BNSF Railway says it didn’t know about asbestos that’s killed hundreds in Montana town

HELENA, Mont. — BNSF railroad attorneys are expected to argue before jurors Friday that the railroad should not be held liable for the lung cancer deaths of two former residents of an asbestos-contaminated town in Montana, one of the deadliest sites in the federal pollution program. Superfund.

Lawyers for Warren Buffett’s company say the railroad’s predecessors were unaware that the vermiculite it had shipped from a nearby mine for decades was filled with dangerous microscopic asbestos fibers.

The case in federal civil court over the two deaths is the first of numerous lawsuits against the Texas-based railroad to go to trial 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 that health officials say has killed hundreds of people and sickened thousands.

Looming over the proceedings is WR Grace & Co., a chemical company that operated a vermiculite mine on a mountaintop seven miles outside Libby until it closed in 1990. The Maryland-based company played a central role in Libby’s tragedy and has paid out significant settlements to the victims.

U.S. District Court Judge Brian Morris has called the mining company “the elephant in the room” in the BNSF lawsuit. He reminded jurors several times that the case was about the railroad’s conduct, not W.R. Grace’s separate liability.

Federal prosecutors in 2005 charged W.R. Grace and company executives with criminal charges over the Libby contamination. A jury acquitted them after a 2009 trial.

How much WR Grace revealed about the asbestos dangers to Texas-based BNSF and its predecessors is sharply disputed.

The railroad said it was legally required to ship the vermiculite, which was used for insulation and other commercial purposes, and that WR Grace employees had concealed the health risks from the railroad.

Former railroad workers said during testimony and depositions that they knew nothing about the risks of asbestos. They said Grace employees were responsible for loading the hopper cars, plugging the holes of cars that were leaking vermiculite and occasionally cleaning up material that ended up in the yard.

Former railroad worker John Swing said in previously recorded testimony that he did not know asbestos was a problem in Libby until he reported in the newspaper in 1999 about deaths and illnesses among miners and their families.

Swing also said he didn’t think the rail yard was dusty. His testimony contradicted people who grew up in Libby and remember dust kicking up when the wind blew or a train passed through the yard.

The estates of the two deceased plaintiffs have argued that WR Grace’s actions do not absolve BNSF of its responsibility for knowingly exposing people to asbestos on its railroad property in the heart of the community.

Their lawyers said BNSF should have known about the dangers because Grace had posted signs on train cars with vermiculite warnings of possible health risks. They showed jurors an image of a warning label allegedly placed on train cars in the late 1970s that advised against breathing the asbestos dust because it could cause bodily harm.

Senior BNSF officials should also have been aware of the dangers because they attended conferences in the 1930s where dust diseases such as asbestosis were discussed, plaintiffs’ attorneys argued.

The Environmental Protection Agency came after Libby after the 1999 news reports. In 2009, it declared Libby’s first-ever public health emergency under the federal Superfund cleanup program.

The pollution in Libby has been cleaned up largely at government expense. But the long time frame in which asbestos-related diseases can develop means that people previously exposed are likely to stay sick and die for years, health officials say.

Family members of Tom Wells and Joyce Walder testified that their lives ended shortly after they were diagnosed with mesothelioma. The families said the dust blowing from the rail yard sickened and killed them.

In a March 2020 video of Wells, played for jurors and recorded the day before he died, he lay in a hospital bed at home and struggled to breathe.

“I’ve been put here in a terrible place, and the best chance I see for release – relief for everyone – is to just end it all,” he said. “It’s just not something I want to play as a hero because I don’t think there’s a miracle waiting.”

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Brown reported from Billings, Mont.