Battle between BNSF, CARD will drag into 2026

Hopes for a simple resolution in the ongoing case of the CARD Clinic vs. BNSF were diminished following a recent filing in federal court.

Judge Dana Christensen heard a number of arguments June 12 from attorneys for the non-profit clinic, the U.S. government and BNSF Railway as the railroad seeks to collect money on the judgment it won in 2023.

The 2023 ruling was ordered by Judge Christensen after a seven-person jury found the Center for Asbestos Related Disease submitted 337 false claims to the federal government. Christensen oversaw a 12-day trial that ended in late June 2023.

Most of the claims at issue in the trial concerned the submission of EHH forms to Medicare, which certified that patients had been diagnosed with an asbestos-related disease and were eligible for coverage under an Affordable Care Act provision created to respond to Libby’s environmental health threat. 

According to CARD Executive Director Tracy McNew, prior to trial, Judge Christensen made a legal ruling that any claim based only on an imaging read by an outside “B-reader” radiologist was invalid, making it likely that those certifications constituted a bulk of the 337 claims.

Two years later, clinic officials are fighting for its future after it was closed on Wednesday, May 7, when the Lincoln County Sheriff's Office served a Writ of Execution on the Center for Asbestos Related Disease, Inc. to satisfy the judgment against the clinic.

Since then, the clinic has moved its operations to 118 West 3rd St. in Libby. They are open from 8 a.m. to 5 p.m. Monday through Wednesday.

BNSF has been sued multiple times with plaintiffs alleging the hauling of vermiculite contaminated with asbestos or failure to clean up rail yards resulted in death and health problems for those who were exposed.

BNSF was Burlington Northern at the time it was transporting vermiculite in Libby. The company became BN in 1970 when four major U.S. railways merged: Great Northern Railway; Northern Pacific Railway; The Chicago, Burlington & Quincy; and Spokane, Portland and Seattle Railway. 

Burlington Northern actively transported vermiculite from the mine in Libby, Montana for decades. The mine closed in 1990. BN merged with the Santa Fe in 1995, forming BNSF Railway. The company is the largest rail network in the country.

Christensen, following a number of rulings June 27 pertaining to motions by the federal government, CARD and CARD employees, ordered the clinic and BNSF to file a joint status report on how they wished to proceed with the debtor’s exam.

The debtor’s exam allows a creditor (BNSF) to question a debtor (CARD) under oath about their financial situation to help collect a court-ordered debt. Creditors can identify assets and income that can be used to satisfy a judgment.

The joint status report was filed July 11 with a proposed schedule that will likely take the matter well into 2026.

According to the schedule, agreed to by both sides, the federal government will provide a determination of federal property interests to CARD by Sept. 15. The clinic would consent to the federal government sharing its determination with BNSF and intervenors Dr. Charles B. Black, Dr. Karen Lee Morrissette, Tracy McNew, Michelle Boltz and Miles Miller.

The current and former employees were granted intervenor status by Judge Christensen after they argued that BNSF’s seizure of the CARD prevented them from defending themselves in an ongoing malpractice suit that was filed Oct. 10, 2024.

The suit alleges medical malpractice, wrongful death and claims of disabling Lincoln County residents by prescribing them opioid pain killers following the misdiagnosis of health issues. The court filing also argues CARD knew or should have known both men didn’t satisfy diagnostic requirements for asbestos-related disease and should not have been giving opioid pain medications in the manner prescribed by CARD providers.

The plaintiffs are Thomas Steiger, the personal representative of the estate of Terry L. Steiger, and Thomas J. Matilas, a Libby resident. According to the suit, Steiger, a Troy resident, was a CARD patient at the time of his death Jan. 12, 2015. Matilas is listed as a former CARD patient. 

Representing them are Libby attorney Amy Guth and the Missoula firm of McFarland, Molloy and Duerk. 

Judge Christensen agreed that CARD employees have an interest in patient and administrative records as well as other materials they may need to defend themselves in the malpractice action.

Following the Sept. 15 deadline, the railway will be able to seek information from clinic about its assets and financial information to trace grant funds.

CARD will be required to respond to BNSF’s inquiries by Oct. 30.

Depositions of CARD witnesses will be taken in December.

Both parties will be required, by Jan. 5, 2026, to submit another joint status report explaining any resolutions between them and any unresolved issues.

If there are unresolved issues, briefs must be filed by Jan. 19, 2026, and the reply briefs must be filed Feb. 2, 2026.

There was one disputed provision where CARD wants to reserve the chance to seek relief from the judge to determine the federal interest in any item of personal property and seek its release.

BNSF objected to the possible inclusion of the provision before the debtor’s exam because it would prevent it from assessing any claim by CARD or the government that a particular asset was bought with 100% grant funds.

Attorneys for the railway also argued that any evaluation of an asset before discovery and depositions occur would defeat the purpose of the debtor’s exam. The exam is intended to give the judgment creditor the ability to assess the evidence and conduct its own investigation about what assets are it may recover.