Montana
BNSF says it didn't know about asbestos that's killed hundreds in Montana town
BNSF Railway attorneys told a Montana jury Friday that the railroad should not be held liable for the lung cancer deaths of two former residents of an asbestos-contaminated Montana town, one of the deadliest sites in the federal Superfund pollution program.
Attorneys for the company say the corporate predecessors of the railroad, owned by Warren Buffett’s Berkshire Hathaway conglomerate, didn’t know the vermiculite they hauled over decades from a nearby mine was filled with hazardous microscopic asbestos fibers or that asbestos was dangerous.
BNSF attorney Chad Knight said the railroad could only be held liable if it could have foreseen the health hazards of asbestos based on information available decades ago when the alleged exposures happened.
“In the 50s, 60s and 70s no one in the public suspected there might be health concerns,” Knight said.
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The case in federal civil court is the first of numerous lawsuits against the Texas-based railroad corporation to reach trial over its past operations in Libby, Montana. Current and former residents of the small town near the U.S.-Canada border want BNSF held accountable for its alleged role in asbestos exposure that health officials say has killed several hundred people and sickened thousands.
The seven-member jury met briefly Friday and planned to resume deliberations on Monday morning. They were instructed to decide if the railroad was at fault in the deaths and if so, the amount of damages to award to their estates. If the jurors find that the railroad should also face punitive damages, a separate hearing would determine that amount.
Looming over the proceedings is W.R. Grace & Co., a chemical company that operated a mountaintop vermiculite mine 7 miles outside of Libby until it was closed 1990. The Maryland-based company played a central role in Libby’s tragedy and has paid significant settlements to victims.
U.S. District Court Judge Brian Morris has referred to the the chemical company as “the elephant in the room” in the BNSF trial. He reminded jurors several times that the case was about the railroad’s conduct, not W.R. Grace’s separate liability.
How much W.R. Grace revealed about the asbestos dangers to Texas-based BNSF and its corporate predecessors has been sharply disputed. The plaintiffs argued that railroad higher-ups were aware, but that workers on the ground in Libby were left out of the loop.
“We’re here to make a party that accepts zero responsibility accept an appropriate amount of responsibility,” plaintiffs’ attorney Mark Lanier said. “This is the fault of the bigwigs in the corporate office.”
The judge instructed the jury it could only find the railroad negligent based on its actions in the Libby Railyard, not for hauling the vermiculite.
The railroad said it was obliged under law to ship the vermiculite, which was used in insulation and for other commercial purposes. It said W.R. Grace employees had concealed the health hazards from the railroad.
Former railroad workers said during testimony and in depositions that they knew nothing about the risks of asbestos. They said Grace employees were responsible for loading the hopper cars, plugging the holes of any cars leaking vermiculite and occasionally cleaned up material that spilled in the rail yard.
The estates of the two deceased plaintiffs have argued that the W.R. Grace’s actions don’t absolve BNSF of its responsibility for failing to clean up the vermiculite that spilled in the railyard in the heart of the community.
Their attorneys said BNSF should have known about the dangers because Grace put signs on rail cars carrying vermiculite warning of potential health risks. They showed jurors an image of a warning label allegedly attached to rail cars in the late 1970s that advised against inhaling the asbestos dust because it could cause bodily harm.
Family members of Tom Wells and Joyce Walder testified that their lives ended soon 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 of Wells played for jurors and recorded the day before he died, he lay in a home hospital bed, struggling to breathe.
“I’ve been placed in a horrible spot here, and the best chance I see at release — relief for everybody — is to just get it over with,” he said. “It’s just not something I want to try and play hero through because I don’t think that there’s a miracle waiting.”
The Environmental Protection Agency descended on Libby after the 1999 news reports. In 2009 it declared in Libby the nation’s first ever public health emergency under the federal Superfund cleanup program.
The pollution in Libby has been cleaned up, largely at public expense. Yet the long timeframe over which asbestos-related diseases develop means people previously exposed are likely to continue getting sick for years to come, health officials say.
MISSOULA, Mont. — In this week’s Amazing America, NBC Montana is highlighting smokejumpers and their efforts to keep our communities safe during wildfire season.
NBC Montana caught up with a current and a former smokejumper to learn more about the work they do and how the job has changed throughout the years.
Jim Kitchen was a smokejumper for 20 seasons, fought over 100 fires and raised his three daughters on a smokejumper base, where he served as base commander.
Kitchen says he’ll never forget his first jump, when he started training in Fairbanks, Alaska, in 1987.
“I went, ‘That was amazing,’ and he goes, ‘Yeah,’ and I go, ‘Have you ever done anything as amazing in your life? I mean, we just made our first jump,” said Kitchen.
Kitchen told NBC Montana when he laughed his crew had to do 50 pushups.
Kitchen saw several changes during his career, including women entering a historically male-dominated field. He told NBC Montana Deanne Shulman, the first woman smokejumper, paved the way for the industry.
He recalled a time when he was on a trip to Washington, D.C. , in the early ’90s to coordinate emergency response, when a U.S. Department of State official asked him a question.
“He goes, ‘I didn’t realize men were smokejumpers.’ And I had to go, ‘Peter, I’ll have you know, there’s quite a few of us, and actually, it’s the women that are rare,’” said Kitchen “The early ladies in smokejumping, they always met and exceeded the bar, and they were instrumental in doing these winter details.”
Another change he oversaw as base commander, was moving from round parachutes used in World War II, to the ones used today.
“Ram-Air parachutes that inflate make the shape of the wing and they actually have about a 20 mph forward speed. And so you can you can fly those in much windier conditions, higher elevations,” said Kitchen.
Kitchen says the job requires you to roll with the punches and make quick decisions on the fly.
He said while training new jumpers, he taught them early to prepare and never hesitate.
“The only thing that we ask of you is that you take all the information that you can and then make a decision,” said Kitchen.
Nick Holloway, a current Missoula smokejumper, who’s been working for 14 seasons, says it’s important to rely on your training, stay positive and persevere.
“Having done this for a few years, it’s just trying to know that essentially every season is a marathon, it’s not a sprint. Just stay healthy, stay focused and keep having a good time,” said Holloway.
NBC Montana asked both men what they were most proud of during their time jumping.
Kitchen recalled fighting a fire near the Grand Canyon, when he and his crew decided to manage a fire instead of suppressing it when they ponderosa pine trees.
The crew let the fire burn to a plateau, “The Ponderosa pine has about a 20 to 30-year fire return interval in that area,” said Kitchen. “That’s one of the high points as far as land stewardship of my career is seeing fire on a landscape escape and not necessarily suppressing it but allowing it to burn, because then you’re saying it’s good for decades after that.”
Holloway told NBC Montana, while he has “too many to count,” he’s most proud that recently he jumped a 3- to 5-acre fire at Yellowstone National Park.
The fire grew to 8 acres, “So seven days later we got around everything, put it all out and essentially with a good product upon departure. So it’s just a classic example of a smokejumper fire.”
Holloway says staying fit for annual trainings, regardless of experience, is critical to staying fire-ready.
“Pushups, pullups, sit-ups, a certain amount and then a mile and a half in a certain time as well,” said Holloway.
Kitchen told NBC Montana he still does his pullups, pushups and sit-ups.
“Many of my colleagues are still in really fit shape even in their 60s, 70s and 80s,” he said.
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