Petition for Writ of Certiorari — Jackson Wells, as Personal Representative for the Estate of Thomas E. Wells, Deceased, et al., Petitioners v. BNSF Railway Company, a Delaware corporation

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Ninth Circuit (February 24, 2026) ..................... 1a

Order, U.S. District Court for the

District of Montana Great Falls Division

(July 15, 2024) .................................................. 27a

Order, U.S. District Court for the

District of Montana Great Falls Division

(July 11, 2024) .................................................. 29a

Special Verdict For Plaintiff Wells

(April 22, 2024) ................................................. 52a

Special Verdict For Plaintiff Walder

(April 22, 2024) ................................................. 55a

Order, U.S. District Court for the

District of Montana Great Falls Division

(October 16, 2023) ............................................ 58a

REHEARING ORDER

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Ninth Circuit

(April 7, 2026) ................................................... 80a

ORDER IN PREDECESSOR CASE

Order Establishing the Asbestos Claims Court

and Consolidating Cases, Supreme Court of

Montana, No. AC 17-0694, In Re Asbestos

Litigation (November 28, 2017) ....................... 82a

APPENDIX TABLE OF CONTENTS (Cont.)

CONSTITUTIONAL AND STATUTORY PROVISIONS

Relevant Constitutional and Statutory Provisions

and Judicial Rule.............................................. 86a

28 U.S.C. § 1652 ............................................... 86a

Mont. Const. Art. II, § 3 ................................... 86a

Mont. Const. Art. IX, § 1 .................................. 86a

Mont. Code Ann. Tit. 3, Ch. 20 ........................ 87a

Mont. R. App. P. 15. ......................................... 90a

DISTRICT OF MONTANA DOCUMENT

Complaint and Demand for Jury Trial,

Relevant Excerpts (September 23, 2021) ........ 94a

NINTH CIRCUIT DOCUMENTS

Appellees’ Answering Brief, Filed in the Ninth

Circuit, Relevant Excerpts (May 16, 2025) ... 118a

Appellees’ Motion to Certify Determinative

Question of Law to the Montana Supreme

Court (May 16, 2025)..................................... 151a

Appellees’ Petition for Rehearing En Banc

(March 10, 2026) ............................................. 185a

App.1a

OPINION, U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

(FEBRUARY 24, 2026)

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

JACKSON WELLS, as Personal Representative for

the Estate of Thomas E. Wells, deceased; JUDITH

HEMPHILL, as Personal Representative for the

Estate of Joyce H. Walder, deceased,

Plaintiffs-Appellees,

v.

BNSF RAILWAY COMPANY,

a Delaware corporation,

Defendant-Appellant.

________________________

No. 24-4802

D.C. No. 4:21-cv-00097-BMM

Appeal from the United States District Court for the

District of Montana Brian M. Morris,

Chief District Judge, Presiding

Argued and Submitted

October 21, 2025 Portland, Oregon

Before: Consuelo M. CALLAHAN,

Morgan B. CHRISTEN, and Andrew D. HURWITZ,

Circuit Judges.

App.2a

Opinion by Judge Christen;

Concurrence by Judge Callahan

OPINION

CHRISTEN, Circuit Judge:

From 1922 to 1990, BNSF Railway Company was

required by federal law to transport asbestos-containing vermiculite from the world’s largest vermiculite

mine to its railyard in Libby, Montana, and from there

to destinations nationwide. Thomas Wells and Joyce

Walder were former residents of Libby who developed

mesothelioma from asbestos exposure. Their estates

asserted negligence and strict liability claims against

BNSF arising from its transportation of vermiculite

and sought compensatory and punitive damages.

After a ten-day trial, the jury returned a verdict for

Plaintiffs on their strict liability claims but in favor of

BNSF on Plaintiffs’ negligence claims. The jury did

not award punitive damages.

On appeal, BNSF argues that the common

carrier exception shields it from strict liability. Plaintiffs

counter that BNSF was not acting as a common carrier

when it allowed vermiculite that contained asbestos

to accumulate in its railyard. In the alternative,

Plaintiffs ask us to certify to the Montana Supreme

Court the question whether the common carrier

exception applies to BNSF’s actions.

We conclude that BNSF is protected from strict

liability by the common carrier exception. Plaintiffs’

claims arose from activities BNSF engaged in while

pursuing its statutorily imposed duty as a common

carrier. Separately, we conclude that certification is

unwarranted. We therefore reverse the district court’s

App.3a

judgment and remand with instructions to enter

judgment for BNSF.

I.

A.

Between 1922 and 1990, the world’s largest source

of vermiculite was a mine located approximately seven

miles outside of Libby, Montana. Vermiculite is a

mineral that was commonly used during that period

for fireproof roofing, insulation, and wallpaper.

For the most part, two companies were involved

in the extraction, processing, and shipment of

vermiculite from Libby: W.R. Grace & Company and

BNSF. W.R. Grace extracted vermiculite from a mine

outside of Libby from 1963 to 1990, and processed

raw vermiculite ore to remove impurities. This created

vermiculite concentrate and leftover waste, or tailings.

It is now known that the concentrate contained

asbestos fibers. Processing the vermiculite ore into

concentrate decreased the amount of asbestos in the

material, but the exact extent of this reduction was

contested at trial. By one measure, the raw vermiculite

ore contained up to twenty-six percent asbestos, and

evidence showed that the tailings could contain up to

eighty percent.

BNSF was required by federal law to transport

W.R. Grace’s vermiculite concentrate upon request. 49

U.S.C. § 11101(a). W.R. Grace filled empty railcars

with concentrate at the mine site and sealed them

before BNSF hauled the cars to its Libby railyard. The

railyard spanned approximately twenty acres in the

App.4a

northern downtown area. From the railyard, BNSF

shipped the railcars nationwide.

