HELENA, Mont. – Attorneys for BNSF Railway are expected to argue before jurors Friday that the railroad shouldn’t be held chargeable for the lung cancer deaths of two former residents of an asbestos-contaminated town in Montana, one among the deadliest sites within the Superfund pollution program of the federal government.
Lawyers for the corporate say the forerunners of the railroad, owned by Warren Buffett's Berkshire Hathaway group, didn’t know that the vermiculite they were transporting for many years from a close-by mine was crammed with dangerous, microscopic asbestos fibers.
The case in federal civil court over the 2 deaths is the primary of diverse lawsuits against the Texas-based railroad company, which is on trial over its past operations in Libby, Montana. Current and former residents of the small town near the U.S.-Canada border are demanding that BNSF be held accountable for its alleged role in asbestos pollution that health officials say has killed lots of of individuals and sickened 1000’s.
The lawsuit centers on WR Grace & Co., a chemical company that operated a vermiculite mine on a mountaintop 7 miles (11 kilometers) outside Libby until it closed in 1990. The Maryland-based company played a central role in Libby's tragedy and has paid significant compensation to the victims.
U.S. District Court Judge Brian Morris called the chemical company “the elephant in the room” within the BNSF lawsuit. He reminded the jury several times that the case was concerning the railroad's conduct, not WR Grace's separate liability.
In 2005, federal prosecutors filed charges against WR Grace and company executives over the Libby contamination. A jury acquitted her after a trial in 2009.
How much WR Grace disclosed concerning the asbestos dangers to Texas-based BNSF and its predecessor firms is hotly debated.
The railroad said it was required by law to ship the vermiculite, which was used for insulation and other industrial purposes, and that WR Grace employees concealed the health risks from the railroad.
Former railroad employees said in testimony and testimony that they knew nothing concerning the risks of asbestos. They said Grace employees were chargeable for loading the bunker cars, plugging the holes in any cars that were leaking vermiculite and sometimes cleansing up material that was spilled on the yard.
Former railroad employee John Swing said in prerecorded testimony that he didn’t know asbestos was an issue in Libby until a 1999 newspaper report reporting deaths and illnesses amongst miners and their families.
Swing also said he didn't think the rail yard was dusty. His statement was at odds with those that grew up in Libby and remember dust being kicked up every time the wind blew or a train rolled through the yard.
The estates of the 2 deceased plaintiffs have argued that WR Grace's actions don’t absolve BNSF of its responsibility for knowingly exposing people to asbestos at its rail yard in the guts of the community.
Her lawyers said BNSF must have known concerning the dangers because Grace had placed vermiculite signs on railroad cars warning of possible health risks. They showed jurors an image of a warning sign that was said to have been placed on railroad cars within the late Nineteen Seventies advising against inhaling asbestos dust since it could cause bodily harm.
BNSF leaders also must have been aware of the hazards because they attended conferences within the Nineteen Thirties that discussed dust-related diseases reminiscent of asbestosis, plaintiffs' lawyers argued.
Family members of Tom Wells and Joyce Walder testified that their lives ended shortly after they were diagnosed with mesothelioma. The families said the dust blowing from the rail yard sickened and killed them.
In a March 2020 video through which Wells played before jurors and was recorded the day before his death, he lay in a house hospital bed struggling to breathe.
“I've been put in a terrible position here, and the best chance I see of getting fired – relief for everyone – is to just get it over with,” he said. “It's just not something I want to try and act out as a hero because I don't think there's a miracle waiting for me.”
The Environmental Protection Agency took motion against Libby following the 1999 news reports. In 2009, the nation's first public health emergency was declared in Libby as a part of the federal Superfund cleanup program.
Pollution in Libby was largely cleaned up at public expense. But the long period over which asbestos-related diseases develop means that folks previously exposed to asbestos are prone to proceed to grow to be unwell for years, health officials say.
BNSF's lawyers argued that it was not liable in Libby since the railroad's obligations as a “common freight carrier” shielded it from some legal claims.
But Morris said the plaintiffs had presented sufficient evidence that the railroad's actions fell outside those legal protections since it engaged in “unusually dangerous activities” by maintaining a freight yard with asbestos that became airborne and spread to Libby could.
The judge cited the derailment and fire of a Norfolk Southern train carrying chemicals through East Palestine, Ohio, last yr. A court found that a few of the railroad's actions in East Palestine weren’t protected by the law, because it voluntarily blew up train cars and burned the chemicals after the derailment in order that it could resume train service.
Morris said BNSF's actions are also not shielded since it isn’t sure by public obligations to keep up the rail yard.
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