MISSOULA — The Ninth Circuit Court of Appeals reversed a district court's decision this week in Wells & Walder v. BNSF, a Libby asbestos case.
In an opinion filed on Tuesday, the Ninth Circuit ruled against two families who were awarded $4 million each in 2024 in Montana federal court.
The case went before the court last October and involved the estates of Tom Wells and Joyce Walder. Both died in 2020 of mesothelioma, a fatal lung disease, after being exposed to asbestos decades ago. Both died within months of being diagnosed.
The plaintiffs argued the victims were harmed specifically from dust that piled up at the BNSF Railyard in Libby, as the railway transported vermiculite from a nearby mine.
In 2024, a Montana federal court and jury decided the rail company was liable and the common carrier exception did not apply.
Common carriers including railways, are subject to federal transportation rules, but can be exempt from state laws because they have to move goods — sometimes even harmful goods, across state lines.
BNSF had asked the Ninth Circuit Court of Appeals to reverse the district court's $8 million judgment.
The plaintiffs were asking the panel to put the case before the Montana Supreme Court.
In Tuesday's filing, the Ninth Circuit panel reversed, saying that BNSF was protected by the common carrier exception.
"Today we correctly hold that BNSF is entitled to the common carrier exception to strict liability for its transportation of vermiculite," the opinion stated.
The panel did not send the case to the Montana Supreme Court.
Jinnifer Jeresek Mariman, an attorney for the plaintiffs, released a statement on the court's opinion.
"We respect the Court but disagree with its decision and believe it misapplied Montana law," she stated. "We are disappointed the Court did not send this case of first impression in Montana to the Montana Supreme Court for it to decide. We are talking with our clients and evaluating our options for an appeal."
This lawsuit is one of many related to asbestos exposure in Libby, but is the first of those to go to trial.
Vermiculite mining started in the 1920s in Libby.
In 1963, W.R. Grace bought the mine and would operate it until its closure in 1990. Investigations into public concern over exposure to asbestos started years later in 1999.
By 2000, the Environmental Protection Agency began removal actions at the site. In 2002, the agency placed the Libby mine on the Superfund program's National Priorities List, which outlines some of the country's most critical waste sites in need of remediation. The first public health emergency for Libby, however, was declared in 2009, almost 30 years after the mine closed.
Studies have found that hundreds of Libby residents have died from asbestos-related illnesses since the contamination began.
In the interest of full transparency, MTN News reporter Sean Wells is a plaintiff in this federal court case. Wells recused himself from all asbestos-related and Libby news coverage in 2021 when he became involved in the litigation. This decision reflects MTN News & Scripps commitment to maintaining journalistic integrity and providing fair, balanced coverage to our viewers. The station makes editorial decisions like this to ensure our reporting remains objective and free from potential conflicts of interest.
