Jury: BNSF Railway contributed to 2 deaths in Montana town where asbestos sickened thousands

HELENA, Mont. (AP) — A federal jury on Monday said BNSF Railway contributed to the deaths of two people who were exposed to asbestos decades ago when tainted mining material was shipped through a Montana town where thousands have been sickened.

The jury awarded $4 million each in compensatory damages to the estates of the two plaintiffs, who died in 2020. Jurors said asbestos-contaminated vermiculite that spilled in the rail yard in the town of Libby, Montana was a substantial factor in the plaintiffs’ illnesses and deaths.

Family members of the two victims hugged their attorneys after the verdict was announced. An attorney for the plaintiffs said the ruling brought some accountability, but one family member told The Associated Press that no amount of money would replace her lost sister.

“I’d rather have her than all the money in the world,” Judith Hemphill said of her sister, Joyce Walder.

The vermiculite from Libby has high concentrations of naturally-occurring asbestos and was used in insulation and for other commercial purposes in homes and businesses across the U.S.

After being mined from a mountaintop outside town, it was loaded onto rail cars that sometimes spilled the material in the Libby rail yard. Residents have described piles of vermiculite being stored in the yard and dust from the facility blowing through downtown Libby.

The jury did not find that BNSF acted intentionally or with indifference so no punitive damages were awarded. Warren Buffett's Berkshire Hathaway Inc. acquired BNSF in 2010, two decades after the W.R. Grace & Co. vermiculite mine near Libby shut down and stopped shipping the contaminated mineral.

The estates of the two victims argued that the railroad knew the asbestos-tainted vermiculite was dangerous and failed to clean it up. Both lived near the rail yard decades ago and died from mesothelioma, a rare lung cancer linked to asbestos exposure.

The pollution in Libby has been cleaned up, largely at public expense. W.R. Grace, which played a central role in the town’s tragedy, filed for bankruptcy in 2001 and paid $1.8 billion into an asbestos trust fund to settle future cases.

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.

The case in federal civil court over the two deaths was the first of numerous lawsuits against the Texas-based railroad corporation to reach trial over its past operations in Libby. Current and former residents of the small town near the U.S.-Canada border want BNSF held accountable, accusing it of playing a role in asbestos exposure that health officials say has killed several hundred people and sickened thousands.

“This is good news. This is the first community exposure case that will hold the railroad accountable for what they’ve done,” said Mark Lanier, an attorney for Walder and Hemphill's estates.

The railroad was considering whether to appeal, said a BNSF spokesperson, who referred to it as a “very sad case.”

"They (the jury) had the difficult task of evaluating conduct that occurred more than 50 years ago, before BNSF ever existed,” said Kendall Sloan, the railroad's director of external communications.

BNSF attorney Chad Knight told jurors last week the railroad's employees didn’t know the vermiculite was filled with hazardous microscopic asbestos fibers.

“In the ‘50s, ’60s and '70s no one in the public suspected there might be health concerns,” Knight said Friday.

The railroad’s experts also suggested during the trial that the plaintiffs could have been exposed to asbestos elsewhere.

The railroad said it was obliged under law to ship the vermiculite, which was used in insulation and for other commercial purposes, and that W.R. Grace employees had concealed the health hazards from the railroad.

U.S. District Judge Brian Morris had instructed the jury it could only find the railroad negligent based on its actions in the Libby Railyard, not for hauling the vermiculite.

Former Libby resident Bill Johnston, who followed the trial, said he was glad the victims' estates got a substantial award.

Johnston, 67, recalled playing in piles of vermiculite at the rail yard as a child and helping his father add piles of the material to their home garden, where it was used as a soil amendment. He, his two siblings and their parents have all been diagnosed with asbestos-related diseases, Johnston said Monday.

“They didn't do anything intentionally to cause this harm to their body. Other people knew about it and didn't care,” he said of Libby asbestos victims. “What's that worth? It's hard to put a value on that. But when you say you're going to die prematurely or the life you have left is going to be tethered to an oxygen bottle, there should be some value that makes their life easier in the end.”

BNSF was formed in 1995 from the merger of Burlington Northern railroad, which operated in Libby for decades, and the Santa Fe Pacific Corporation.

Looming over the proceedings was W.R. Grace, which operated the mountaintop vermiculite mine 7 miles (11 kilometers) outside of Libby until it closed in 1990. Morris referred to the chemical company as “the elephant in the room” during the BNSF trial and reminded jurors repeatedly that the case was about the railroad’s conduct, not W.R. Grace’s separate liability.

Federal prosecutors in 2005 indicted W. R. Grace and executives from the company on criminal charges over the contamination in Libby. A jury acquitted them following a 2009 trial.

The Environmental Protection Agency descended on Libby after 1999 news reports of illnesses and deaths among mine workers and their families. In 2009 the agency declared in Libby the nation’s first ever public health emergency under the federal Superfund cleanup program.

