BNSF potentially liable for asbestos

by Duncan Adams
Staff Writer | March 17, 2020 8:46 AM

The Montana Supreme Court concluded in a unanimous decision March 11 that federal law does not shield the BNSF Railway Co. from potential liability for its alleged role in contributing to asbestos contamination in Libby.

The court’s 36-page opinion, written by Justice Jim Rice, found that BNSF is subject to liability because its actions in handling the asbestos-containing vermiculite ore constitute an “abnormally dangerous” activity as defined by law.

The court found that BNSF could be shielded from “strict liability” for actions undertaken as a common carrier required by law to transport the vermiculite.

But the high court ruling noted that BNSF “may still be found liable under a theory of ordinary negligence for the manner in which it conducted the transport of the vermiculite ore.”

The railroad company had asked the Montana Supreme Court to overturn a ruling last year by the Montana Asbestos Claims Court which found that BNSF was not exempt from liability. BNSF also asked justices to overturn a companion ruling that prohibited the railroad from arguing that W. R. Grace, the owner of the vermiculite mine, caused the asbestos-related injuries suffered by plaintiffs.

The justices overturned neither.

The high court had heard oral argument in the case on Oct. 30.

The text of the March 11 ruling observed that “BNSF’s argument that its actions were not abnormally dangerous because they were conducted on railroads and in railyards misses the point of this factor by failing to mention where the railroad and railyard were located.

“Indeed, it is especially relevant that BNSF’s railyard was located in downtown Libby and its tracks ran through the town, where plaintiffs, as citizens of Libby, are claiming they were injured by exposure to asbestos while conducting their daily activities.”

Plaintiffs in the case are Tracie Barnes, Kenneth Braaten, representing the estate of his late wife, Rhonda Braaten, whom court filings say died from mesothelioma, and Gerri Flores, who has had lung cancer. The plaintiffs allege that their exposure to asbestos and related claims for asbestos-related disease can be linked to BNSF activities.

Asbestos fibers can embed in lung tissue and cause fatal lung diseases, including asbestosis and mesothelioma and other cancers.

In 1999, EPA responded to citizen and media concerns about exposure to asbestos from the vermiculite mine. Local activists and a series of stories in The Seattle Post-Intelligencer stirred agencies into action. EPA placed the Libby site on the federal Superfund program’s National Priorities List in October 2002.

BNSF lawyers had argued, among other things, that provisions of the Federal Railroad Safety Act and the Hazardous Materials Transportation Act preempted the plaintiffs’ injury claims tied to the railway’s alleged role in contributing to asbestos contamination.

The high court’s March 11 ruling noted, “BNSF has not met its burden to demonstrate FRSA and HMTA preempt plaintiffs’ claims.”

In addition, the ruling observed, “Because it is undisputed that BNSF’s properties in Libby contained extensive asbestos contamination, and exposure to asbestos creates a great risk of harm to individuals, the Asbestos Court did not err in concluding this factor weighs in favor of finding BNSF strictly liable.”

Mineral Carbon and Insulating Co., later Zonolite Co., began mining vermiculite in Libby in 1922. W.R. Grace acquired Zonolite in 1963 and operated the vermiculite mine until Sept. 1990.

The Montana Supreme Court’s ruling noted that the vermiculite “contained a significant amount of amphibole asbestos” and that ore processing “released dust containing fine asbestos fibers into the air.”

Ore concentrate was loaded on BNSF railcars. The court noted, “BNSF’s tracks run through town, and its railyard is located in downtown Libby.”

In 2003, after Libby became a federal Superfund site, an initial report from EPA revealed that “asbestos contaminated materials were hauled and shipped through the [BNSF] railyard, and spilled into the soil for decades.”

The plaintiffs have alleged: “An average of 20 non-stop trains consisting of up to 100 cars sped through the Libby railyard at 50 mph on a given day. Asbestos containing dust produced through active disturbance of vermiculite, asbestos contaminated soil and other surfaces would remain suspended for many hours as it drifted throughout the Libby community.”

Jinnifer Jeresek Mariman was one of the attorneys from the Kalispell firm of McGarvey, Heberling, Sullivan and Lacey who represented the plaintiffs. Mariman, a Libby native, said she could not comment about specifics of the high court’s ruling but offered a general reaction.

“We’re pleased with the Supreme Court’s decision and look forward to moving forward with the case,” she said.

The law firm has nearly 1,300 plaintiffs with claims against BNSF and more than 2,000 asbestos-related plaintiffs total.

BNSF, headquartered in Fort Worth, Texas, is a subsidiary of Berkshire Hathaway. The railway has about 32,500 route miles and more 40,000 employees. The company reported total revenues in 2019 of $23.5 billion, with net profit of $5.5 billion. BNSF hauls a variety of cargo, including agricultural products, consumer products, industrial products and coal.

Maia LaSalle, a spokeswoman for BNSF, provided a response to the high court’s ruling.

“The litigation is pending and BNSF is reviewing the court’s order and determining appropriate next steps in light of the order,” she said.

One defense cited by BNSF was tied to a “common carrier” exception for liability. The court acknowledged that “state and federal statutes require BNSF to carry any good offered that can be shipped.” The court found that BNSF was entitled to the common carrier exception for strict liability “imposed as a result of its transporting of vermiculite, which it was required to do by law.”

According to one definition of “strict liability,” a defendant can be liable for committing an action, regardless of what his or her intent was when the event or events happened.

However, the high court noted that “BNSF may still be found liable under a theory of ordinary negligence for the manner in which it conducted the transport of the vermiculite ore.”

BNSF activities aside from transportation of vermiculite are not protected by the common carrier exception, the court found.

The Montana Supreme Court ruling said that the Asbestos Court “may determine which, if any, of BNSF’s ‘other activities’ were not undertaken pursuant to its statutory duty” as a common carrier. Those activities are subject to strict liability.

Ultimately, the case could be heard in Lincoln County District Court.