Railroads and Asbestos Poisoning

BNSF failed to control clouds of asbestos-laced dust that swirled from a contaminated rail yard and settled in the area, according to a new lawsuit.

Almost 25 years after federal authorities responded to news reports of deaths and illnesses descended on Libby, a town of about 3,000 people near the U.S.-Canada border, some asbestos victims and their family members are seeking to hold publicly accountable one of the major corporate players in the tragedy: BNSF Railway.

However, there may be two sides to the story. In 2023, BNSF won a federal lawsuit against an asbestos treatment clinic in Libby that a jury found submitted 337 false asbestos claims, making patients eligible for Medicare and other benefits. The judge overseeing the case ordered the Center for Asbestos-Related Disease to pay almost $6 million in penalties and damages, forcing the facility into bankruptcy. It continues to operate with reduced staff.

Some asbestos victims viewed the case as a ploy to discredit the clinic and undermine lawsuits against the railroad. BNSF insisted that the verdict would deter “future misconduct” by the clinic.

Between about 1960 and its closure in 1990, the W.R. Grace mine in remote Libby, Montana supplied most of the world’s vermiculite. This substance is an asbestos substitute which, in its pure form, is safe. However, Grace Mine vermiculite was laced with asbestos. As a result, industrial, construction, shipbuilding, and other workers across America were exposed to asbestos and didn’t know it.

Locally, EPA investigators arrived in Libby in 1999 in response to complaints and media investigations regarding asbestos contamination. Their findings were shocking. The agency placed the Grace Mine on the Superfund cleanup list in 2000. Later, in 2009, for the first time in the agency's history, EPA declared a Public Health Emergency in Libby to provide federal health care assistance for victims of asbestos-related diseases.

The EPA completed the cleanup in 2018, and federal prosecutors indicted several former Grace Mine executives. But for the aforementioned victims of asbestos-related disease, the story is just beginning.

Diseases like mesothelioma and asbestosis often have about a 50-year latency period. Usually, no matter how long ago the asbestos exposure occurred, an asbestos exposure lawyer can obtain the financial compensation these families need and deserve. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are usually available in these matters as well.

Normally, property owners could be legally responsible for these damages, even if they did not actually know about the asbestos contamination. However, these cases are complex, as the above story indicates.

Damages are available if an asbestos exposure layer proves the owner had a duty of care and the owner had constructive knowledge (should have known) about the hazard.

Most states, including Montana, use a victim classification system, which divides victims according to their relationship with the owner, to determine the duty of care:

• Invitee (direct or indirect permission to be on the land and financial or nonfinancial benefit to the owner)
• Licensee (permission but no benefit), and
• Trespasser (no permission and no benefit).

Usually, the closer the relationship, the higher the duty of care. Some legal doctrines, such as the attractive nuisance rule, protect some child trespassers in some cases.

These responsibilities do not end at the property line. Owners must address hazards that could foreseeably (possibly) injure bystanders.

Usually, a pre-1980 construction date is sufficient to prove constructive knowledge. Pretty much everything built before 1980 contained asbestos, mostly in the insulation. Other building components, like drywall, and manufactured products, like auto parts, also contained asbestos.

Other legal options for victims include a civil action against the asbestos provider, a bankruptcy victim compensation fund claim, or a no-fault claim, such as VA disability.

Mesothelioma victims need and deserve significant compensation. For a free consultation with an experienced nationwide mesothelioma lawyer, contact the Throneberry Law Group. Virtual, home, and hospital visits are available.