Bronx crash: Union head says Metro-North knew dangers

• Metro-North has paid out $22.2 million to settle legal claims from the derailment.
• The railroad has closed a number of gaps in its backup safety system to prevent human error.
• Engineer William Rockefeller has yet to face a disciplinary hearing.

The head of Metro-North’s biggest union says that, in the years before four passengers were killed when a sleeping engineer derailed a speeding train in the Bronx in 2013, his members questioned whether the railroad’s backup safety system could prevent such a crash.

Anthony Bottalico, the general chairman of the Association of Commuter Rail Employees, says the railroad failed to address his union’s concern that the approach to the Spuyten Duyvil curve and others needed a system that automatically puts the brakes on a speeding train when an engineer is unresponsive.

“That had been raised for many, many years,” Bottalico told The Journal News. “Most accidents are human error.”

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In a meeting days after the crash, Bottalico and union members raised similar concerns with Metro-North officials, Metropolitan Transportation Authority spokesman Aaron Donovan confirmed Friday after The Journal News asked about the sitdown. But Donovan could not say whether the union members used the meeting to remind the railroad officials that they'd been telling them about their concerns for several years or whether they were citing its as a change that needed to be made.

In a statement, MTA spokesman Adam Lisberg did not directly address Bottalico's claim but acknowledged that the commuter rail took a different view of its backup safety systems after the crash.

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"Until the Spuyten Duyvil derailment two years ago, every railroad operator on the Hudson Line believed the most important speed protection at that curve was the experience and skill of the engineers operating trains through there," Lisberg said. "Our thinking changed quickly after the derailment, and we installed new signal protections to prevent overspeed operations through the curve."

The MTA is Metro North's parent agency.

Two years after the Hudson Line train went off the rails, Bottalico’s claim joins a growing chorus of questions left unanswered by a derailment that highlighted gaps in Metro-North's backup safety system and forced the railroad to make dramatic changes in an effort to reduce the risks of human error.

Family members of the dead and injured continue to pursue legal claims against Metro-North, while the commuter rail’s passengers are left to wonder whether they are safer now than they were two years ago.

Not the first to fall asleep

On Dec. 1, 2013, Train 8808 was on an early-morning run from Poughkeepsie to Grand Central Terminal when it took a curve at Spuyten Duyvil going 82 mph along a section marked for 30 mph.

Federal railroad investigators say engineer William Rockefeller — suffering from an undiagnosed case of sleep apnea coupled with a recent shift change — fell asleep at the controls before the train derailed, coming to a stop along the banks of the Hudson River. Rockefeller hit the brakes six seconds before the train came to rest. Sixty people were injured.

“Billy Rockefeller wasn’t the first guy that fell asleep,” said Bottalico, a veteran conductor who retired from his union post last week, according to a letter sent by ACRE to union workers on Wednesday. Bottalico was supposed to stay in the post until the end of the year.

Asked why he thought Metro-North chose not to make the safety changes, Bottalico said: “Money. It’s always the money.”

It’s unclear how high up in Metro-North’s command structure the union's concerns reached. Bottalico did not provide any written correspondence documenting the issue. The engineer who Bottalico says first voiced the concern could not be reached for comment. Two days after the crash, the National Transportation Safety Board prevented ACRE from participating in its crash investigation after Bottalico held a news conference and discussed how Rockefeller fell asleep at the controls.

But in the months after the crash, under pressure from the NTSB and the Federal Railroad Administration, Metro-North added safety systems on the approach to the Spuyten Duyvil curve and others where trains have to reduce their speed by 20 mph or more. Now, if an engineer doesn’t slow down, the brakes are automatically applied.

“FRA is requiring this action as the December 1 accident demonstrates that Metro-North’s existing ATC (automatic train control) system and other existing overspeed protections are not sufficient to prevent dangerous over speed events,” the FRA wrote a week after the derailment.

Safety gaps addressed

Since the crash, Metro-North has remedied a number of other gaps in safety highlighted by the crash.

Among them:

• Cab alerters, which force an engineer to acknowledge an audible signal, have been installed in all trains. If the engineer does not respond to the alerter, an ATC system will bring the train to a stop. Older-model trains like 8808 did not have cab alerters on both ends of the train. That meant that, on northbound runs, the cab alerters were in the front cab where the engineer sits. But on southbound runs, the front cab only had a “dead man’s pedal,” which requires continuous pressure from the engineer’s foot to propel the train forward.  
• Sleep apnea evaluations have been done on all engineers.
• Positive train control, a system that provides ATC and more, will be installed on trains by December 2018 with the help of a $1 billion federal loan, Metro-North officials say. The railroad has begun designing the system and expects to have a prototype car equipped by the end of the year.

Second deadliest crash

At the time, the crash at Spuyten Duyvil was the deadliest crash in the commuter rail’s 33-year history. The death total was surpassed in February when a northbound train slammed into a car driven by Ellen Brody in Valhalla. Six, including Brody, were killed.