Initially, W.R. Grace certified on bills of lading

prepared for each railcar that the vermiculite concentrate shipments were not hazardous. The Montana

Department of Environmental Quality reported as

late as 1974 that asbestos was removed by processing

vermiculite ore into concentrate. However, evidence

at trial showed that by 1977, W.R. Grace posted

placards on at least some railcars stating that the

vermiculite concentrate inside contained asbestos. It

was not until decades later, in 2000, that the Environmental Protection Agency (EPA) began an extensive

cleanup in Libby pursuant to the Comprehensive

Environmental Response, Compensation and Liability

Act, 42 U.S.C. § 9601 (CERCLA). United States v.

W.R. Grace & Co., 429 F.3d 1224, 1232 (9th Cir. 2005)

(summarizing the EPA’s response to the “truly extraordinary” situation in Libby as “no mere run-of-themill CERCLA cleanup,” but rather, “a unique removal

action of a size and cost not previously seen”).

At trial, the evidence showed that asbestos-containing vermiculite escaped from railcars during the

regular course of transportation and also during railcar

switching operations in the railyard. The evidence

further demonstrated that vermiculite pervaded

downtown Libby. W.R. Grace stored vermiculite in an

export plant in the downtown area and donated

tailings to spread over a local baseball field to absorb

rainwater. Unaware of the danger, many Libby

residents used vermiculite in a variety of ways in their

homes and on their lawns.

Thomas Wells worked for the Forest Service in

Lincoln County, Montana from June through September

App.5a

and most of November in 1978 and also from July to

August in 1981. Between June to November in 1978,

he lived in a trailer home abutting BNSF’s railyard.

Joyce Walder lived in Libby from 1954 to 1972 and

from 1976 to 1978, then visited periodically through

2009. During her childhood, Walder frequented the

baseball and football fields and the running track near

the railyard. She also walked across the railyard and

swam in the city pool, which was located near the

railyard.

The jury found that Plaintiffs had been exposed

to asbestos. Both Wells and Walder were diagnosed

with mesothelioma, a cancer caused by exposure to

asbestos that affects tissues surrounding the lungs.

See Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 142

& n.4 (2003). Tragically, each died within months

after receiving this diagnosis.

B.

In 2021, the personal representatives of Plaintiffs’

estates filed this action against BNSF in the United

States District Court for the District of Montana,

asserting negligence and strict liability claims.

Two divergent narratives of BNSF’s activities in

Libby emerged. Before trial, BNSF sought summary

judgment on Plaintiffs’ strict liability claims, arguing

that it had acted pursuant to its statutorily imposed

duty as a common carrier when it transported

vermiculite concentrate. Plaintiffs argued that BNSF

had not acted as a common carrier when it stored

“‘reservoirs’ of asbestos and asbestos contaminated

materials at [its] Libby railyard.” The district court

denied BNSF’s motion, reasoning that if Plaintiffs

could establish their allegations at trial, “harbor[ing]

App.6a

a toxic asbestos dump in the Libby railyard” would be

“removed from BNSF’s role as a [common] carrier of

vermiculite.”

A ten-day jury trial commenced in Helena in April

2024. In contrast to their opposition to BNSF’s motion

for summary judgment, Plaintiffs’ opening statement

made no mention of BNSF storing vermiculite or

reservoirs of asbestos on its property. After opening

statements, the district court expressed “serious

questions about the viability of [Plaintiffs’] strict

liability claim,” because its initial understanding that

“the material was . . . stored at the railyard, and then

loaded on railcars” now “seem[ed] to be erroneous.”

As trial progressed, testimony showed that BNSF did

not store vermiculite ore or concentrate at its Libby

railyard, but asbestos dust had nonetheless accumulated on BNSF’s property. At the close of Plaintiffs’

case, the district court questioned whether Plaintiffs’

theory of BNSF’s liability was actually premised on

BNSF’s “inactivity” for failing to properly maintain the

railyard. BNSF moved for judgment as a matter of

law on Plaintiffs’ strict liability claims, again

invoking the common carrier exception. The court

denied the motion, explaining its view that “[n]othing

under BNSF’s duty as a common carrier prevented

[BNSF] from periodically cleaning the railyard, or

from improving its facilities to capture vermiculite dust

for safe disposal.” During closing argument, Plaintiffs’

counsel characterized BNSF’s conduct underlying their

lawsuit as “the condition of [BNSF’s] yard.”

The jury rejected Plaintiffs’ negligence claims

and request for punitive damages, but it found in

Plaintiffs’ favor on their strict liability claims and

awarded $4,000,000 in compensatory damages to

App.7a

each estate. The district court denied BNSF’s renewed

motion for judgment as a matter of law on Plaintiffs’

strict liability claims, and BNSF timely appealed.

This lawsuit is one of many concerning asbestos

exposure in Libby. Initially, many individuals who

claimed to have been exposed to asbestos in the

Libby area sued W.R. Grace, but in 2001, W.R. Grace

declared bankruptcy and placed $2.9 billion in an

irrevocable trust to settle all present and future

claims. According to BNSF, after W.R. Grace declared

bankruptcy, hundreds of lawsuits were filed against

BNSF. See, e.g., BNSF Ry. Co. v. Eddy, 459 P.3d 857

(Mont. 2020); Gallegos v. BNSF Ry. Co., No. 22-68,

2023 WL 8187923 (D. Mont. Nov. 27, 2023). This is

the first such lawsuit to go to trial.1

II.

The district court had jurisdiction to hear Plaintiffs’

claims in this diversity action pursuant to 28 U.S.C.

§ 1332. We have appellate jurisdiction pursuant to 28

U.S.C. § 1291 and review de novo the district court’s

interpretation of state law. Casun Inv., A.G. v. Ponder,

119 F.4th 637, 642 (9th Cir. 2024), cert. denied sub

nom. NVWS Props., LLC v. Casun Inv., A.G., 145 S.

