Category Archives: Railroad

Product Liability Issues Arising From Rail Car Wheel Cracking and Fatigue

Olson Brooksby PC, product liability and railroad lawyers

Rail car wheel cracking and fatigue can lead to significant product liability exposure and potential negligence claims.  Unless specifically exempted by another statute or federal regulation, Oregon’s product liability statutes, starting at ORS 30.900, govern product liability actions in Oregon, including products such as railroad car wheels.  This article will explore three important studies regarding rail wheel cracking and fatigue issues and will end by discussing critical product liability issues associated with rail wheels.  In rail wheel cases, the phenomena commonly known as rolling contact fatigue (“RCF”) can lead to cracking and even the uncontrolled discharge of portions or rail car wheels.  In extreme circumstances, the wheel itself may be subject to vertical cracking and disintegration.

Rail Car Wheel Cracking:  Three Scientific Studies

There is a vast body peer-reviewed scientific literature that examines the relationship between various manufacturing processes, uses and stresses on railway wheels, and metal fatigue and cracking.  This article explores three such scientific studies that focus on the susceptibility of railway wheels to wear and RCF damage.  As explained in further detail below, studies have found that rail wheel damage is influenced by the properties of the wheel material, including steel composition and hardening techniques.

Below there are links to each study discussed.  If, however, you cannot access the links and would like to review the studies, please contact Olson Brooksby.

The Molyneux-Berry, Davis, and Bevan Study

This study examined railway wheels on fleets from the UK and concluded that the materials that make up the wheels themselves influence the amount of wear and RCF damage that the wheels are subjected to.  Factors that contribute to wheel damage are the composition of the steel, the process by which wheels are manufactured, and loading during operation.

This study can be found here:

The Liu, Stratman, Mahadevan Study

This study developed a 3D “multiaxial fatigue life prediction model” to calculate the life of a rail car wheel and to assist with predictions regarding the timeline of its fatigue.

This study can be found here:

The Peixoto and Ferreira Study

In this study, fatigue crack growth rate behavior tests were performed according to ASTM E647 (2008).  The purpose of this study was to contribute to the development of accurate models that predict fatigue problems in rail car wheels in order to assist with maintenance and safety standards.

This study can be found here:

Defenses to Rail Wheel Product Liability Claims

A common issue in rail wheel cases is the age of the wheel at issue and the amount of use it has received.  When an older wheel is involved, defense counsel for the manufacturer should look first for a defense based on statute of ultimate repose.  ORS 30.905 provides for a ten year statute of repose.  If the plaintiff does not file a claim for personal injury or property damage within ten years from the date the product was first purchased for use or consumption, the claim is barred.  Oregon has a strong statute of ultimate repose.  There are no “useful safe life” or other exceptions or rebuttable presumptions codified in the statute that provides for an absolute ten years.

Absent an ability to obtain a complete dismissal under the statute of ultimate repose, the three studies discussed above illustrate the variety of causation factors and scientific models concerning rail car fatigue issues.  Manufacturing materials and processes, steel fabrication techniques and materials for both wheels and rails, the nature of the loads, gradients, and cycles are all among the factors that provide fertile ground for defending rail wheel claims.

The NTSB’s role in the investigation rail accidents and accident prevention

Scott Brooksby (pictured above) is the chair of Olson Brooksby’s product liability group.  Scott has extensive experience with cases involving the NTSB, including rail and aviation cases.  

This article will discuss statistical and philosophical rail safety.  While rail accidents generally do not garner a great deal of media attention unless, say, a school bus is involved, the NTSB’s role in the investigation rail accidents allows for the compilation of valuable information for those in the rail industry and can assist them with developing solutions for accident avoidance.

The National Transportation Safety Board (NTSB)’s Unique Role In Rail Accident Investigation

The practical reality is that most media attention as it relates to the NTSB is focused on plane crashes.  Plane crashes are unique in their ability to capture the average person’s attention.  While we will not delve into every statutory or regulatory provision or procedure employed by the NTSB, some key elements are worth noting here.  The NTSB is a completely unique federal agency, consisting of five members, one of whom serves as the chair.  The NTSB is congressionally chartered and has subpoena and prosecutorial powers, but it is not an agency supervised by the Executive branch of the U.S. Government.  Its sole and unique mission is to investigate every transportation disaster in the United States, make a probable cause determination, and, if appropriate, issue safety regulations.  It is the only government agency authorized to investigate the causes of transportation accidents and make safety recommendations.  The NTSB’s authority is set out at 49 U.S.C. §§ 1101-1155.