Months before the Spuyten Duyvil crash, a track worker was killed near West Haven, Connecticut, and a train derailed in nearby Bridgeport, striking an oncoming train and injuring more than 70 people. Taken together, the accidents forced Metro-North to re-examine its dedication to safety at the expense of its on-time performance.

But two years later, as Metro-North tries to move ahead  with a new management team and a new emphasis on safety, it continues to be dogged by the events leading up to the Spuyten Duyvil crash.

To date, Metro-North has shelled out nearly $28.2 million in legal costs and settlements arising from the Bronx derailment, a Journal News investigation published last month found. The figure represents the largest payout so far for four major Metro-North accidents over the past three years.

The railroad has admitted its liability in many of the cases that settled and, as a result, has not been forced to answer questions under oath about the crash, lawyers for the dead and injured say. Lawyers who’ve held out say they have been stymied in their efforts to find out whether the railroad was aware of safety issues at the Spuyten Duyvil curve before the derailment.

“There’s something that they don’t want to get out,” said attorney Robert Vilensky, who represents a former New York City police officer who was injured and suffers from post-traumatic stress disorder.

Vilensky and other lawyers says Metro-North has been quick to settle pending claims.

Rockefeller, meanwhile, has yet to face a disciplinary hearing. He is listed as out-of-service by Metro-North. Veteran railroad employees say it is highly unusual for an employee not to face a disciplinary hearing in the months after a mishap.

Metro-North declined to answer questions about Rockefeller’s status.

“Disciplinary proceedings are a human-resources matter that is afforded a greater degree of privacy than other MTA-related matters,” said Donovan. “We do not speak about disciplinary proceedings until they have concluded.”

Attorney Howard Hershenhorn, who represents a Queens nurse killed in the crash, said he’s still trying to get Rockefeller’s medical records from Metro-North attorneys to determine how and why he fell asleep.

“The question becomes why was it undiagnosed?” Hershenshorn said. “I think it’s an outrage that the NTSB gave him a pass because of the alleged undiagnosed sleep apnea, and his shift being changed. For God’s sakes, he’s a train operator.”

Rockefeller’s attorney, Jeffrey Chartier, could not be reached for comment.

‘I don't trust them’

So far, only one case has gone to trial.

Last month, assistant conductor Maria Herbert choked back tears as she took the witness stand in Manhattan federal court and told a jury why she could never return to work for the railroad.

“I’m very angry and betrayed,” Herbert testified. “I don’t trust them.

“We had this technology in place,” she added. “Metro-North did not use it.”

A jury awarded Herbert, 47, $835,000 to compensate her for PTSD, but she will receive an unspecified amount more than that as the result of a pre-trial agreement with Metro-North.

Her lawyer, George Cahill, cited the railroad’s lack of a cab alerter system, which he said could have roused a sleeping Rockefeller and caused him to hit the brakes.

“There’s no reason why they didn’t put in an alerter,” Cahill said. “You put an engineer in a cab, he could have a heart attack or he could have a stroke. You have to have a fail-safe system.”

Cahill, a former railroad worker, said he and others assumed Metro-North installed ATC along curves after an Amtrak train derailed in Boston’s Back Bay in 1990 under circumstances similar to those at Spuyten Duyvil.

“After the Back Bay crash, they were supposed to look at all curves where there were more than 30-mph speed reductions,” Cahill said. “There were a lot of people who thought ATC was enforcing speed restrictions.”

In its report on the Back Bay crash, the NTSB highlighted the lack of an automatic braking system along the curve as one of the reasons for the crash. The system was added after the crash.

It’s unclear whether top officials at Metro-North were aware of the changes made in the wake of the Back Bay crash.

But MTA Chairman Thomas Prendergast, in his interview with federal investigators months after the Bronx crash, noted that the circumstances regarding the Back Bay crash were “almost exactly the same as Spuyten Duyvil.”

In Herbert’s case, as well as dozens of others, Metro-North admitted its liability and so Cahill did not have a chance to question officials about why the ATC system wasn’t in place before the accident.

Eye off the ball

The Spuyten-Duyvil crash occurred when the working relationship between Bottalico’s union and Metro-North management had been frayed by the death of track worker some seven months before.

Robert Luden, 52, was killed when an inexperienced rail traffic controller sent a train down tracks that were supposed to be closed for maintenance, federal investigators say.

Luden’s death prompted Bottalico to send a scathing letter to then-Metro-North President Howard Permut, questioning the railroad’s commitment to the safety of its workers.

“Our employees and managers tell me they see a railroad in dysfunction, a railroad more concerned with budgets and long meetings and no attention to actual management of the operations,” he wrote.

Bottalico said that many who work on the railroad may have been lulled into a sense that the commuter rail was “a pretty safe system” after years without a major mishap.

“I think we took our eye off the ball,” he said. “It was not something we ever thought would happen.”