Ct. 1927 (2025).

1 Another has been stayed pending the resolution of this appeal.

See Moe v. BNSF Ry. Co., No. 9:22-cv-00068-DLC, Stay Order,

ECF # 141 (D. Mont. May 1, 2024).

App.8a

III.

A.

Decades ago, Montana adopted §§ 519 and 520 of

the Restatement (Second) of Torts, which outline

strict liability for abnormally dangerous activities.

See Matkovic v. Shell Oil Co., 707 P.2d 2, 4 (Mont.

1985). Section 519 provides:

(1) One who carries on an abnormally

dangerous activity is subject to liability for

harm to the person, land or chattels of

another resulting from the activity, although

he has exercised the utmost care to prevent

the harm. (2) This strict liability is limited to

the kind of harm, the possibility of which

makes the activity abnormally dangerous.

Restatement (Second) of Torts § 519 (A.L.I. 1977).

Section 520 provides six factors to consider when

determining whether an activity is abnormally

dangerous:

(a) existence of a high degree of risk of some

harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it

will be great;

(c)

inability to eliminate the risk by the exercise

of reasonable care;

(d) extent to which the activity is not a matter of

common usage;

(e) inappropriateness of the activity to the place

where it is carried on; and

App.9a

(f)

extent to which its value to the community is

outweighed by its dangerous attributes.

Though a court must consider all factors, all factors

“need not be present” for an activity to qualify as

abnormally dangerous. Covey v. Brishka, 445 P.3d 785,

792 (Mont. 2019).

Recently, in another case against BNSF for

personal injuries caused by exposure to asbestos in

Libby, the Montana Supreme Court also adopted

§ 521 of the Second Restatement, which provides for

an exception to strict liability for common carriers. See

Eddy, 459 P.3d at 873–74. The common carrier

exception bars the imposition of “strict liability for

abnormally dangerous activities . . . if the activity is

carried on in pursuance of a public duty imposed upon

the actor . . . as a common carrier.” Restatement

(Second) of Torts § 521 (A.L.I. 1977). This exception

addresses concerns that “it would be unjust to subject

a common carrier to strict liability for any danger done

by a material the carrier is required to transport by

law.” Eddy, 459 P.3d at 873. Accordingly, Montana law

applies the exception to abnormally dangerous activities “carried on in pursuance of a public duty” when

“that public duty is imposed on the actor as a common

carrier.” Id. at 874.

B.

We begin from the premise that BNSF’s

transportation of vermiculite concentrate was an

abnormally dangerous activity. The district court

ruled that BNSF was precluded from arguing otherwise

by the Montana Supreme Court’s decision in Eddy,

459 P.3d at 868–73, and BNSF does not challenge that

ruling on appeal. Rather, BNSF argues only that the

App.10a

common carrier exception exempts it from strict

liability. BNSF contends that the district court

construed the common carrier exception too narrowly,

interpreting it to apply only to “public-duty-imposed

common carrier activities.” More specifically, BNSF

argues that the district court erred by ruling that it

was ineligible for the common carrier exception on the

grounds that BNSF did not act pursuant to a public

duty when it failed to maintain its railyard and tracks

where asbestos collected.

We agree that the district court interpreted the

scope of the common carrier exception too narrowly.2

2 The concurrence addresses preemption of the strict liability

claims by the Interstate Commerce Commission Termination Act

of 1995 (ICCTA), Pub. L. 104-88, 109 Stat. 803, an issue we do

not reach because we can resolve this appeal on the common

carrier exception and the scope of ICCTA’s potential preemption

was not adequately briefed. As the concurrence notes, the parties

did not address whether the ICCTA would preempt other state

law claims, such as negligence, because the jury did not find BNSF

negligent and Plaintiffs did not appeal that adverse finding. At

oral argument before our court, BNSF equivocated on the scope

of the ICCTA’s proposed preemption; specifically, whether it

might apply to negligence. The common carrier exception provides

a simpler ground for resolution of this appeal and does not

implicate the same federalism concerns that attend preemption

of state laws of general applicability. See Wyeth v. Levine, 555

U.S. 555, 565 (2009); Bates v. Dow Agrosciences LLC, 544 U.S.

431, 449 (2005); see also Moore v. Trader Joe’s Co., 4 F.4th 874,

880 (9th Cir. 2021) (affirming dismissal of state law claims on

the basis that the complaint failed to state a claim and declining

to reach federal preemption). By declining to reach preemption,

we adhere to the principle of judicial restraint that “if it is not

necessary to decide more, it is necessary not to decide more.” Morse

v. Frederick, 551 U.S. 393, 431 (2007) (Breyer, J., concurring in

the judgment in part and dissenting in part) (quoting PDK Labs.,

Inc. v. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir.

App.11a

As adopted by Montana and the vast majority of

states, the exception shields common carriers from

strict liability for harm caused during transport “because common carriers must accept, carry, and deliver

all goods offered to them for transport within the scope

of the operating authority set forth in their permits.”

In re Hanford Nuclear Rsrv. Litig., 534 F.3d 986, 1006

(9th Cir. 2008).3 Unlike private shippers, common

carriers “cannot discriminate against customers or

refuse to accept commodities that may be dangerous

for transport.” Id. Eddy explained that a common

carrier is not strictly liable for dangers inherent in “a

material the carrier is required to transport by law.”

459 P.3d at 873. Eddy also held that as a rail carrier,

BNSF qualifies as a common carrier for the purposes of the common carrier exception. Id. at 874.

The parties do not dispute that the “asbestoscontaminated vermiculite entered the Libby railyard

via BNSF’s transport.” The jury heard testimony that

vermiculite dust fell “along the tracks and within the

railyard” after it escaped from railcars during car

switching operations and during transport along the

2004) (Roberts, J., concurring in part and concurring in judgment)).

