Settlements in fatal NJ Transit train station crash top $22 million

By Larry Higgs | nj.com

Eight years after an NJ Transit train crashed through a concrete barrier at Hoboken Terminal, killing a woman walking in the station and injuring 108 people on board, NJ Transit has settled all the passenger lawsuits and claims for more than $22 million.

On Sept. 29, 2016, a Pascack Valley Line train that was creeping into Hoboken Terminal to make its final stop accelerated and slammed through a concrete barrier at the end of the tracks.

Following the crash, 76 people filed lawsuits, including the family of Fabiola Bitter de Kroon, a young mother who was killed by falling debris in the station during the crash. Another 41 people made claims that NJ Transit settled without going to court.

In 2024, the last of those suits were settled.

While none of the cases went to trial, settling with the injured passengers who sued was still a drawn out multiyear process with a blizzard of legal filings and motions, said an attorney who represented 10 passengers and a Seton Hall University law professor.

NJ Transit spent a total of $22.2 million to settle 76 lawsuits and 41 non-lawsuit claims made by passengers on the train and the family of the woman killed in the station, according to information obtained from an Open Public Records request that took six years to answer.

The crash cost NJ Transit, $2.688 million in legal fees, said John Chartier, a spokesperson. Settlements were funded through agency insurance policies and NJ Transit’s operating budget, he said.

Attorney Sheri A. Breen of the Fort Lee law firm of Rosemarie Arnold, which represented 10 passengers injured in the crash, called the process “pretty difficult.”

“It was definitely surprising that this dragged out as long as it did, recognizing that it’s the state and they’re dealing with taxpayers’ money, as opposed to an insurance company,” she said in an interview with NJ Advance Media. “But this case seemed pretty cut and dry and I think it didn’t need to go to the lengths it did.”

In a Feb. 6, 2018 report, the National Transportation Safety Board blamed the crash on the undiagnosed sleep apnea of engineer Thomas Gallagher, who fell asleep at the controls, causing the train to accelerate to almost twice the 10-mph speed limit. The board also faulted the lack of Positive Train Control, an automatic safety feature that could have slowed or stopped the train.

“Unfortunately with this crash, the state took the position that they were going to fight on liability, so their position was the train operator had sleep apnea and that they couldn’t predict he would fall asleep and this accident occurred,” she said in an interview.

The plaintiffs’ attorneys relied on “a tremendous amount of experts” who investigated the sleep apnea issue and an automated system that would have stopped the train and avoided the crash, she said.

“Through discovery, a lot of things came out that indicated they were aware of his sleep apnea,” she said. “But more importantly they didn’t install certain types of preventive measures that regardless of whether this (engineer) had sleep apnea or not, would have prevented the accident.”

That position was reinforced by the National Transportation Safety Board ruling that said NJ Transit’s failure to adequately screen and treat such employees for sleep apnea was a factor. NJ Transit mandated more robust testing for train crews after the crash and before the ruling.

NJ Transit has since installed Positive Train Control on its rail lines, to meet a federally mandated Dec. 31, 2020, deadline to have it approved and operational. Trains approaching terminal platforms must slow to 10 mph and a conductor rides in the cab with the engineer during that final trip segment.

Passengers who sued NJ Transit faced another hurdle, the New Jersey Tort Act, which limited damages a public entities can be sued for, such as pain and suffering and punitive damages, said Professor John V. Jacobi of Seton Hall Law School.

“(It) limits recoveries against public entities including New Jersey Transit significantly,” he said. “It doesn’t allow pain and suffering damages except in pretty extreme cases.”

That reduces a plaintiff’s attorney’s bargaining power, he said.

In tort act claims against a public agency, “there a pretty high threshold of what has to be shown, permanent loss of bodily function, or permanent dismemberment or disfigurement, that’s a pretty high standard to meet,” Jacobi said.

Some of the passengers more than met that threshold.

The highest settlement of $5.5 million was paid to the family of de Koon. Her family filed a $20 million wrongful death suit in June 2017 that was settled in May 2021.

The second highest individual settlement was $2 million paid to train conductor Thomas Dougan in May 2024.

Dougan injured his neck, lower back and knees, and the crash exacerbated injuries to both of his shoulders. Despite his injuries, he helped passengers, and the train’s engineer after the crash, said Samuel Rosenthal, his attorney. His injuries prevented him from returning to work as a conductor.

Bagyalakshmi Subramaniam, a Bergenfield commuter, suffered multiple facial and nasal fractures “requiring surgical internal fixation,” as well as swelling, bruising, scarring disfigurement and amnesia. His case was settled for $1.175 million in June 2021.

Deepti Chanana Bhalla of Hoboken, was injured by falling debris while leaving the station to go to her job as a finance manager two blocks away. Her injuries included fractured ribs, a collapsed lung, lacerations of the spleen, liver and kidney bleeding and lacerations to her lower extremities, according to her lawsuit. Her $10 million lawsuit was settled for $3 million in June 2021.

Sheldon Kest of Tenafly filed a $2 million suit and agreed to a $975,000 settlement. He lost half of a finger in the wreck, suffered a concussion, facial cuts and a shoulder injury after the roof of the train car he was riding in caved in, according to his lawsuit. He later testified about the crash to a joint legislative committee probing NJ Transit.

“The settlements come after five hard fought years of litigation,” Tom Kline and Bob Mongeluzzi, co-counsel, who represented the de Kroon family, Subramaniam, and Kest, said in a statement after a May 21, 2021, settlement.

Why didn’t anyone go to trial?

“The Tort Act limits what plaintiffs can recover and the dynamics argue strongly for settlement,” Jacobi said.

Reliving their crash experiences again is a factor that could prompt a person to settle rather than go forward with a trial, which can take several years, he said.

“Plaintiffs who go forward with litigation have to be deposed (questioned). They will potentially have to testify. There will be time and discomfort revisiting the experience,” he said.

“If you settle, you can get a check. If you go to trial, the delay includes waiting for a trial date, going through a trial and potentially an appeal. And that can take a long time,” he said.

Determining how much a settlement also can be time consuming and complicated.

“After the NTSB report came out … NJ Transit clearly did something wrong. The question is how much New Jersey should pay … that can be a complex calculation,” Jacobi said. “The (state) Attorney General’s office has a responsibility to taxpayers.”

It is not the costliest train crash, in the region.

The December 2013 derailment of a Hudson Line train near the Spuyten Duyvil station in the Bronx, which killed four and injured dozens of others, cost New York’s MTA $60 million to cover claims stemming from the Metro North commuter train crash, LoHud.com reported in 2018.

That crash was blamed on the train’s engineer who fell asleep at the controls of the train as it sped into a curve. It was determined the engineer had an undiagnosed case of obstructive sleep apnea.

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Larry Higgs may be reached at [email protected]. Follow him on X @CommutingLarry

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