Ninth Circuit BNSF asbestos case: $8M verdict tossed

The Ninth Circuit BNSF asbestos case has taken a turn after the appellate court reversed a Montana federal court outcome in Wells & Walder v. BNSF, as reported by KPAX.

Ninth Circuit BNSF asbestos case: what the court reversed

In a decision filed Tuesday, the Ninth Circuit Court of Appeals ruled against two families who had been awarded $4 million each in 2024 in Montana federal court. Also, the case involved the estates of Tom Wells and Joyce Walder. Both died in 2020 of mesothelioma, a fatal lung disease, after being exposed to asbestos decades earlier. The lawsuits said both were diagnosed and died within months.

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The families argued the victims were harmed specifically by dust that accumulated at the BNSF railyard in Libby as the railway transported vermiculite from a nearby mine. In 2024, a Montana federal court and jury found the rail company liable. Still, the court decided the common carrier exception did not apply, resulting in an $8 million judgment.

Common carrier exception and vermiculite transportation

BNSF asked the Ninth Circuit Court of Appeals to reverse the district court’s decision. Meanwhile, the plaintiffs were asking the panel to put the case before the Montana Supreme Court.

The Ninth Circuit panel reversed, concluding BNSF was protected by the common carrier exception, according to the Ninth Circuit opinion (PDF). “Today we correctly hold that BNSF is entitled to the common carrier exception to strict liability for its transportation of vermiculite,” the opinion stated. Separately, the panel did not send the case to the Montana Supreme Court.

Jinnifer Jeresek Mariman, an attorney for the plaintiffs, released a statement responding to the opinion. “We respect the Court but disagree with its decision and believe it misapplied Montana law,” she stated. “We are disappointed the Court did not send this case of first impression in Montana to the Montana Supreme Court for it to decide. We are talking with our clients and evaluating our options for an appeal.”

Libby asbestos lawsuit background and Superfund timeline

The lawsuit is one of many tied to asbestos exposure in Libby, and it is the first of those cases to go to trial.

Vermiculite mining started in the 1920s in Libby. In 1963, W.R. Grace bought the mine and would operate it until its closure in 1990. Investigations into public concern over asbestos exposure began years later in 1999. By 2000, the Environmental Protection Agency began removal actions at the site. In addition, in 2002 the agency placed the Libby mine on the Superfund program’s National Priorities List, as outlined in the EPA Superfund site profile.

The first public health emergency for Libby was declared in 2009, almost 30 years after the mine closed. Studies have found that hundreds of Libby residents have died from asbestos-related illnesses since the contamination began.

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