3 Eddy recognized that this exception has been broadly adopted.

459 P.3d at 873; see, e.g., Pecan Shoppe of Springfield, Inc. v. TriState Motor Transit Co., 573 S.W.2d 431, 435 (Mo. Ct. App.

1978); Town of East Troy v. Soo L. R.R. Co., 409 F. Supp. 326,

330 (E.D. Wis. 1976); Christ Church Parish v. Cadet Chem.

Corp., 199 A.2d 707, 708 (Conn. Super. Ct. 1964); Albig v. Mun.

Auth. of Westmoreland Cnty., 502 A.2d 658, 663 (Pa. Super. Ct.

1985); Ruiz v. S. Pac. Transp. Co., 638 P.2d 406, 412 (N.M. Ct.

App. 1981); Peneschi v. Nat’l Steel Corp., 295 S.E.2d 1, 5 (W. Va.

1982); Cairl v. St. Paul, 268 N.W.2d 908, 911 (Minn. 1978);

Voelker v. Delmarva Power & Light Co., 727 F. Supp. 991, 994

(D. Md. 1989).

App.12a

railroad. Federal law defines “transportation” broadly to

include “delivery,” “storage,” “handling,” and “services

related to [the] movement” of property. 49 U.S.C.

§ 10102(9). Plaintiffs’ theory of liability thus stems

directly from BNSF’s statutory duty to transport

vermiculite concentrate. See id. at § 11101(a).

Plaintiffs attempt to distinguish the condition of

BNSF’s railyard from BNSF’s role as a common

carrier, because escaped asbestos that accumulated in

BNSF’s railyard was no longer in transit. Plaintiffs

argue that the escaped asbestos constituted an

abnormally dangerous condition on the land for which

BNSF should be strictly liable as a property owner. In

support, Plaintiffs cite Covey, a case in which the

Montana Supreme Court concluded that maintaining

a man-made fishpond on a mountainside was an

abnormally dangerous condition that triggered strict

liability. 445 P.3d at 790–91. This analogy is inapt.

Covey involved the voluntary maintenance of a manmade 4.5-million-gallon fishpond for private purposes,

upslope from other property owners. Id. at 789. The

Covey defendant was held strictly liable after his

“pond breached its banks and . . . [t]he water carried

boulders, trees, and other debris downhill[,] . . . carv[ing]

large channels into the hillside.” Id. In contrast, the

dangerous condition here—accumulated asbestos dust—

arose solely from BNSF’s operation as a common

carrier executing its federally mandated duty to

transport vermiculite. Cf. Anderson v. BNSF, No.

ADV-2008-101, 2010 Mont. Dist. LEXIS 73, at *4

(Mont. Dist. Feb. 2, 2010) (concluding that the common

carrier exception immunized BNSF from strict liability

for diesel fuel stored at BNSF’s railyard that leaked to

App.13a

surrounding property because storing fuel “is an

integral part of its operation as a common carrier”).

The result we reach today is consistent with Town

of East Troy v. Soo Line Railroad Company, 409 F.

Supp. 326, 328 (E.D. Wis. 1976), which the Eddy court

cited with approval. See Eddy, 459 P.3d at 873. Town

of East Troy involved a train that derailed while

transporting hazardous acid. 409 F. Supp. at 328. The

railroad company waited nine days before attempting

to remove acid-contaminated soil from the derailment

site, and that delay allowed the spill to foul the

surrounding community’s groundwater supply. Id. at

330. The plaintiff in Town of East Troy alleged that

the railroad company “knew or should have known”

that it was engaged in an abnormally dangerous

activity by transporting hazardous acid. Id. But the

district court dismissed the claim because it concluded

that the common carrier exception shielded the company from strict liability. Id.; see also Walsh v. Mont.

Rail Link, 2001 ML 1418, 2001 Mont. Dist. LEXIS

3033, at *21–22 (Mont. Dist. May 8, 2001) (holding

that the common carrier exception immunized a rail

company from strict liability for injuries resulting from

toxic chemicals spilled when a train derailed); Griffin

v. Mont. Rail Link, 2000 ML 2438, 2000 Mont. Dist.

LEXIS 1331, *2 (Mont. Dist. Aug. 29, 2000) (same).

This caselaw strongly supports the conclusion

that BNSF is entitled to the protection afforded by the

common carrier exception because it is uncontested that

the asbestos dust that accumulated in BNSF’s railyard

leaked or escaped from rail cars during BNSF’s required

transportation of vermiculite concentrate. The fact

that the dust accumulated gradually along the railroad

tracks and in BNSF’s railyard, rather than spilling

App.14a

abruptly, does not alter our analysis because the

gradual spillage still occurred during BNSF’s shipment

of vermiculite.

In reaching the opposite conclusion, the district

court emphasized that Montana does not apply the

common carrier exception when a common carrier

engages in “abnormally dangerous activit[ies] for ‘its

own purposes’” rather than in “pursuance of a public

duty,” Eddy, 459 P.3d at 875 (quoting Murphy-Fauth

v. BNSF Ry. Co., No. 17-79, 2018 WL 3601235, at *2

(D. Mont. July 27, 2018)).4 The court reasoned that no

public duty obligated BNSF to “maintain[] uncontained asbestos-containing material open air on its

property,” and that BNSF allowed accumulated dust to

remain in the railyard for its own gain because

foregoing maintenance of the yard increased revenue

and prevented transportation delays. The district

court analogized this case to In re East Palestine

Train Derailment, a case decided by the United States

District Court for the Northern District of Ohio in

which a railroad company “transport[ed] over a

million pounds of hazardous chemicals and,” after a

derailment, “intentionally set[] fire to them in a

residential neighborhood.” No. 4:23-cv-0242-BYP, 2024

WL 1096064, at *10 (N.D. Ohio Mar. 13, 2024). Crucial

4 The plaintiff in Murphy-Fauth alleged injury from asbestos

exposure as a result of BNSF’s activities in Libby. See MurphyFauth, 2018 WL 3601235, at *1–2. The plaintiff’s allegations

extended beyond just the transport of vermiculite and included

allegations that “BNSF played a central role in the vermiculite

operations in Libby” by collaborating with W.R. Grace to

“develop[] new uses for vermiculite products and assist[] in

marketing.” See D. Mont. No. 17-cv-00079-BMM-JTJ, Dkt. No.

