A trial begins Monday against Warren Buffett's BNSF Railway over the lung cancer deaths of two people who lived in a small northwestern Montana town where thousands of people were exposed to asbestos from a vermiculite mine.
For decades, the W.R. Grace & Co. mine near Libby produced the contaminated vermiculite that exposed residents to asbestos, sickening thousands and leading to the deaths of hundreds.
The estates of Thomas Wells, of LaConner, Oregon, and Joyce Walder, of Westminster, California, filed a wrongful death lawsuit in 2021, arguing that BNSF and its corporate predecessors stored asbestos-laden vermiculite in a large rail yard in town before shipping it to plants where it was heated to expand it for use as insulation.
The railroad failed to contain the dust from the vermiculite, allowing it — and the asbestos it contained — to be blown around town without warning residents about its dangers, the lawsuit states.
People who lived and worked in Libby breathed in the microscopic needle-shaped asbestos fibers that can cause the lung cancer mesothelioma or lung scarring called asbestosis, the lawsuit argues.
Wells, 65, died on March 26, 2020, a day after giving a 2 1/2-hour recorded deposition for the lawsuit, talking about his exposure during seasonal work for the U.S. Forest Service in the Libby area in the late 1970s and early 1980s. He said his pain was intolerable and he felt bad that his sons and friend had to take care of him.
Wells said he was diagnosed with mesothelioma in the fall of 2019 after feeling an ache in his back and developing a serious cough. Initially, doctors said there might be a surgical treatment, but that was quickly eliminated. Chemotherapy treatment also didn’t help, but he had to sell his house to help cover the medical bills, he said.
Walder died in October 2020 at the age of 66. She lived in Libby for at least 20 years and could have been exposed to asbestos while fishing and floating on a river that flowed past a spot where vermiculite was loaded onto train cars, according to court records. Her exposure may have also come from playing on and watching games on the baseball field near the rail yard or walking along the railroad tracks and occasionally heating up pieces of vermiculite to watch it puff up, court records said.
BNSF Railway is expected to argue that there's no proof Wells and Walder were exposed to asbestos levels above federal limits, that if they were in the rail yard they were trespassing and that Wells' and Walder's medical conditions were not caused by BNSF.
U.S. District Court Judge Brian Morris is overseeing the trial and has said he expects it to last at least two weeks.
Morris has already ruled that BNSF cannot try to shift blame onto other companies that might also be liable for asbestos exposure in Libby. However, the railway is expected to argue that amounts paid to Wells, Walder or their estates by other parties responsible for asbestos exposure should be deducted from any damages granted in this case.
The human and environmental disaster in Libby has led to civil claims by thousands of residents, including people who worked at the mine or for the railroad, family members of workers who brought asbestos fibers home on their clothes, and residents who say their exposure occurred elsewhere.
The legal settlements have run into the millions of dollars for W.R. Grace & Co., BNSF Railway, other businesses and their insurers. W.R. Grace paid $1.8 billion into an asbestos trust fund in 2021 after the company emerged from bankruptcy protection. The company had previously settled many individual cases.
Another case against BNSF Railway alleging community — rather than work-related — exposure to asbestos is scheduled to go to trial next month in U.S. District Court in Missoula, said Ross Johnson, an attorney who is representing the estate of Mary Diana Moe. She died of mesothelioma in December 2022 at age 79.
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