Victims of Montana asbestos contamination that killed hundreds take Warren Buffett’s railroad to court

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LIBBY, Mont. — Paul Resch remembers playing baseball as a child on a field built of asbestos-contaminated vermiculite, just yards from the railroad tracks where trains kicked up clouds of dust as they transported contaminated material from a mountaintop mine across the country. the town of Libby, in northwest Montana. He liked to sneak into bins filled with vermiculite in an adjacent railroad yard, to catch pigeons that he would feed during the long days he spent along the tracks along the Kootenai River.

Today, Resch, 61, is battling an asbestos-related disease that has caused severe scarring in his left lung. He tires quickly, he tires quickly, and he knows there is no cure for a disease that could eventually suffocate him.

“At some point, probably everyone was exposed to it,” he said, referring to asbestos-contaminated vermiculite. “There were piles of material along the train tracks. … There would be clouds of dust flying through the center.”

Nearly 25 years after federal authorities responded to news of deaths and illnesses that hit Libby, a town of about 3,000 people near the U.S.-Canada border, some asbestos victims and their families are seeking to hold public accountable. to one of the main corporate players. in the tragedy: BNSF Railway.

According to researchers and health officials, hundreds of people died and more than 3,000 became ill from asbestos exposure in the Libby area. Texas-based BNSF faces accusations of negligence and wrongful death for failing to control clouds of contaminated dust that used to swirl from the rail yard and settle in Libby neighborhoods.

Vermiculite was shipped by rail from Libby for use as insulation in homes and businesses throughout the United States.

The first trial among what attorneys say are hundreds of lawsuits against BNSF for its alleged role in contaminating the Libby community is scheduled to begin Monday.

The railroad, owned by Warren Buffett’s Berkshire Hathaway Inc., has denied liability in court papers and declined further comment.

Resch works at an auto dealership in Libby and his wife is listed as a plaintiff in a pending lawsuit against BNSF in Montana Asbestos Claims Court. He is not sure if his illness was due to the railroad depot. The Libby High School track included contaminated vermiculite, as did insulation in the walls and attics of the homes he entered during his two decades as a volunteer firefighter.

The plaintiffs in the upcoming lawsuit against BNSF, the Joyce Walder and Thomas Wells estates, lived near the Libby rail yard and moved away decades ago. Both died in 2020 from mesothelioma, a rare lung cancer caused by asbestos that is disproportionately common in Libby.

The mine, located just a few kilometers from the city, once produced up to 80% of the world’s supply of vermiculite. It closed in 1990. Nine years later, the Environmental Protection Agency came to Libby, and a subsequent cleanup cost an estimated $600 million, most of it covered by taxpayer money. It’s ongoing, but officials say volumes of asbestos in the air at downtown Libby are 100,000 times lower than when the mine was operating.

Awareness of the dangers of asbestos has grown significantly in the intervening years, and last month the EPA banned the last remaining industrial uses of asbestos in the US.

The ban did not include the type of asbestos fiber found in Libby or address so-called “legacy” asbestos already found in homes, schools and businesses. A long-awaited government analysis of the remaining risks is due December 1.

Asbestos does not burn and resists corrosion, making it durable in the environment. atmosphere. People who inhale needle-like fibers can develop health problems up to 40 years after exposure. Health officials expect to deal with newly diagnosed cases of asbestos disease for decades.

The EPA declared the nation’s first public health emergency under the Superfund cleanup program in Libby in 2009. The contamination sparked civil lawsuits from thousands of people who worked for the mine or the railroad, or who lived in the Libby area.

During a yearlong cleanup of the Libby rail yard that began in 2003, crews excavated nearly the entire yard, removing about 18,000 tons of contaminated soil. In 2020, BNSF entered into a consent decree with federal authorities to resolve its cleanup work in Libby and nearby Troy, as well as a 42-mile (68-kilometer) stretch of railroad right-of-way.

Last year, 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 Diseases to pay nearly $6 million in fines and damages, forcing the facility to file for bankruptcy. It continues to operate with reduced staff.

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

In the months leading up to this week’s trial, BNSF attorneys repeatedly attempted to deflect blame from people who fell ill, including pointing to the actions of W.R. Grace and Co., which owned the mine from 1963 until its closure. They also questioned whether other sources of asbestos could have caused the two plaintiffs’ illnesses and suggested that Walder and Wells may have been trespassing on railroad property.

U.S. District Court Judge Brian Morris prevented BNSF from blaming the conduct of others as a means to avoid liability. And he said the law does not support the idea that trespass reduces the property owner’s duty to do no harm.

Morris has yet to issue a final ruling on another key issue: the railroad’s claim that its obligation to ship goods for paying customers exempts it from liability.

The plaintiffs argue that the rail yard in downtown Libby, where Resch once played in piles of vermiculite, was used for storage and not just transportation, meaning the railroad is not exempt.

The Montana Supreme Court ruled in a separate case that BNSF and its predecessors were more involved in the mine than simply shipping its product.

The mine’s owner, WR Grace, declared bankruptcy in 2001 and paid $1.8 billion into an asbestos trust fund to settle future cases. He paid about $270 million to government agencies for environmental damage and cleanup work. The state of Montana was also criticized in Libby for failing to warn residents about asbestos exposure. He paid settlements totaling $68 million to about 2,000 plaintiffs.

BNSF has settled some previous lawsuits for undisclosed amounts, plaintiffs’ attorneys said. A second trial against the railroad over the death of a Libby resident is scheduled for May in federal court in Missoula.

“I hope they get justice for those people,” Resch said of the upcoming trials. “I mean everyone was in on it as far as corporate America was concerned.” ___

This story has been corrected to reflect the correct spelling of Warren Buffett’s last name. It’s Buffett, not Buffet.


Hanson reported from Helena, Montana.

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