A second trial against the railroad over the death of a Libby resident is scheduled for May in federal court in Missoula.

FILE - An aerial view of the town of Libby, Mont., Feb. 17, 2010. Libby, the town of 3,000 along the Kootenai River has emerged as one of deadliest Superfund pollution sites in the nation's history. A jury on Monday, April 22, 2024, sided with plaintiffs who said BNSF Railway contributed to the deaths of two people exposed to asbestos in Libby decades ago. (AP Photo/Rick Bowmer, File)

A respiratory therapist left, conducts a pulmonary test on a woman at the Center for Asbestos Related Disease, April 4, 2024, in Libby, Mont. The clinic has diagnosed thousands of people with asbestos-related disease following contamination from a nearby mine for vermiculite. A federal jury on Monday, April 22, said BNSF Railway contributed to the deaths in 2020 of two people who were exposed to asbestos in the Libby area decades ago. (AP Photo/Matthew Brown, File)

FILE - Environmental cleanup specialists work at one of the last remaining residential asbestos cleanup sites in Libby, Montana, in mid-September. BNSF Railway attorneys are expected to argue before jurors Friday, April 19, 2024, that the railroad should not be held liable for the lung cancer deaths of two former residents of the asbestos-contaminated Montana town, one of the deadliest sites in the federal Superfund pollution program. (Kurt Wilson/The Missoulian via AP, File)

FILE - Dr. Lee Morissette shows an image of lungs damaged by asbestos exposure, at the Center for Asbestos Related Disease, Thursday, April 4, 2024, in Libby, Mont. BNSF Railway attorneys are expected to argue before jurors Friday, April 19, 2024, that the railroad should not be held liable for the lung cancer deaths of two former residents of the asbestos-contaminated Montana town, one of the deadliest sites in the federal Superfund pollution program. (AP Photo/Matthew Brown, File)

Jury: BNSF Railway contributed to 2 deaths in Montana town where asbestos sickened thousands

Jury: BNSF Railway contributed to 2 deaths in Montana town where asbestos sickened thousands

FILE - In this April 27, 2011, file photo, the entrance to downtown Libby, Mont., is seen. BNSF Railway attorneys are expected to argue before jurors Friday, April 19, 2024, that the railroad should not be held liable for the lung cancer deaths of two former residents of the asbestos-contaminated Montana town, one of the deadliest sites in the federal Superfund pollution program. (AP Photo/Matthew Brown, File)

HOUSTON (AP) — Heavy storms slammed the Houston area again Friday, widening already dangerous flooding in Texas and putting stranded drivers and a school bus of children in need of high-water rescues. Officials redoubled urgent instructions for residents in low-lying areas to evacuate, warning the worst was still to come.

“This threat is ongoing and it’s going to get worse. It is not your typical river flood,” said Harris County Judge Lina Hidalgo, the top elected official in the nation’s third-largest county.

She described the surge of water as “catastrophic” and said several hundred structures were at risk of flooding. There had already been at least two dozen water rescues in the county, in addition to getting 30 pets to safety. Schools in the path of the flooding canceled classes and roads jammed as authorities closed highways taking on water.

For weeks, drenching rains in Texas and parts of Louisiana have filled reservoirs and saturated the ground. Floodwaters began partially submerged cars and roads this week across parts of southeastern Texas, north of Houston, where high waters reached the roofs of some homes.

In the rural community of Shepherd, Gilroy Fernandes said he and his spouse had about an hour to evacuate after a mandatory order. Their home is on stilts near the Trinity River, and they felt relief when the water began to recede on Thursday.

Then the danger grew while they slept.

“Next thing you know, overnight they started releasing more water from the dam at Livingston. And so that caused the level of the river to shoot up by almost five or six feet overnight,” Fernandes said. Neighbors who left an hour later got stuck in traffic because of flooding.

In Montgomery County, Judge Mark Keough said there had been more high-water rescues than he was able to count.

“We estimate we’ve had a couple hundred rescues from homes, from houses, from vehicles,” Keough said.

In Polk County, located about 100 miles (160 kilometers) northeast of Houston, officials have done over 100 water rescues in the past few days, said Polk County Emergency Management Coordinator Courtney Comstock.

She said homes below Lake Livingston Dam and along the Trinity River have flooded.

“It’ll be when things subside before we can do our damage assessment,” Comstock said.

Authorities in Houston had not reported any deaths or injuries. The city of more than 2 million people is one of the most flood-prone metro areas in the country and has long experience dealing with devastating weather.

Hurricane Harvey in 2017 dumped historic rainfall on the area, flooding thousands of homes and resulting in more than 60,000 rescues by government rescue personnel across Harris County.

More than 9 inches (23 centimeters) of rain fell during the past 24 hours, according to the National Weather Service, which has issued a flood warning until Tuesday for the region.

