Victims of Montana’s asbestos pollution that killed hundreds sue Warren Buffet’s railroad

LIBBY, Mont. — Paul Resch remembers playing baseball as a child on a field made of asbestos-contaminated vermiculite, just yards from the railroad tracks where trains kicked up clouds of dust as they dumped contaminated material from a mountaintop mine through the northwest town of Libby. Made it to Montana. He liked to sneak into vermiculite-filled storage bins at an adjacent railroad yard to catch pigeons to feed during the long days he spent on the tracks along the Kootenai River.

Today, Resch, 61, is battling an asbestos-related disease that has left severe scarring on his left lung. He gets out of breath easily, tires easily, and knows there is no cure for a disease that could suffocate him over time.

“At some point, probably everyone was exposed to it,” he said, speaking of asbestos-contaminated vermiculite. “There were piles of them along the railroad tracks. … You would see clouds of dust blowing through downtown.”

Nearly 25 years after federal authorities responded to news reports of deaths and illnesses in Libby, a city of about 3,000 residents near the U.S.-Canada border, a number of asbestos victims and their relatives are seeking to publicly account for one of the key players from the business community. in tragedy: BNSF Railway.

According to researchers and health officials, hundreds of people have died and more than 3,000 have been sickened by asbestos exposure in the Libby area. Texas-based BNSF is accused of negligence and wrongful death for failing to control clouds of polluted dust that used to swirl from the rail yard and settle in Libby’s neighborhoods.

The vermiculite was shipped by rail from Libby for use as insulation in homes and businesses across the US

The first trial, which attorneys say will amount to hundreds of lawsuits against BNSF for its alleged role in polluting the Libby community, is set to begin Monday.

Railroad Lawyers – Owned by Berkshire Hathaway Inc. by Warren Buffet – deny responsibility.

Resch works at a car dealership in Libby and his wife is listed as a plaintiff in a pending lawsuit against BNSF in Montana asbestos claims court. He’s not sure if his illness came from the rail yard. Libby’s high school track contained contaminated vermiculite, as did the insulation in the walls and attics of homes he entered during his two decades as a volunteer firefighter.

The plaintiffs for the upcoming lawsuit against BNSF, the estates of Joyce Walder and Thomas Wells, lived near the Libby rail yard and moved decades ago. Both died of mesothelioma, a rare lung cancer caused by asbestos that is disproportionately common in Libby.

The vermiculite mine, a few kilometers away, was closed in 1990. Nine years later, the Environmental Protection Agency arrived in Libby. The subsequent cleanup cost an estimated $600 million, most of which was covered by taxpayer money. The lawsuit is still ongoing, but authorities say levels of asbestos in the air of downtown Libby are 100,000 times lower than when the mine was operating.

Awareness of the dangers of asbestos has increased significantly in the intervening years, and last month the EPA banned the last remaining industrial use of asbestos in the US.

The ban did not address the type of asbestos fibers found in Libby, nor did it cover the so-called “obsolete” asbestos already present in homes, schools and businesses. A long-awaited government analysis of the remaining risks is due on December 1.

Asbestos does not burn and is resistant to corrosion, making it long lasting in the environment. People who inhale the needle-shaped fibers can experience health problems for up to 40 years after exposure. Health officials expect to struggle with newly diagnosed cases of asbestos disease for decades to come.

During a yearlong cleanup of the Libby yard that began in 2003, crews excavated nearly the entire yard, removing approximately 18,000 tons of contaminated soil. In 2020, BNSF signed a consent decree with federal authorities to complete cleanup efforts in Libby, the nearby city of Troy and along 42 miles of railroad right-of-way.

Last year, BNSF won a federal lawsuit against an asbestos treatment clinic in Libby, which the jury found filed 337 false asbestos claims that made patients eligible for Medicare and other benefits. The judge overseeing the case ordered the Center for Asbestos-Related Diseases to pay nearly $6 million in fines and damages, forcing the facility into bankruptcy. It continues to work with fewer staff.

Some asbestos victims saw the case as a ploy to discredit the clinic and undermine lawsuits against the railroad.

In the months leading up to this week’s trial, BNSF attorneys repeatedly tried to shift blame from the company, including by pointing to the actions of W.R. Grace and Co., which owned the mine from 1963 until the its closure. They also questioned whether other asbestos sources could have caused the plaintiffs’ illnesses and suggested that Walder and Wells may have trespassed on railroad property.

U.S. District Court Judge Brian Morris stopped BNSF from blaming the conduct of others as a means of escaping liability. He also said the law does not support the idea that trespass diminishes a property owner’s duty not to cause damage.

Morris has yet to make a final ruling on another key legal issue: the railroad’s claim that its obligation to transport goods for paying customers exempts it from liability.

The plaintiffs claim the yard in the middle of Libby was used for storage and not transportation, meaning the railroad is not exempt. The railroad built a loading facility near the mine, conducted economic analyzes of vermiculite operations and helped commercialize and develop new uses for the material, the plaintiffs said.

The Montana Supreme Court ruled in a separate case that BNSF and its predecessor companies were involved in more than just shipping the product.

The pollution in Libby has led to civil claims from thousands of people who worked at the mine or for the railway, their relatives and others in the area.

BNSF has settled a number of previous lawsuits for undisclosed amounts, attorneys for the plaintiffs said.

Other entities paid substantial settlements. The state of Montana paid $68 million to about 2,000 plaintiffs who said officials failed to warn them about asbestos exposure. WR Grace settled some individual lawsuits for undisclosed amounts of money before filing for bankruptcy reorganization in 2001 and paying $1.8 billion into an asbestos trust fund to settle future cases. The company paid $250 million to the EPA for cleanup efforts and $18.5 million to the state of Montana for environmental damage.

“I really hope they give these people justice,” Resch said of the upcoming trials. “I mean everyone participated, as far as corporate America goes.”