Helena, Mont. — BNSF Railway attorneys told a Montana jury Friday that the railroad should not be held liable for the lung cancer deaths of two former residents of an asbestos-contaminated Libby, Mont., one of the deadliest sites in the federal Superfund pollution program, according to an Associated Press story.
BNSF attorney Chad Knight said the railroad could only be held liable if it could have foreseen the health hazards of asbestos based on information available decades ago when the alleged exposures happened. Corporate predecessors of the railroad didn’t know the vermiculite they hauled over decades from a nearby mine was filled with hazardous microscopic asbestos fibers or that asbestos was dangerous.
“In the 50s, 60s and 70s no one in the public suspected there might be health concerns,” Knight saays.
The case in federal civil court is the first of numerous lawsuits against BNSF to reach trial over its past operations in Libby, Mont. 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 several hundred people and sickened thousands.
The seven-member jury met briefly Friday and planned to resume deliberations on Monday morning. They were instructed to decide if the railroad was at fault in the deaths and if so, the amount of damages to award to their estates. If the jurors find that the railroad should also face punitive damages, a separate hearing will determine that amount.
Looming over the proceedings is W.R. Grace & Co., a chemical company that operated a mountaintop vermiculite mine 7 miles outside of Libby until it was closed 1990. The Maryland-based company played a central role in Libby’s tragedy and has paid significant settlements to victims.
U.S. District Court Judge Brian Morris has referred to the the chemical company as “the elephant in the room” in the BNSF trial. He reminded jurors several times that the case was about the railroad’s conduct, not W.R. Grace’s separate liability.
How much W.R. Grace revealed about the asbestos dangers to BNSF and its predecessors has been sharply disputed. The plaintiffs argued that railroad higher-ups were aware, but that workers on the ground in Libby were left out of the loop.
The judge instructed the jury it could only find the railroad negligent based on its actions in the Libby Railyard, not for hauling the vermiculite.
The railroad said it was obliged under law to ship the vermiculite, which was used in insulation and for other commercial purposes. It said W.R. Grace employees had concealed the health hazards from the railroad.
Former railroad workers said during testimony and in 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 any cars leaking vermiculite and occasionally cleaned up material that spilled in the rail yard.
The estates of the two deceased plaintiffs have argued that the W.R. Grace’s actions don’t absolve BNSF of its responsibility for failing to clean up the vermiculite that spilled in the railyard in the heart of the community.
Their attorneys said BNSF should have known about the dangers because Grace put signs on rail cars carrying vermiculite warning of potential health risks. They showed jurors an image of a warning label allegedly attached to rail cars in the late 1970s that advised against inhaling the asbestos dust because it could cause bodily harm.
The Environmental Protection Agency descended on Libby after the 1999 news reports. In 2009 it declared in Libby the nation’s first ever public health emergency under the federal Superfund cleanup program. The pollution in Libby has been cleaned up, largely at public expense.