63 ¶ 23. The district court denied BNSF’s motion to dismiss, but

the parties settled shortly thereafter. Id. at *4.

App.15a

to the East Palestine court’s conclusion that the common

carrier exception did not apply was the fact that, in

responding to the spill, the railroad company “voluntarily undertook activities for [its] own purpose; namely

to release and burn vinyl chloride in order to get the

derailed cars out of the way to start . . . trains running

through East Palestine again to earn revenue.” Id. at

*11. Unlike the situation in East Palestine, here the

district court cited no evidence, and on appeal Plaintiffs point to no evidence, that BNSF aimed to save

money by not cleaning its railyard. Indeed, for

decades, even the Montana Department of Environmental Quality advised that vermiculite concentrate

did not contain asbestos.

The district court adopted Plaintiffs’ characterization of BNSF’s “abnormally dangerous activity” as

“maintain[ing] asbestos on its property.” Plaintiffs

framed BNSF’s conduct as an affirmative act

(“maintaining”), but their theory of strict liability was

actually premised on BNSF’s alleged “fail[ure] to take

measures to prevent toxic dust from collecting upon

and escaping from its property.” That theory, which

assumes that the risk of harm would have been eliminated if BNSF had “adequately clean[ed]” its railyard,

effectively treats Plaintiffs’ strict liability claims as

negligence claims. To be sure, the Montana Supreme

Court has explained that the common carrier exception

would not have shielded BNSF from a negligence

claim, Eddy, 459 P.3d at 874, but the jury expressly

rejected Plaintiffs’ negligence theory and found that

BNSF “exercise[d] reasonable care in its handling of

asbestos.”

App.16a

C.

Plaintiffs chose to file this action in federal court,

but on appeal they urge us to certify to the Montana

Supreme Court the question whether Montana’s common

carrier exception for strict liability encompasses BNSF’s

failure to maintain its railyard.5 We decline to do so.

A federal court sitting in diversity is empowered

“to decide questions of state law.” Abraham v. Corizon

Health, Inc., 985 F.3d 1198, 1202 (9th Cir. 2021).

“However, if state law permits it, we may exercise our

discretion to certify a question to the state’s highest

court.” Murray v. BEJ Minerals, LLC, 924 F.3d 1070,

1071 (9th Cir. 2019) (en banc). The Montana Supreme

Court permits certification of questions of law from

federal courts when “[t]he answer may be determinative of an issue in pending litigation in the certifying

court” and “[t]here is no controlling appellate decision,

constitutional provision, or statute of this State.”

Mont. R. App. P. 15(3).

In deciding whether to certify a question, we

consider “(1) whether the question presents ‘important

public policy ramifications’ yet unresolved by the state

court; (2) whether the issue is new, substantial, and of

broad application; (3) the state court’s caseload; and (4)

5 Specifically, Plaintiffs ask this panel to certify the following

question:

Does Montana’s common carrier exception to strict

liability for an abnormally dangerous activity or condition immunize BNSF from strict liability for harm

caused by asbestos in or on its Libby railyard, when

the prolonged presence of this toxic substance in and

on its Libby railyard was not required by BNSF’s statutory duties as a common carrier?

App.17a

‘the spirit of comity and federalism.’” Murray, 924

F.3d at 1072 (quoting Kremen v. Cohen, 325 F.3d

1035, 1037 (9th Cir. 2003)). Because certification

burdens state courts and the parties and can prolong

litigation, we do not invoke it lightly. Id. Moreover, we

have explained that “[w]hen there is little reason to

doubt the answer to a state-law question, we ought

not outsource our work to a state court.” Bliss Sequoia

Ins. & Risk Advisors, Inc. v. Allied Prop. & Cas. Ins.

Co., 52 F.4th 417, 423 (9th Cir. 2022).

In Eddy, the Montana Supreme Court applied the

common carrier exception to “the manner in which

[BNSF] conducted the transport of vermiculite,”

reasoning that “BNSF is entitled to the common carrier

exception for strict liability imposed as a result of its

transporting of vermiculite, which it was required to

do by law.” Id. at 874. Eddy remanded to the trial

court to determine whether BNSF’s other activities

fell within the scope of the exception. Id. at 875. The

complaint in Eddy alleged that BNSF’s other actions

included “industrial activities” such as disturbance of

asbestos and collaboration with W.R. Grace to

“strategize regarding distribution of the product and

geologic sampling,” as well as other undertakings

“not required of a common carrier.” Eddy, 459 P.3d at

864 & n.1, 873. Eddy leaves little doubt that the

outcome of this case is controlled by the common

carrier exception because Plaintiffs complain about

the deposit of asbestos-containing vermiculite along

the tracks and in the Libby railyard, and the asbestoscontaining vermiculite fell on the tracks and entered

the railyard during the course of BNSF’s transportation

of vermiculite concentrate. In other words, Plaintiffs

attempt to hold BNSF strictly liable “for the manner

App.18a

in which it conducted the transport of vermiculite,”

which the Montana Supreme Court specifically foreclosed in Eddy. Id. at 874.

