with more on this toll is CNN's Cristina Alesci.

I think a lot of people have been focused very much, and rightly so, on the tragedy, why it happened, those who died and the toll ending. I mean we found everybody, we put everybody in place. We now established that. And now we're starting to look at the impact. And it is big.

CRISTINA ALESCI, CNN MONEY CORRESPONDENT: Yes, this is a major ripple effect on the economy. Amtrak itself says it could cost $100 million a day -

BANFIELD: Per day.

ALESCI: In terms of productivity losses, travel-related expenses, huge hit to businesses. And if you really think about it, you're talking about 260 million people a year using this stretch of rail line. And the - Amtrak says that that workforce contributes $50 billion a year to the GDP of this country. And the reason why all of these numbers are important is because the U.S. government is now debating federal support for an upgraded rail system, especially along the northeast corridor, and implementing technology like Positive Train Control. And that is a dollars and cents argument, right? I saw one estimate that says it will cost the country $13 billion over the next 20 years. That doesn't seem like a lot of money when you put these numbers in front of the public like this.

BANFIELD: That - wait, $13 billion over the next 20 years for the - for the train control?

ALESCI: Yes, to implement the - that - that's a rough estimate.

BANFIELD: I mean it's a lot of money but if you think about, you're right, the effect of a loss, because this stops that from happening, not to mention the lives that are lost, which you can't put a dollar figure on at all.

ALESCI: Exactly. Exactly.

BANFIELD: So in the meantime, I had to come back from Philly the other day. We would normally come back via train. And it was really tricky. We ultimately had to, you know, rent a car and drive back. And this is not easy to get around in traffic. And 95 is choked at the best of times. What are people doing?

ALESCI: No, and you're absolutely right. This rail line is used by politicians, by people on Wall Street. They don't have time to drive, right? So they're paying up for airfare. Now, here's the thing. A typical ticket between New York and D.C., as you know, Ashleigh, costs between $200 to $400.

BANFIELD: Yes, it's not cheap.

ALESCI: And I went online today to see what the airfares were. And I saw airfares for the main cabin up to $1,000. Now the airlines say -

BANFIELD: Well, wait, wait, wait, isn't that gouging?

ALESCI: I knew you were going to go there.

BANFIELD: $1,000 for a less than one hour trip for some (INAUDIBLE)?

ALESCI: So we reached out to the airlines and they said this isn't price gouging, this is simply a matter of people already bought up the cheapest fares available and these are the only fares left. Now -

BANFIELD: Cristina Alesci, I have never in my life - and I have lived in New York for over 15 years, I have never in my life seen an airfare from New York to Washington or Philadelphia or Boston for $1,000.

ALESCI: You're absolutely right. And there are consumer groups online that are calling the airlines out. The airlines keep defending their position. Look, their - the other alternative is take a bus. There are, you know, Greyhound is offering some -

BANFIELD: I hear you.

ALESCI: You know, some cheap fares out there, but that is not an efficient way to get there.

BANFIELD: So Greyhound is not offering $300 tickets.

[12:30:02] ALESCI: No.

BANFIELD: OK.

ALESCI: They're actually honoring some Amtrak tickets.

BANFIELD: Are they really? Well, that's really good to know. And you know what, it can be somewhere around the same time at times as well. You never know. Depending on what time you leave.

ALESCI: Depending on traffic.

BANFIELD: Yes. You have to leave at 2:00 in the morning to be guaranteed.

Christina Alesci, thank you. That's critical information, I think gets lost in a lot of the other information, so thank you for that.

ALESCI: Thanks for having me.

BANFIELD: Mystery of that missing United States military helicopter in Nepal -- sadly, we now have answers. But it ended tragically, and we're going to take you live to Nepal, with the sad details, next.

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