BNSF Libby asbestos deaths: 9th Circuit tosses verdict

BNSF Libby asbestos deaths are again at the center of legal scrutiny after a federal appeals court set aside a ruling that had blamed the railroad for contributing to two deaths linked to asbestos exposure in Libby, Montana, as reported by AP News.

9th Circuit overturns BNSF asbestos verdict

The dispute traces back to a civil trial in 2024. A jury awarded $4 million each to the estates of two people who died in 2020. Their families argued that asbestos-contaminated mining material built up at a rail yard in downtown Libby as vermiculite shipments moved through the site and sometimes spilled. They also described dust from the facility blowing across town.

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Meanwhile, in an opinion issued Tuesday, the 9th U.S. Circuit Court of Appeals sided with BNSF, as Railway Supply notes. In addition, BNSF said it was required under law to accept the vermiculite for shipment and that it had been told the material was safe. The ruling also relied on BNSF’s status as a “common carrier” under federal law. That designation can shield carriers from certain legal liabilities.

“The dangerous condition here — accumulated asbestos dust — arose solely from BNSF’s operation as a common carrier executing its federally mandated duty to transport vermiculite,” Judge Morgan Christen wrote in Tuesday’s opinion. He added that BNSF was “protected from strict liability by the common carrier exception.”

BNSF common carrier liability and the Libby railyard

Attorneys for the estates of Joyce Walder and Thomas Wells said they disagreed with the court’s reading of the law and believe it was misapplied. They said they asked to have the matter decided by the Montana Supreme Court, but that request was denied.

“We are disappointed the Federal Appellate Court did not send this case of first impression in Montana to the Montana Supreme Court for it to decide,” the attorneys said in a statement. “We are talking with our clients and evaluating our options for an appeal.”

Separately, a BNSF spokesperson declined to comment on the ruling.

Still, the 2024 trial in Helena, Montana, was the first of many lawsuits against the Texas-based railroad corporation to reach a jury over its past operations in Libby. Current and former residents near the U.S.-Canada border want BNSF held responsible for its alleged role in asbestos exposure that health officials say has killed several hundred people and sickened thousands.

U.S. District Judge Brian Morris told jurors they could find the railroad negligent based on its actions in the Libby railyard. The jury did not find that BNSF acted intentionally or with indifference, and no punitive damages were awarded.

Vermiculite asbestos exposure, W.R. Grace, and EPA Superfund action

Vermiculite mined in Libby has high concentrations of naturally occurring asbestos. It was used in insulation and other commercial products in homes and businesses nationwide. After being extracted from a mountaintop outside town, the material was loaded onto rail cars and sometimes spilled in the Libby rail yard. Residents have described piles of vermiculite stored in the yard, along with dust blowing through downtown Libby.

Warren Buffett’s Berkshire Hathaway Inc. acquired BNSF in 2010, two decades after the vermiculite mine near Libby shut down in 1990 and shipments of the contaminated mineral ended.

Looming over the case is W.R. Grace & Co., the chemical company that operated the vermiculite mine about 7 miles (11 kilometers) outside Libby until it closed. The Maryland-based company paid significant settlements to victims but avoided greater liability after declaring bankruptcy. Attorneys for BNSF said W.R. Grace representatives repeatedly told the railroad the product it was shipping through Libby was safe.

Federal prosecutors indicted W.R. Grace and executives in 2005 over the contamination. A jury acquitted them after a 2009 trial.

The Environmental Protection Agency moved into Libby after 1999 news reports of illnesses and deaths among mine workers and their families. In 2009, the agency declared the nation’s first public health emergency under the federal Superfund cleanup program, as reflected in the Ninth Circuit opinion (PDF).

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