We therefore conclude that certification is

unwarranted because there is sufficient Montana state

law to answer the question presented. See Syngenta

Seeds, Inc. v. Cnty. of Kauai, 842 F.3d 669, 681 (9th

Cir. 2016). These claims have been pending since 2021

and involve alleged exposure to asbestos dating back

to 1954. See Riordan v. State Farm Mut. Auto. Ins.

Co., 589 F.3d 999, 1009 (9th Cir. 2009) (“[W]e do not

find it necessary to further prolong these proceedings [by certifying questions to the Montana

Supreme Court] where the state law is clear.”).

REVERSED and REMANDED with instructions.

CALLAHAN, J., concurring:

I join the opinion in full because it correctly

concludes that under Montana law the common carrier

exception protects BNSF from Plaintiffs’ strict liability

claims. I write separately to stress that, in my view,

the Interstate Commerce Commission Termination

Act separately preempts Plaintiffs’ strict liability

claims.

I

A

To substantially reform excessive economic regulation of the Nation’s transportation industries,

Congress adopted the Interstate Commerce Commission

Termination Act of 1995 (ICCTA). Pub. L. 104-88, 109

App.19a

Stat. 803. ICCTA grants the Surface Transportation

Board jurisdiction over specific modes and locations

of “transportation by rail carrier.” 49 U.S.C. § 10501(a).

For that transportation and certain related activities,

the Board has exclusive jurisdiction. Id. § 10501(b).

ICCTA also provides a comprehensive remedial scheme

for enforcing regulations of rail transportation, holding

rail carriers liable, and providing remedies to persons

injured by rail carriers. Id. §§ 11701-11707. Remedies

provided by ICCTA “with respect to regulation of rail

transportation are exclusive and preempt the remedies

provided under Federal or State law.” Id. § 10501(b).

We first interpreted ICCTA’s preemptive scope in

City of Auburn v. United States, observing that “[i]t is

difficult to imagine a broader statement of Congress’s

intent to preempt state regulatory authority over

railroad operations.” 154 F.3d 1025, 1030 (9th Cir.

1998) (quoting CSX Transp., Inc. v. Ga Pub. Serv.

Comm’n, 944 F. Supp. 1573 (N.D. Ga. 1996)). There, we

held that ICCTA preempts not only nominal “economic”

regulations but also other regulations that “will in fact

amount to ‘economic regulation.’” Id. at 1031; see also

Or. Coast Scenic R.R., v. Or. Dep’t of State Lands,

841 F.3d 1069, 1076-77 (9th Cir. 2016). We have also

held that ICCTA preemption applies both to laws

targeting railroad operations, City of Auburn, 154

F.3d at 1031, and to laws of general applicability that

would have the “effect of managing or governing rail

transportation,” Ass’n of Am. R.R.s v. S. Coast Air

Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir.

2010).

App.20a

B

Montana, like many states, has adopted Sections

519, 520, and 521 of the Restatement (Second) of

Torts. See Majority Op. at 10-11. Section 519 provides

for strict liability for abnormally dangerous activities;

Section 520 lays out a multifactor test for courts to use

to determine whether an activity should be deemed

abnormally dangerous; and Section 521 grants an

exception to strict liability for abnormally dangerous

activities undertaken by common carriers pursuant to

a public duty. Id.

In 2020, decades after BNSF stopped transporting

vermiculite for W.R. Grace & Company, the Montana

Supreme Court applied Section 520 to hold that

BNSF’s past “handling of asbestos under the facts

presented here constitutes an abnormally dangerous

activity for which BNSF is strictly liable.” BNSF Ry.

Co. v. Eddy, 459 P. 3d 857, 873 (Mont. 2020). The

Montana Supreme Court ruled that BNSF, as a

common carrier, is protected by Section 521 from

“strict liability imposed as a result of its transporting

vermiculite,” but further stated that BNSF could face

strict liability for its asbestos-handling “activities

other than transportation of vermiculite.” Id. at 87475 (emphasis added). The court further noted that

“BNSF may still be found liable under a theory of

ordinary negligence for the manner in which it

conducted the transport of vermiculite ore.” Id. at 874.

In 2021, Plaintiff estates sued BNSF in federal

district court for personal injuries, resulting in death,

caused by BNSF’s handling of vermiculite. Majority

Op. at 7. Plaintiffs’ suit asserted state law causes of

action for both negligence and strict liability. Id.

Plaintiffs premised these claims on the central propo-

App.21a

sition that BNSF failed to prevent toxic vermiculite

residuals from “collecting upon and escaping from” its

Libby, Montana railyard.

In 2024, a jury found for BNSF on Plaintiffs’ negligence claims but found BNSF liable on Plaintiffs’

strict liability claims. Id. at 8-9. In obtaining their

favorable jury verdict on the strict liability claims,

Plaintiffs relied on a fine-grained distinction between

BNSF’s “transportation of vermiculite” and its “other

activities” dealing with vermiculite. The district court

accepted this distinction, rejecting both BNSF’s common

carrier exception argument and ICCTA preemption

argument in BNSF’s renewed motion for judgment as

a matter of law. BNSF also asserted—and the district

court also rejected—an argument that the Hazardous

Materials Transportation Act (HMTA), 49 U.S.C. § 5101

et seq., separately preempts Plaintiffs’ strict liability

claims.1 BNSF timely appealed.2 Majority Op. at 9.

II

We review de novo the district court’s legal conclusion about the scope of ICCTA preemption. Or. Coast

1 HMTA is the Nation’s primary law regulating the transportation

of hazardous materials and seeks “to protect against the risks to

life, property, and the environment that are inherent in the

transportation of hazardous material in intrastate, interstate,

and foreign commerce.” 49 U.S.C. § 5101.

