Critics warn bills would let BNSF off hook in asbestos-related suits

The Montana House passed legislation this week that could jeopardize hundreds of wrongful death and contamination lawsuits related to the Libby Asbestos Superfund Site.

In a Feb. 4 House Judiciary Committee Hearing, several lawyers argued that a trio of bills would make it more difficult for private citizens to sue large corporations, including BNSF Railway. 

Anthony Nicastro, R-Billings, who sponsored all three bills, has represented BNSF in several cases involving the railway’s liability in over 3,000 asbestos-related deaths and illnesses in Northwest Montana.

“You’ve got the Chamber of Commerce, and you have the building association, but you don’t have Burlington Santa Fe, which is really the driving force behind this legislation,” said legislation critic Al Smith, representing the Montana Trial Lawyers Association. 

Throughout the 20th century, BNSF transported vermiculture from the W.R. Grace mine to downtown Libby, exposing thousands of residents to a dangerous form of asbestos linked to lung cancer and mesothelioma. In 2024, a federal jury found that the railway contributed to the deaths of two residents and awarded their estates $4 million in compensatory damages, but hundreds of other cases against the railway remain pending. 

Kalispell-based McGarvey Law said that its partners represent about 400 suits against BNSF, all of which will likely face increased legal challenges if the bills pass. 

Especially problematic for plaintiffs is House Bill 303, which would allow BNSF to place the blame squarely on W.R. Grace, even though the company filed for bankruptcy over two decades ago and cannot appear in court. 

“The party that was before the court for what it did, for maintaining the abnormally dangerous condition on its property, they just get a free ticket,” said Roger Sullivan, senior partner for McGarvey Law. 

Sullivan spoke in opposition to House Bill 302, which would require an additional trial for plaintiffs to receive punitive damages, and House Bill 301, which would enforce a strict two-year period of limitation on property damage claims. 

All three bills passed the House this week with near unanimous support from Republicans. A handful of representatives from Northwest Montana voted against the legislation, including Rep. Neil Duram, R-Eureka. 

Duram said his vote was informed by an onslaught of emails from concerned constituents, many of whom had been advised by lawyers that the bills could affect their ongoing court cases.  

“As their representative, I voted the way they would have voted,” said Duram. 

A Senate hearing for the bills has not yet been scheduled.