The Montana Supreme Court filed an opinion earlier this week stating BNSF Railway is not protected from strict liability for hundreds of injury claims filed in the state’s Asbestos Claims Court alleging the railroad company had a hand in spreading toxic asbestos fibers from Libby’s shuttered vermiculite mine.

In early 2019 a Montana Asbestos Claims Court judge ruled BNSF was not barred from liability, that plaintiffs’ claims were not pre-empted by federal law and that the railroad company could not present evidence of non-party conduct to “negate causation” and place blame elsewhere, like on the owners of the mine.

These rulings by Flathead County District Judge Amy Eddy were appealed by BNSF, which asked the high court to overturn the decision and rule the company be barred from liability. Oral arguments on the matter were heard in late 2019.

Attorneys for BNSF argued several points, primarily pointing to how railroad employees did not have a hand in mining, milling or loading the contaminated material that has claimed the lives of hundreds of Libby residents and sickened thousands who have been diagnosed with Libby amphibole asbestos-related diseases.

BNSF also argued regulators had claimed the material was safe throughout the mine’s operations from 1963 to 1990 when mine owner W.R. Grace & Co. hired the railroad company to transport the material.

However, plaintiffs had asked Judge Eddy that the company be held to an even higher standard of liability, or be “strictly liable” for the injuries, regardless of the BNSF’s alleged negligence. They had also asked the District Court to prohibit the railroad giant from arguing that W.R. Grace caused the injuries, not BNSF. Judge Eddy ruled in favor of both of these claims.

And in a synopsis of the 36-page opinion filed Wednesday, the state Supreme Court upheld both of those decisions.

On the matter of W.R. Grace taking fault for the injuries instead, they ruled BNSF could not introduce evidence of Grace’s conduct “in order to argue BNSF did not cause the plaintiff’s injuries.” The Supreme Court also held the years of railroad activities in Libby’s downtown railyard and beyond were considered “abnormally dangerous” and therefore, “BNSF was subject to the strict liability standard.”

However, the Supreme Court also concluded BNSF would not be subject to the liability ruling “for actions it was required by law to perform, namely, transporting the vermiculite, but was nonetheless subject to ordinary negligence liability for such actions.”

The court remanded this decision back to District Court and asked Judge Eddy to determine which of BNSF’s actions were “required by law.”

In other words, the lower court is now tasked with finding out if there should be an exception to strict liability. One example of this that has been argued by BNSF is that the company is a “common carrier” and is required to transport freight.

Jinnifer Mariman, one of the attorneys with McGarvey, Heberling, Sullivan and Lacey in Kalispell that represents the plaintiffs, said “we are pleased with the Supreme Court’s decision and look forward to moving forward with the case. Since the case is still in active litigation, we can’t comment further at this time.”

THE SUPREME Court’s ruling is a huge victory for the families of those impacted by W.R. Grace’s mining operations which, for a long period of time accounted for about 80% of the world’s vermiculite ore.

The mine ceased operations in 1990, then in late 1999 the town’s widespread exposure to toxic exposure was pushed to the limelight first by Daily Inter Lake reporters and soon after by the Seattle Post Intelligencer. The investigations found that W.R. Grace officials had allowed operations at the mine to continue for decades without informing workers of the potential hazards.

When Libby’s situation made national headlines, the United States Environmental Protection Agency launched its own investigations in 2000 and in 2002, placed Libby on the Superfund National Priorities List. The labeling would launch one of the nation’s most ambitious and aggressive decontamination efforts by the EPA. More than 15 years later parts of the cleanup, such as mine area, are still wrapping up.

The EPA’s Initial Pollution Report from 2003 is referenced in the Supreme Court’s opinion. The report revealed “asbestos contaminated materials were hauled and shipped through the [BNSF] railyard, and spilled into the soil for decades,” and “asbestos is...present in soil, raw ore, ore-concentrate and other soil-like materials at various locations in and around the community including the BNSF railyard.”

The opinion also points to tests and monitoring efforts performed by BNSF that showed where the highest concentrations of asbestos could be detected in the air. These tests were conducted by the company at least a decade after the vermiculite mining operations in Libby had ceased, and after BNSF had attempted to excavate and remediate the property.

Libby residents are still being diagnosed with asbestos-related diseases such as mesothelioma, which can have a latency period of 40 years or more. Many of these victims have sought justice in the form of lawsuits, turning to firms such as McGarvey, Heberling, Sullivan and Lacey where lawyers currently represent more than 1,200 plaintiffs, primarily from the Libby and Troy area.

Reporter Kianna Gardner can be reached at 758-4407 or kgardner@dailyinterlake.com