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After three months of hearing tear-filled testimony, a Los Angeles judge has divided up $200 million among victims of the 2008 Metrolink crash in Chatsworth - but said it was $64 million short.
In an agonizing decision issued Wednesday, Superior Court Judge Peter D. Lichtman said awards for the 24 dead and more than 100 injured would not be enough because of a federal cap on damages.
"Impossible decisions had to be made," Lichtman wrote in a 33-page ruling. "What was given to one victim had to be taken from another.
"Essentially, a `Sophie's Choice' had to be made on a daily basis. One `Sophie's Choice' is enough for a lifetime, but over 120 of them defies description."
Victims will receive payouts based on the degree of injury - from $12,000 for those with no visible wounds to $9 million for a Zambian exchange student who suffered extensive brain damage, attorneys said.
The judge ruled that $4.2 million would be paid to families of adults who perished, and $1.2 million would be awarded for each child or young adult who died.
"If this Court had the power to return the child, it would do so in an instant and the parents would be ecstatic with that result," Lichtman wrote. "Money will in no way alleviate the suffering."
When it came to compensating the scores of injured passengers, Lichtman suggested their awards may fall short. He said he would have awarded victims $64 million more than the $200 million allowed by federal law.
If each crash case had gone to trial, he said, victims would have gotten between $320 million and $350 million, if not more. There will be no awards for post-traumatic stress, from which all of the victims suffer.
The families will be paid in two months.
"There is not enough money to compensate the victims for future medical care and past pain and suffering," Lichtman wrote.
As a result, taxpayers may wind up footing the bill for some crash victims whose awards will not cover future medical expenses, attorneys and relatives said.
"I am grateful for the efforts of all the people involved in this case for the past 2 years, and specifically Judge Lichtman," said Jenny Fuller, 53, of Simi Valley, who was widowed with three children after her 54-year-old husband, Walt, was killed.
"At the same time, it is hard to know that families will be saddled with unmet needs and unpaid bills for the rest of their lives."
It's been three years since the Metrolink train filled with home-bound commuters smashed head-on into a Union Pacific freight train.
The Sept. 12, 2008, collision between two trains heading 40 mph on a single track hurled passengers aboard Metrolink No. 111 through three cars, killing 25 people, including engineer Robert Sanchez.
Blame for the disaster fell on Sanchez, a contract engineer for Metrolink who ran a red signal while sending a text message to a teenage train buff, federal officials said.
Metrolink and Veolia Environment, a French-based company whose subsidiary had employed the engineer, agreed to pay the $200 million, a figure representing a cap set by Congress to guard railroads from major lawsuits.
The judge's ruling followed three months of hearings that proved especially difficult for aggrieved parents of the crash's youngest victims.
"At the hearing concerning the deaths of the teen child, the act of crying does not describe the emotions presented on that day," Lichtman said. "Inconsolable wailing would probably be the better description.
"Money will in no way alleviate the suffering."
But it would help, said lawmakers and attorneys, who demanded Veolia volunteer the remaining damages, much like British Petroleum exceeded its $75 million cap for the Gulf oil spill by billions.
"Where justice was denied was the arbitrary cap on damages," said Paul R. Keisel, a Los Angeles victims' attorney who served as a liaison for the plaintiffs. "That prevented the judge from awarding them what the system provides - which is the full amount of loss."
"Veolia is trying to shortchange every victim," added Mark Hiepler, another victims' attorney.
U.S. Rep. Elton Gallegly, R-Simi Valley, called for Veolia to "end Sophie's Choices," referring to the choice between two equally unbearable options.
"Now that Judge Lichtman has made his ruling, I once again call upon Veolia to do the right thing and fairly compensate the victims," Gallegly said in a statement. "The company was grossly negligent."
The congressman joined with the rest of California's congressional delegation in calling on Veolia this week to adequately compensate victims.
Veolia, however, has steadfastly declined to pay more than the $200 million limit.
In various statements, company officials said its fund was the largest financial settlement in the history of passenger rail. Set up within two years of the crash, the company said the fund would pay victims many years before they'd have been paid had their lawsuit gone to trial.
