Like other survivors from the crash of Metrolink 111, Mike Wiederkehr will never be the same.
Before, the Burbank resident was a triathlete. After, he could no longer swim or run because of shoulder, knee and ankle injuries. He had to transfer from his position as Glendale’s public works administrator to a lower-paying city job because of post-traumatic stress disorder, a malady that also contributed to the breakup of his first marriage.
A judge awarded him $225,000 for the physical injuries he suffered on Sept. 12, 2008, when the evening commuter train to Ventura collided with a freight train in Chatsworth, slamming his body into the seats.
But after attorney’s fees, medical insurance reimbursements and other recovery expenses, he has only about $30,000 left — far less than the roughly $480,000 needed to cover future medical and rehabilitation costs as well as lost earnings.
Wiederkehr, 55, is now thinking about postponing reconstructive surgery for his shattered ankle out of fear that the long recovery time could jeopardize his current job.
This Wednesday marks the fourth anniversary of one of the worst railroad accidents in the nation. The 25 people who died have long been eulogized and the resulting lawsuits closed. But scores of victims will still face the consequences of a federal liability cap they say has left them inadequately compensated.
Only a year after a Los Angeles judge rationed the available funds among 126 people, some victims are running out of money for care and counseling.
Others who were seriously injured remain out of work, retired earlier than expected or — like Wiederkehr — have been forced to take less-demanding positions at lower pay.
Even those who received the largest judgments because they had the most crippling injuries are unsure they can afford the cost of care and living expenses for the rest of their lives. And for those whose spouses, parents and children were killed, the money was often less than what other court verdicts and government studies have found to be the dollar value of a human life.
“I have seen people in wheelchairs and people with metal rods in their backs who will never work again,” said Claudia Souser of Camarillo, a mother of three who lost her husband, Doyle, a certified public accountant and the family’s sole breadwinner. “Some have five surgeries to go and the money is running out. This is an injustice. Four years out, I’ve learned a lot about grief.”
Doyle Souser’s body was the last to be pulled from the wreckage of Metrolink 111 after it crashed head-on into a Union Pacific train minutes after leaving the Chatsworth station. The commuter train’s engineer and 24 passengers died and 135 were hurt, most of them seriously.
At the time, Connex, a subsidiary of the French conglomerate Veolia Environment, supplied and supervised Metrolink’s train crews.
Federal investigators blamed the collision on a Connex engineer who, they concluded, failed to see a stop signal because he was texting on his cellphone. There also was evidence that Connex did not heed warnings about the engineer’s cellphone use on duty.
In the years since, attempts by the victims to recover damages were frustrated by a 1997 federal law — the Amtrak Reform and Accountability Act — that set a liability ceiling of $200 million per passenger rail accident.
Given the numbers killed and seriously injured, Los Angeles County Superior Court Judge Peter D. Lichtman, who had each victim’s damage request vetted for accuracy, asserted that the awards would be inadequate. Without the cap, he estimated, the judgments would probably total $320 million to $350 million or greater if the victims prevailed at trial.
The largest awards went to Racheal Mofya, now 31, of Simi Valley, who received $9 million, and Michael Kloster, now 52, of Moorpark, who received $7 million. Their attorneys had asked for $23 million and $21 million, respectively.
Mofya, a foreign exchange student who was accepted to medical school in Zambia, her home country, can no longer work because of severe brain injuries. Kloster was nearly cut in half when he was catapulted into a firmly secured writing table — a dangerous fixture that federal investigators had warned Metrolink about after a separate crash five years earlier.
After paying legal fees, reimbursements to medical insurance companies and other related expenses, Mofya ended up with $6 million and Kloster $3.2 million. How long that money will last is an open question, but Mofya will require expensive around-the-clock nursing assistance for the rest of her life and, like Kloster, faces the prospect of future surgeries.
Kloster, whose injuries are expected to shorten his life by 10 to 15 years, is now disputing a $1.2-million lien placed on his home by a health plan provider.
As with Kloster, the crash sent Luis Cruz Aldana, 46, of Thousand Oaks flying into a writing table, injuring his spine and internal organs. Unable to work, the married father of three lost both his trucking company and his home as he waited for damages to be paid.
His attorney asked for $8 million, but Aldana received $4 million. After buying another house and paying crash-related expenses, he has less than $2 million. More surgeries might be necessary, he said, and he has no health insurance.
“What is left is not enough,” Aldana said. “I’m permanently disabled and in constant pain. It’s hard to sleep. I could have worked at least another 20 years.”
Jim Paulson, 62, of Camarillo said that a serious brain injury he suffered from striking a passenger car’s bathroom bulkhead forced him to take early retirement from his job as a freight conductor for the Burlington Northern Santa Fe Railroad. He received a $350,000 award, but after legal fees, reimbursing his medical insurance provider and paying other recovery-related costs, he now has about $200,000.
Because of his injury, Paulson estimates that he has lost about $300,000 in wages and $1,200 a month in pension benefits.
“You try to live your life, but the crash is always there,” Paulson said. “It’s constant. The smell comes back too.”
The families of those killed received from $4.2 million to $5 million for an adult and $1.2 million per teenage child, of which there were several. Victims note that the value of a single human life — as determined by cost-benefit analyses conducted by various federal agencies — is much higher: from $6 million to $9 million. Damages in successful wrongful-death lawsuits can go even higher.
In another indication of the federal cap’s inadequacy, it contained no adjustment for inflation, which has been more than 40% from 1997 to 2011, when the Metrolink awards were distributed. The cost of medical care in that time has increased 108%.
“The cap has no relationship to reality,” said Jenny Fuller of Simi Valley, who lost her husband, Walter, an air traffic control manager at Bob Hope Airport in Burbank. “The survivors have been so shortchanged.”
After the crash, the victims pressed Congress to increase the liability cap and repeatedly demanded that Veolia, the company that supervised the Metrolink engineer, fully cover their damages. They say the French firm, which makes $40 billion to $50 billion annually and carries $800 million in insurance, can afford it.
Alan Moldawer, an executive vice president and general counsel for Veolia, said the company has more than met all its legal obligations by adding $50 million to Metrolink’s $150 million so the liability limit could be reached. Although the crash victims could have challenged the limit, they consented to it, he added.
“The amount was a record settlement, the highest ever paid in a passenger rail situation,” Moldawer said. “Is the cap adequate today? That’s a good question.”
R. Edward Pfiester Jr., a Los Angeles attorney whose firm represented 23 victims, said overturning the cap would be very difficult to do in court. He also said that many victims faced financial hardships due to the crash and could not afford a protracted legal battle.
Efforts by Rep. Elton Gallegly (R-Simi Valley) and Sen. Dianne Feinstein (D-Calif.) to raise the liability limit have failed so far. They largely blame politically powerful railroads and public transit agencies, which say a higher cap would increase their insurance costs.
Gallegly and Feinstein said they have been considering further efforts, but other hurdles remain and any change probably would not apply retroactively.
But the Chatsworth victims say their fight against the liability cap is no longer about them. They note that passenger trains in the future will travel much faster and probably carry more people. What if one of them crashes at high speed and hundreds are injured and killed?