BNSF Railway says it didn’t know about asbestos that’s killed hundreds in Montana town

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 Montana town, one of the deadliest sites in the federal Superfund pollution program.

Attorneys for the company say the corporate predecessors of the railroad, owned by Warren Buffett’s Berkshire Hathaway conglomerate, 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.

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.

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

The case in federal civil court is the first of numerous lawsuits against the Texas-based railroad corporation to reach trial over its past operations in Libby, Montana. 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 would determine that amount.

Looming over the proceedings is W.R. Grace &Co., a chemical company that operated a mountaintop vermiculite mine 7 miles (11 kilometers) 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 Texas-based BNSF and its corporate 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.

“We’re here to make a party that accepts zero responsibility accept an appropriate amount of responsibility,” plaintiffs’ attorney Mark Lanier said. “This is the fault of the bigwigs in the corporate office.”

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.