BNSF Railway contributed to two deaths in the Montana town where thousands were sickened by asbestos

HELENA, Mont. (AP) — A federal jury said Monday that BNSF Railway contributed to the deaths of two people who were exposed to asbestos decades ago when contaminated mining material was transported through a Montana town, where thousands fell ill.

The jury awarded $4 million each in damages to the estates of the two plaintiffs who died in 2020. Jurors said asbestos-contaminated vermiculite spilled at the rail yard in the town of Libby, Montana, was a significant factor in the plaintiffs' illnesses and deaths.

Family members of the two victims hugged their lawyers after the verdict was announced. A lawyer for the plaintiffs said the verdict brings some accountability, but a family member told The Associated Press that no amount of money could replace her lost sister.

“I would rather have her than all the money in the world,” Judith Hemphill said of her sister Joyce Walder.

The jury did not find that BNSF acted with malice or indifference, so no punitive damages were awarded. Warren Buffett's Berkshire Hathaway Inc. acquired BNSF in 2010, two decades after WR Grace & Co.'s vermiculite mine near Libby closed and shipments of the contaminated product stopped.

Attorneys for the two victims' estates had argued that the railroad knew the asbestos-contaminated vermiculite was dangerous and failed to clean it up. Residents have described dust from the rail yard blowing through downtown Libby. Both died of mesothelioma, a rare lung cancer linked to asbestos exposure.

Pollution in Libby was largely cleaned up at public expense. But the long period over which asbestos-related diseases develop means that people previously exposed to asbestos are likely to continue to become ill for years, health officials say.

Attorneys for the two victims' estates had argued that the railroad knew the asbestos-contaminated vermiculite was dangerous but did nothing. Both died of mesothelioma, a rare lung cancer linked to asbestos exposure.

The case in federal civil court over the two deaths was the first of numerous lawsuits against the Texas-based railroad over its past activities in Libby. Current and former residents of the small town near the U.S.-Canada border are calling for BNSF to be held accountable, accusing it of playing a role in asbestos pollution that health officials say has killed hundreds of people and sickened thousands.

“This is good news. This is the first case in which the railroad company is held accountable for its actions,” said Mark Lanier, an attorney for the estates of Walder and Hemphill.

BNSF attorney Chad Knight declined to comment after the verdict. He told jurors last week that railroad employees didn't know the vermiculite was filled with dangerous, microscopic asbestos fibers.

“In the ’50s, ’60s and ’70s, no one in the public suspected there might be health concerns,” Knight said Friday.

The railroad's experts also suggested during the trial that the plaintiffs may have been exposed to asbestos elsewhere.

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

U.S. District Judge Brian Morris had told jurors that the railroad could be found negligent only for its actions at the Libby Railyard, not for its transport of the vermiculite.

Former Libby resident Bill Johnston, who watched the trial, said he was glad the victims' estates received a significant award.

Johnston, 67, remembers playing with piles of vermiculite in the rail yard as a child and helping his father bring piles of vermiculite to the home garden, where it was used as a soil conditioner. He, his two siblings and their parents were all diagnosed with asbestos-related illnesses, Johnston said Monday.

“You did not intentionally do anything to cause this damage to your body. Other people knew about it and didn’t care,” he said. “What is it worth? It's hard to put a value on that. But if you say that you will die prematurely or that what life you have left will be tied to an oxygen tank, there should be some value that makes your life easier in the end.”

BNSF was formed in 1995 through the merger of the Burlington Northern Railroad, which had operated in Libby for decades, and the Santa Fe Pacific Corporation.

At the center of the lawsuit was WR Grace, which operated the mountain vermiculite mine 7 miles (11 kilometers) outside Libby until it closed in 1990. The Maryland-based company played a central role in Libby's tragedy and has paid significant compensation to the victims.

Morris called the chemical company “the elephant in the room” during the BNSF trial and repeatedly reminded jurors that the case was about the railroad's conduct, not WR Grace's separate liability.

In 2005, federal prosecutors filed charges against WR Grace and company executives over the Libby contamination. A jury acquitted her after a trial in 2009.

The Environmental Protection Agency attacked Libby after news reports in 1999 of illnesses and deaths among miners and their families. In 2009, the agency declared the nation's first public health emergency in Libby as part of the federal Superfund cleanup program.

A second trial against the railroad over the death of a Libby resident is scheduled for May in federal court in Missoula.

Anna Harden

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