In Crosby, school officials said the driver of a school bus carrying 27 students stopped his vehicle just before driving into high water Friday. The students exited through a rear door and were taken to campuses on another bus. “I am proud of the quick action of our bus driver,” Crosby school district Superintendent Paula Patterson said.

Of particular concern was an area along the San Jacinto River, on the eastern part of the county, which was expected to continue rising as more rain falls and officials release extra water from an already full reservoir. Hidalgo on Thursday issued a mandatory evacuation order for those living along portions of the river.

The weather service reported the river was at 66.2 feet (20.18 meters) Friday morning and expected to crest at 76.6 feet (23.35 meters) on Saturday. The flood stage for the river is 58 feet (17.68 meters), according to the weather service.

Hidalgo warned others who live along the river in southern portions of the county that they could be stranded for days if they remain in their homes. Shelters opened across the region, including nine by the American Red Cross.

In the city of Conroe, just north of Houston, rescuers drove boats into neighborhood subdivisions to rescue people and pets from their homes, then carrying them from the boats to higher ground. In nearby Livingston, neighborhoods were flooded, with water rising to the windshields of moving vans and above the bottom of windows of some buildings.

Storms over the past month in southeast Texas and parts of Louisiana have dumped more than 2 feet (61 centimeters) of rain in some areas, according to the National Weather Service.

The greater Houston area covers about 10,000 square miles — a footprint slightly bigger than New Jersey. It is crisscrossed by about 1,700 miles (2,736 kilometers) of channels, creeks and bayous that drain into the Gulf of Mexico, about 50 miles (about 80 kilometers) to the southeast from downtown.

The city's system of bayous and reservoirs was built to drain heavy rains. But engineering initially designed nearly 100 years ago has struggled to keep up with the city’s growth and bigger storms.

Associated Press reporters Ken Miller in Edmond, Oklahoma, and Jim Vertuno in Austin, and Valerie Gonzalez in McAllen, Texas, contributed to this report.

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A woman reacts as she and others are evacuated by boat from their homes by Montgomery County Sheriff's Office deputies, Friday, May 3, 2024, in Conroe, Texas. Torrential rain is inundating southeastern Texas, forcing schools to cancel classes and closing numerous highways around Houston. (Jason Fochtman/Houston Chronicle via AP)

A woman is handed her child after being evacuated by boat from her homes with the help of deputies with the Montgomery County Sheriff's Office, Friday, May 3, 2024, in Conroe, Texas. Torrential rain is inundating southeastern Texas, forcing schools to cancel classes and closing numerous highways around Houston. (Jason Fochtman/Houston Chronicle via AP)

A child in a car seat is taken out of a boat as residents are evacuated by boat from their homes by Montgomery County Sheriff's Office deputies, Friday, May 3, 2024, in Conroe, Texas. Torrential rain is inundating southeastern Texas, forcing schools to cancel classes and closing numerous highways around Houston. (Jason Fochtman/Houston Chronicle via AP)

Emergency workers with Caney Creek Fire and Rescue carry a dog from a flooded area in the River Plantation area of Conroe, Texas Friday, May 3, 2024. (Jason Fochtman/Houston Chronicle via AP)/

A woman is rescued by airboat from her home by Montgomery County Sheriff's Office deputies on River Plantation Drive, Friday, May 3, 2024, in Conroe, Texas. Torrential rain is inundating southeastern Texas, forcing schools to cancel classes and closing numerous highways around Houston. (Jason Fochtman/Houston Chronicle via AP)

A pickup truck maneuvers a residential street filled with water in Woodloch, Texas, subdivision near The Woodlands as floodwaters rise Friday, May 3, 2024. Torrential rain is inundating southeastern Texas, forcing schools to cancel classes and closing numerous highways around Houston. (Kirk Sides/Houston Chronicle via AP)

A man carries his dogs rescued by boat from his home by Caney Creek Fire and Rescue on River Plantation Drive, Friday, May 3, 2024, in Conroe, Texas. Torrential rain is inundating southeastern Texas, forcing schools to cancel classes and closing numerous highways around Houston. (Jason Fochtman/Houston Chronicle via AP)

Family members survey the damage after a tree fell on the home of Monica Ramirez during a severe storm, Thursday, May 2, 2024, in Spring, Texas. (Brett Coomer/Houston Chronicle via AP)

A helicopter flies above the San Jacinto River, which rose out of its banks in the aftermath of a severe storm, Thursday, May 2, 2024, in Conroe, Texas. (Brett Coomer/Houston Chronicle via AP)

Conroe firefighter Cody Leroy carries a resident evacuated in a boat by the CFD Rapid Intervention Team from her flooded home in the aftermath of a severe storm, Thursday, May 2, 2024, in Conroe, Texas. (Brett Coomer/Houston Chronicle via AP)