When Conway Smith slipped in a puddle of oil spilled by a Metro mechanic in the early 1980s, he called Patrick Regan. When Sally McGee was fatally struck by a Metrobus in 2007, her family did the same. And when Carol Glover died after inhaling smoke at L’Enfant Plaza this past January, Glover’s family contacted him, too. Which is why, when I wanted to understand the inner workings of Metro’s 117 miles of track, I dialed Regan and asked him to take a ride.
Regan is the Washington lawyer you call when you want to sue WMATA. In the past three decades, he has handled more than 25 cases worth tens of millions of dollars in damages. Along the way, he has learned the intricacies of things many commuters may glance at—but don’t really see—every day.
We meet downtown one afternoon and descend into the tunnel at Farragut North. Regan’s first piece of advice: “Don’t be afraid to evacuate yourself if Metro’s not doing it quickly enough.” (More on how to do that later.)
When we reach the platform, he stops a few feet from the escalator so we can board what he considers the safest part of the train: one of the center cars. “I never want to be in the first car,” Regan says. “The first car is where almost all of the serious injuries and deaths occurred in the last one.” He means the 2009 crash, in which all nine fatalities happened in the lead car; Regan represented victims’ families. He also avoids the last car, which is similarly vulnerable in a crash.
Regan tells me that he came to the District a year after Metrorail opened. As a law student at Catholic University, he was a Red Line regular. “It worked great in those days,” he recalls. The train that pulls up isn’t crowded, so we plant ourselves by the door—Regan’s preferred spot. “I always stand,” he says. “I’m always within reasonable proximity to the door in case there is an emergency.”
Regan has made the news over the years for other big wrongful-death cases, such as when he represented the family of David Rosenbaum, the New York Times reporter who died after DC first responders delayed treating him after an assault on the street. These days, though, WMATA is Regan’s primary target. For the record, he remains a customer. “I ride it all the time,” he says, including trips to the courthouse to do battle with Metro. “If you take a cab, you’re going to sit in traffic.”
As we head for Fort Totten, site of the 2009 crash, Regan recaps what led to it. Sensors along the tracks underneath us signal a train’s location to workers in the control center, he explains, “so in theory, they’re supposed to be able to see exactly where we are right now.” If trains get too close to each other, an alarm goes off. In 2009, some sensors weren’t working and false alarms were sounding regularly, leading the WMATA controllers simply to ignore them. The now-notorious result: the worst disaster in Metro’s history.
Regan is still explaining the calamity when our own train halts. “I never mind when we’re stopped outside. This is fine,” he says. And if something did happen? We could easily get out by pulling the emergency release near the middle doors, he says. “Some people might not know which is the third rail, but it doesn’t matter. It’s easy to avoid. The third rail is the one that has the cover on it right there. See that?” I do. “It always has the cover on it,” says Regan, which means it’s tougher than you think to be electrocuted. “It’s so easy to not get near the third rail,” he tells me later, “you could do it on crutches.”
Regan’s first clients from the 2009 crash were the children of Ana Fernandez, who was en route to her night shift cleaning offices. As often happens after catastrophes involving multiple lawsuits, a federal judge consolidated dozens of claims and appointed Regan as lead lawyer.
Around 2:15 on a weekday, Fort Totten is nearly deserted, and it’s hard to imagine the chaos that played out here. Also hard to imagine: how such a calamity wouldn’t lead to sweeping systemic changes. While WMATA made specific improvements, its general practice of deferring maintenance until disaster hits hasn’t changed, Regan says. Just look at how fast the Yellow Line train at L’Enfant Plaza was overwhelmed by smoke.
“You know how your heels sometimes get caught in those sidewalk grates?” he asks. “Those are ventilation grates [for Metro tunnels], and most of the time they’re there to bring in fresh air. But they’re also there as a safety valve, because every subway in the world for 100 years has known that a fire could start for all kinds of reasons, and when it does, you have to get the smoke out.”
The National Transportation Safety Board found that two of six fans around the smoke-filled train weren’t working. If the ventilation had functioned properly, Regan says, riders “could’ve stayed down there for five hours and nobody would’ve been hurt.” Instead, Carol Glover was dead within 45 minutes.
We still don’t know why the fans failed. The NTSB is expected to issue a final report early in 2016. Until then, Regan is barred from starting discovery on the case. Among the questions he’s eager to ask is when the fans were last tested and repaired. Metro declined to answer that question for Washingtonian, or to say whether the fans have been inspected system-wide since the accident.
The next train Regan and I board has soiled carpets and mismatched vinyl seats that look ancient—a bad sign. He guesses it’s a 1000-series car, the first Metro ever installed. “Those seats, the lighter orange, that’s the original color,” Regan says. Avoid them. (Make sure the car number, on its exterior in the corner, doesn’t start with a 1.)
At Gallery Place, we hop onto the Yellow Line and get off at L’Enfant Plaza. As the train speeds away toward Virginia—like the one that carried Glover—Regan pounds out the events of that day as if in front of a jury. “The train gets a couple hundred yards down the track and then gets to where the two electrical wires are arcing,” he begins. “It wasn’t a bomb. It wasn’t poisonous gas. It wasn’t a crash. It was two electrical wires arcing—creating a lot of smoke, to be sure, but probably the most benign thing you could imagine in a subway system that would require getting people out. Nobody was initially hurt, and indeed, if they had backed the train into the station, everyone would’ve gotten home.”
Instead, as surely every Metro commuter now knows, another train had already pulled into L’Enfant. Because it was evacuated, it blocked in the train closest to the smoke. All the while, according to the NTSB, Metro’s control center told the distressed train’s operator to “stand by” and keep everyone onboard. The third rail hadn’t yet been switched off. “That shouldn’t take 60 seconds,” says Regan. “They can turn it off in a heartbeat.”
Why didn’t they? He blames a culture of prioritizing revenue over safety: “We know from people who have come forward since January that there is huge pressure to never de-energize the third rail. Because when they de-energize it, they’ve shut [the trains] down”—that is, they’ve shut down the revenue source.
Regan and I are about to board our last revenue-generator of the afternoon. But when it pulls in, we mistakenly end up aligned with the last car. Regan gives a little flick of his right hand. “Let’s move up,” he says.
This article appears in our December 2015 issue of Washingtonian.