This "brings closure to a legal process that was agreed to by all the parties involved in this tragic accident, including the victims and their attorneys," Veolia Transportation said in a statement to the Daily News.
"It is clear that no words and no amount of money can undo that tragic day."
Metrolink did not respond to a request for comment.
Victims praised the Lichtman ruling and vilified Veolia, which they said has hid behind the 1997 cap on rail liability.
Steve Fetchet, 55, of Moorpark, suffered broken ribs, a broken sternum, a bruised heart, collapsed lungs and several cracked teeth. He declined to discuss his medical bills.
"I think the judge did the best job he possibly could under the circumstances," Fetchet said. "It's frustrating all around. There are not enough funds available ... to make everybody whole."
Mackenzie Souser, whose father Doyle was killed on her 13th birthday, called upon Veolia for full support.
"My dad taught me to accept full responsibility for my conduct," said Mackenzie, now 15, of Camarillo, repeating statements she made to Congress. "They should pay 100 percent."
Racheal Mofya, the Zambian exchange student who was studying fashion, had been accepted into medical school at the time of the crash. But when she was catapulted across the first Metrolink car, she suffered a fractured skull, massive brain damage and other disfiguring injuries.
Now she can barely walk and lives with a sister in Minnesota. She hopes to move to an assisted-living home.
While her attorney requested $18 million, Lichtman awarded her $9 million, the highest of any victim.
"She'll never hold a job," said Michael McQueen, her Camarillo-based lawyer. "And the tragedy is, all she knows is she got on a train.
"From a vivacious, energetic, joyful person to a confused (and) frightened girl."
US Congressman Elton Gallegly’s opinion:
Southern California congressman whose district includes dozens of commuter train passengers involved in a catastrophic collision wants to challenge a federal law that sets a $200 million limit on damage payouts to train crash victims.
Last week, the Metrolink system and its former contractor Connex Railroad filed court papers accepting the maximum $200 million in liability for the 2008 crash that killed 25 people and injured more than 100.
Republican Rep. Elton Gallegly said the sum isn’t enough to cover all the victims’ losses and medical expenses.
“That money is going to go quickly,” Gallegly said after meeting some of the victims in Simi Valley. “Whether the amount should be $300 (million) or $350 million or whatever, I want to make sure that we have a way to see that they do receive what’s fair.”
A federal judge is expected to rule on the settlement in October, creating a deadline for taking legislative action to alter the law that was adopted as part of the reauthorization of Amtrak in 1997. The liability cap was included in a package of measures meant to help stabilize the financially troubled carrier.
The cap is being tested, however, by the magnitude of the crash. An independent evaluation of the 109 pending lawsuits, almost all involving passengers, in Los Angeles Superior Court found damages “far exceed $200 million,” said Jerome Ringler, a lead attorney for the victims.
He said challenging the constitutional grounds of the cap in court would be difficult, and a more expedient remedy would be legislative action.
Raymond Conklin, 58, whose legs were badly injured in the crash, said he has had eight surgeries and medical bills totaling more than $1 million.
“I need to fix my knees next, but if I undergo one more surgery that would mean less money in the fund for the other victims if the cap stays in place,” Conklin said. “This is wrong.”
Gallegly said in civil cases the law can be changed retroactively. He said he has been talking with California Sen. Dianne Feinstein and Jim Oberstar, Democratic chairman of the House Transportation and Infrastructure Committee, to form bipartisan support before introducing a bill when Congress gets back in session next month.
“Not everyone is going to agree, but we got to come together and agree to make a bad situation much better,” Gallegly said.
The crash occurred Sept. 12, 2008, when the Metrolink train ran a red light and collided head-on with a Union Pacific freight train in the Chatsworth area of the San Fernando Valley. Investigators believe the commuter train’s engineer, who was provided by Connex, was texting moments before the crash.
Metrolink, created in 1992, is a regional heavy-rail commuter system serving Los Angeles, Orange, Riverside, San Bernardino and Ventura counties.