2 Plaintiffs have not appealed the jury’s adverse finding on their

negligence claims. I therefore do not reach the question of

whether ICCTA would preempt Plaintiffs’ attempt to recover

damages from BNSF based on negligence. I also do not address

BNSF’s alternative argument that HMTA preempts Plaintiffs’

strict liability claims.

App.22a

Scenic R.R., 841 F.3d at 1072 (citing In re Korean Air

Lines Co., 642 F.3d 685, 691 n.3 (9th Cir. 2011)).

III

To determine whether ICCTA preempts Plaintiffs’

strict liability claims, we first consider whether “the

activity in question” comes “within the statutory grant

of jurisdiction to the Surface Transportation Board.”

Id.; see 49 U.S.C. § 10501(a). If the Board possesses

jurisdiction, then we next assess whether its jurisdiction is exclusive. Or. Coast Scenic R.R., 841 F.3d at

1073; see 49 U.S.C. § 10501(b). An affirmative answer

to both inquiries follows from the reasoning supporting our unanimous opinion today regarding the

common carrier exception.

BNSF’s handling of vermiculite falls within ICCTA’s

grant of jurisdiction to the Surface Transportation

Board. ICCTA grants jurisdiction to the Board over

particular modes and locations of “transportation by

rail carrier.” 49 U.S.C. § 10501(a). This case concerns

only whether BNSF’s handling of vermiculite counts

as “transportation by rail carrier,” as defined by 49

U.S.C. § 10501(a). Our opinion makes clear that it does.

See Majority Op. at 11-17. In applying the Montana

Supreme Court’s precedential holding that the common

carrier exception protects BNSF from “strict liability

imposed as a result of its transporting vermiculite,”

Eddy, 459 P. 3d at 874, we utilized ICCTA’s definition

of “transportation.” Majority Op. at 13 (citing 49

U.S.C. § 10102(9)). Using ICCTA’s definition, we determined that BNSF’s handling of vermiculite qualifies

as “transportation,” and thus the common carrier

exception protects BNSF from Plaintiffs’ strict liability

App.23a

claims. Id. That conclusion also answers the first

question of the ICCTA preemption analysis.

Further, the Board’s jurisdiction over BNSF’s

transportation of vermiculite is exclusive. 49 U.S.C.

§ 10501(b) makes the Board’s jurisdiction exclusive

over “transportation by rail carriers.” That Section also

expressly states that “the remedies provided under this

part with respect to regulation of rail transportation

are exclusive and preempt remedies provided under

Federal or State law.” Id. Thus, because our opinion

makes clear that BNSF’s handling of vermiculite falls

within ICCTA’s definition of “transportation,” the

Board has exclusive jurisdiction and Section 10501(b)

facially preempts Plaintiffs’ attempt to recover on a

Montana strict liability cause of action. See Majority

Op. at 11-17.

But the preemption analysis does not end there.

Montana’s strict liability law is a common law tort

claim of general applicability, and we have held that

“ICCTA does not preempt state or local laws if they

are laws of general applicability that do not unreasonably interfere with interstate commerce.” Ass’n of Am.

R.R.s, 622 F.3d at 1097. So this case requires determining whether the application of Montana’s strict

liability law to BNSF’s transportation of vermiculite

“may reasonably be said to have the effect of managing

or governing rail transportation,” or instead has only

“a more remote or incidental effect on rail transportation.” Id. at 1097-98 (internal quotation marks

omitted).

Here, applying Montana’s strict liability law to

BNSF’s transportation of vermiculite would have the

effect of managing or governing rail transportation;

App.24a

ICCTA preemption therefore applies. Several related

reasons support this conclusion.

First, allowing strict liability for BNSF’s transportation of vermiculite would impose severe compliance

costs. Recall that in this case, Plaintiffs seek to hold

BNSF strictly liable for all injuries resulting from

BNSF’s failure to use equipment and practices that

would have prevented the release of vermiculite

residuals from its railyard. To ensure future compliance

with this sky-high standard of care, BNSF would have

to adopt a variety of new equipment and practices—

including possibly redesigning its railcars, altering

switching operations in its railyard, purchasing new

equipment, and implementing new training and operating procedures. Adopting these measures would

impose a serious financial burden. And BNSF would

have to implement these onerous compliance measures

despite the fact that under HMTA, vermiculite does

not qualify as a hazardous material warranting federal regulation of its transportation by rail carriers—

even when the vermiculite contains toxic asbestos. See

49 U.S.C. § 5101 et seq.; 49 C.F.R. § 172.102(c)(1)(156)

(stating that “[a]sbestos that is immersed or fixed in

a . . . mineral ore . . . is not subject” to HMTA

regulatory requirements). Plaintiffs’ strict liability

claims, regardless of whether separately preempted

by HMTA, function as regulations akin to those

issued under HMTA authority.

Second, permitting strict liability here would

allow for unpredictable and unfair penalties for noncompliance. Under a strict liability regime, the remedy

provided by Montana law for any harmful release of

vermiculite residuals is damages, as awarded by a jury.

And as the Supreme Court has recognized, “state regu-

App.25a

lation can be . . . effectively exerted through an award

of damages, and the obligation to pay compensation

can be, indeed is designed to be, a potent method of

governing conduct and controlling policy.” Kurns v.

R.R. Friction Prods. Corp., 565 U.S. 625, 637 (2012)

(citation modified). In this case, Plaintiffs’ damage

awards totaled to eight million dollars, not including

additional taxable costs or interest. This suggests the

magnitude of BSNF’s potential exposure in the many

other pending claims against it. See Majority Op. at

9. These damage awards resemble financial penalties

for noncompliance similar to (1) remedies provided by

ICCTA for regulatory violations and for persons

injured by rail carriers, see 49 U.S.C. §§ 11701-11704,

and (2) fees and penalties assessed for noncompliance

with HMTA regulations, see id. §§ 5122-5124.

