HELENA, Mont. — Lawyers for BNSF Railway are expected to argue before jurors on Friday that the railroad should not be held responsible for the lung cancer deaths of two former residents of a Montana town contaminated with asbestos, one of the deadliest places in the world. federal Superfund pollution program.
The company’s lawyers say the railroad’s predecessor companies, owned by Warren Buffett’s Berkshire Hathaway conglomerate, didn’t know that the vermiculite they transported over decades from a nearby mine was full of dangerous microscopic asbestos fibers.
The federal civil court case over the two deaths is the first of several lawsuits against the Texas-based railroad company to be tried over its past operations in Libby, Montana. Current and former residents of the small town near the U.S.-Canada border want BNSF held accountable for its alleged role in asbestos exposure, which health officials say has killed several hundred people and sickened thousands.
Hovering over the process is WR Grace & Co., a chemical company that operated a mountaintop vermiculite mine seven miles from Libby until it closed in 1990. The Maryland-based company played a central role in the Libby tragedy and paid significant compensation to victims.
U.S. District Court Judge Brian Morris referred to the mining company as “the elephant in the room” in the BNSF trial. He repeatedly reminded jurors that the case was about the conduct of the railroad, not the separate liability of W.R. Grace.
In 2005, the Federal District Attorney’s Office indicted WR Grace and company executives on criminal charges for the contamination at Libby. A jury acquitted them after a trial in 2009.
What WR Grace revealed about the dangers of asbestos to Texas-based BNSF and its corporate predecessors has been hotly contested.
The railroad said it was required by law to transport the vermiculite, which was used in insulation and other commercial purposes, and that WR Grace employees hid the health risks posed by the railroad.
Former railroad workers said in depositions and statements that they knew nothing about the risks of asbestos. They said Grace employees were responsible for loading the cars, plugging the holes in any cars that leaked vermiculite, and occasionally cleaning up the material that spilled into the rail yard.
Former rail yard worker John Swing said in previously recorded testimony that he did not know asbestos was a problem in Libby until a 1999 newspaper report reporting deaths and illnesses among mine workers and their families.
Swing also said he didn’t think the rail yard was dusty. His testimony was at odds with people who grew up in Libby and remember that dust was kicked up whenever the wind blew or a train passed through the yard.
The estates of the two deceased plaintiffs argued that WR Grace’s actions do not absolve BNSF of its responsibility for knowingly exposing people to asbestos at its rail yard in the heart of the community.
Her lawyers said BNSF should have known about the dangers because Grace placed signs on rail cars carrying vermiculite warning of possible health risks. They showed jurors an image of a warning label allegedly affixed to rail cars in the late 1970s that advised against inhaling asbestos dust because it could cause bodily harm.
BNSF higher-ups should also have been aware of the dangers because they attended conferences that discussed dust diseases such as asbestosis in the 1930s, plaintiffs’ lawyers argued.
The Environmental Protection Agency attacked Libby after the 1999 reports. In 2009, it declared Libby the nation’s first public health emergency under the federal Superfund cleanup program.
Pollution in Libby has been eliminated, largely at public expense. However, the long period of time over which asbestos-related diseases can develop means that people previously exposed will likely continue to get sick and die for years to come, health officials say.
Family members of Tom Wells and Joyce Walder testified that their lives ended shortly after they were diagnosed with mesothelioma. Families said dust blown across the rail yard made them sick and killed them.
In a March 2020 video of Wells played for jurors and recorded the day before his death, he lay in a hospital bed, struggling to breathe.
“I’ve been put in a horrible situation here, and the best chance I see for release — relief for everyone — is to get it over with,” he said. “It’s just not something I want to try to play the hero because I don’t think there’s a miracle waiting.”
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Brown reported from Billings, Montana.
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