The origin of the NTSB was the Air Commerce Act of 1926.  (NTSB, History of The National Transportation Safety Board, (accessed 5/10/13)).  The NTSB was established in 1967 as the federal government’s primary accident investigation agency for all modes of transportation.  The core of the new agency was the Civil Aeronautics Board’s Bureau of Safety (closed due to the Airline Deregulation Act of 1978).  (Id.)  Originally established with strong ties to the Department of Transportation, these ties were later severed under the Independent Safety Board Act 1974 when the provisions of 49 U.S.C. §§ 1101-1155 enabled the agency.  (Id.)

The NTSB division that handles rail accident investigations is the Office of Railroad, Pipeline and Hazardous Materials Investigations (“the Office”).  (NTSB, Office of Railroad, Pipeline and Hazardous Materials Investigations, (accessed 11/15/13)).  The NTSB makes safety recommendations based on the rail accident investigations it conducts.  (Id.)  The Railroad Division of the Office conducts investigations “involving passenger railroads, freight railroads, commuter rail transit systems and other transportation systems operating on a fixed guideway.  These accidents typically involve collisions or derailments; some of these accidents lead to the release of hazardous materials.”  (Id.)

Rail Fatality Statistics

In 2011, the most recent year for which NTSB statistics for fatal accidents are available, there were 759 rail accidents.  The accident data for 2011 was comprised of trespassers and nontrespassers (499); light, heavy, and commuter rail (230); employees and contractors (24); and passengers (6).  (NTSB, Data & Statistics: 34,434 Transportation Fatalities In 2011 (accessed 10/27/13)).

Information regarding NTSB reports concerning rail accidents going back to the 1970s can be found on the NTSB website at

Causes of Rail Accidents


In September of this year, NTSB Board Member Dr. Mark Rosekind made a presentation to a workshop of locomotive engineers and trainmen.  Mark Rosekind, The NTSB Safety Mission: From Investigation to Recommendation, (last accessed Nov. 15, 2013).   One of the causes of rail accidents that Dr. Rosekind identified is fatigue, about which the NTSB feels strongly and almost constantly designates as a cause of accidents.  As Dr. Rosekind stated in his remarks, “fatigue can degrade the very aspect of human capability”.  (Id.)

On April 17, 2011, there was a collision between two BNSF railway freight trains in Red Oak, Iowa.  (Id.)  The cause of the accident was found to be fatigue.  (Id.)  Specifically, the crew of the striking train was so fatigued that they failed to comply with the signal indication requiring them to stop before colliding with the standing train.  (Id.)  The crew had fallen asleep “‘due to fatigue resulting from their irregular work schedules and their medical conditions.'”   (Id.)

Based on some of the NTSB investigations pinpointing fatigue as the cause of rail accidents, Dr. Rosekind recommends that “fatigue management systems” be developed for operators and that such systems be monitored and continually improved upon in order to reduce fatigue-related accidents.  (Id.)


Another cause of rail accidents is distraction.  (Id.)   In Chatsworth, California, on September 12, 2008, a Metrolink train collided with a Union Pacific train due to an engineer’s texting.  (Id.)  Metrolink’s engineer’s phone records on the day of the accident showed that 95 text messages were sent or received.  (Id.)  During the time the engineer was responsible for operating the train, he sent 21 texts, received 21 texts and made four telephone calls.  (Id.) Upon investigation it was found that the engineer’s phone usage on the day of the accident was consistent with his previous use, so this accident was simply waiting to happen.  (Id.) The cause of the crash was found to be the failure of the Metrolink engineer to observe and respond to the red signal.  (Id.)  Although the Metrolink engineer was prohibited from using his phone while operating the train, he did so anyway, causing the accident.  (Id.)

NTSB Investigations as a Useful Tool for Avoiding Future Rail Accidents

NTSB investigations into rail accidents can serve as useful  tools for avoiding accidents in the future.  Because valuable information is compiled and because the NTSB makes a causation determination for each accident, future rail accidents can be avoided by looking at the causal mechanisms of the accident and implementing systems to avoid such accidents in the future.