HELENA, Mont. — Jury selection began Monday in a lawsuit against Warren Buffett’s BNSF Railway over the lung cancer deaths of two people who lived in a small Montana town near the U.S.-Canada border where thousands of people were exposed to asbestos from a vermiculite mine.
The widespread contamination over decades led the U.S. Environmental Protection Agency in 2009 to declare the first-ever public health emergency during a Superfund cleanup. The Libby, Montana, site is one of the deadliest under the program.
The W.R. Grace & Co. mine near Libby produced 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 across the U.S. where it was heated to expand for use as insulation.
Attorneys for the plaintiffs say the railroad failed to contain dust from the vermiculite, allowing asbestos to be blown around town without warning residents about its dangers. Numerous other lawsuits alleging that BNSF exposed Libby residents to asbestos are still pending, court records show.
The Walder and Wells lawsuit is the first so-called community exposure case to go to trial, almost 25 years after federal authorities arrived in Libby following news reports about widespread deaths and illnesses in the town of about 3,000 people.
People who lived and worked in Libby breathed in the microscopic needle-shaped asbestos fibers that can cause lung scarring and the lung cancer mesothelioma, 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. Regardless, he had to sell his house to help cover the medical bills, he said.
Walderm 66, died in October 2020. 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, which is owned by Buffett’s Berkshire Hathaway Inc., 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.
Attorneys for BNSF said the railroad transported vermiculite after being “repeatedly told it was safe” by W.R. Grace. When low levels of asbestos were found in the Libby rail yard during testing in 2001, BNSF voluntarily cleaned up the site to protect its employees, railroad attorneys said in court documents filed in advance of the trial.
But an expert for the plaintiffs said BNSF and its predecessors knew asbestos was in the vermiculite mined near Libby as early as the 1920s after sponsoring geologic reports in the area. And the railroad knew by the 1930s that asbestos exposure could be hazardous, based on research disseminated at the time through the Association of American Railroads, said plaintiffs’ expert Julie Hart, who chairs the Department of Safety, Health and Industrial Hygiene at Montana Technological University.
The trial, presided over by U.S. District Court Judge Brian Morris, is expected to last several weeks.
On Sunday night, the railroad requested a last-minute change of venue, citing a weekend story by The Associated Press about the trial and asbestos contamination in Libby. Attorneys for the railroad said prospective jurors would be prejudiced by the article, which quoted a 61-year-old Libby resident who has an asbestos-related disease as saying he used to play in the rail yard.
Morris instead allowed jury selection to proceed after telling attorneys not to talk to the news media during the trial.
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 railroad 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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Brown reported from Libby, Montana.
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