Third, applying strict liability here can be expected

to increase rates that BNSF and other rail carriers

charge customers. Based on the facts of this case,

liability would show rail carriers that they can face

future liability for transporting materials that are not

considered to be hazardous at the time of transport. So

carriers may reasonably seek to hike rates to account

for the costs and penalties associated with a strict

liability standard for transporting not only vermiculite

but also an unforeseen range of other materials.

In sum, the application of strict liability to BNSF’s

transportation of vermiculite would have tremendous

economic consequences, effectively governing BNSF’s

railroad operations and unreasonably interfering with

interstate commerce. In this regard, Montana’s generally applicable strict liability law appears similar to

state and local regulations that we have previously

held to be preempted by ICCTA. See City of Auburn,

App.26a

154 F.3d at 1027-31 (invalidating county review of the

environmental impact of proposed operations on railway

line); Ass’n of Am. R.R.s, 622 F.3d at 1095-98 (nullifying

local rules “aimed at limiting the air pollution created

by idling trains”); Or. Coast Scenic R.R., 841 F.3d at

1076-77 (enjoining application of Oregon’s “‘removefill law,’ which, among other things, require[d] a state

permit for the removal of any amount of material

from” designated waters).

***

Today we correctly hold that BNSF is entitled to

the common carrier exception to strict liability for its

transportation of vermiculite. Majority Op. at 11-17. I

would further hold that ICCTA preempts Plaintiffs’

attempt to recover damages from BNSF, based on

strict liability under Montana law, for injuries resulting

from BNSF’s transportation of vermiculite.

App.27a

ORDER, U.S. DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

(JULY 15, 2024)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

________________________

JACKSON WELLS, as Personal Representative for

the Estate of THOMAS E. WELLS, deceased; and

JUDITH HEMPHILL, as Personal Representative

for the Estate of JOYCE H. WALDER, deceased,

Plaintiffs,

v.

BNSF RAILWAY COMPANY,

Defendant.

________________________

No. CV-21-97-GF-BMM

Before: Brian M. MORRIS, Chief District Judge,

U.S. District Court.

ORDER

The Clerk of Court is HEREBY ORDERED to

enter Judgment in accordance with the Jury’s verdicts

(Doc. 390); (Doc. 392), dated April 22, 2024, as follows:

1.

The Clerk of Court shall enter Judgment

against BNSF and in favor of Plaintiffs on

App.28a

Plaintiffs’ strict liability claims. The Clerk

shall indicate the jury’s award of compensatory damages as being $8,000,000.00, or

$4,000,000.00 per Plaintiff. The Judgement

shall additionally include taxable costs,

totaling $53,651.10. The Judgment shall

indicate that jury’s award includes postjudgement interest from the date of that

judgment is entered until the date the judgment is paid at a rate of 5.00%, compounded

annually.

2.

The Clerk of Court shall enter Judgement

against Plaintiffs and in favor of BNSF on

Plaintiffs’ negligence claims.

3.

The Clerk of Court shall enter Judgment

against Plaintiffs and in favor of BNSF on

Plaintiffs’ punitive damages claims.

4.

The Clerk of Court is then directed to close

this case.

DATED this 15th Day of July 2024.

/s/ Brian M. Morris

Chief District Judge

U.S. District Court

App.29a

ORDER, U.S. DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

(JULY 11, 2024)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

________________________

JACKSON WELLS, as Personal Representative for

the Estate of THOMAS E. WELLS, deceased; and

JUDITH HEMPHILL, as Personal Representative

for the Estate of JOYCE H. WALDER, deceased,

Plaintiffs,

v.

BNSF RAILWAY COMPANY,

Defendant.

________________________

No. CV-21-97-GF-BMM

Before: Brian M. MORRIS, U.S. District Court,

Chief District Judge.

ORDER

INTRODUCTION

Plaintiffs Jackson Wells, as Personal Representative for the Estate of Thomas E. Wells, deceased, and

Judith Hemphill, as Personal Representative for the

App.30a

Estate of Joyce H. Walder, deceased, (collectively

“Plaintiffs”) filed a motion to enter judgment on May 16,

2024. (Doc. 406.) Defendant Burlington Northern Santa

Fe Railway Company (“BNSF”) opposes Plaintiffs’

motion. (Doc. 414.)

BNSF filed a motion for judgment notwithstanding

the verdict as to Plaintiffs’ strict liability claims on

May 20, 2024. (Doc. 408.) Plaintiffs oppose BNSF’s

motion. (Doc. 419.) The Court conducted a motion

hearing on June 26, 2024. (Doc. 425.) The Court will

consider BNSF’s motion for judgment notwithstanding

the verdict. (Doc. 408.) The Court examines Plaintiffs’

motion to enter judgment (Doc. 406), Plaintiffs’ application of costs (Doc. 404), BNSF’s objection to Plaintiffs’

application of costs (Doc. 405), and BNSF’s motion to

strike response (Doc. 413) in a future order.

FACTUAL AND LEGAL BACKGROUND

The facts remain well-known to the Court and to

the parties and will not be repeated in full here. This

action concerns BNSF’s handling and transport of

vermiculite containing asbestos in Libby, Montana.

The Court conducted a jury trial in this matter from

April 8, 2024, to April 22, 2024. The jury determined

that BNSF’s handling of vermiculite containing

asbestos outside its duties as a common carrier

served as a substantial factor in bringing about the

injuries to Plaintiffs Wells and Walder. (Doc. 390);

(Doc. 392.) The jury determined, however, that BNSF

did not act negligently with respect to Plaintiffs Wells

and Walder. The jury declined also to find that BNSF

had acted maliciously with respect to Plaintiffs Wells

and Walder. The jury awarded Plaintiffs Wells and

App.31a

Walder $4,000,000 each in compensatory damages, for a

total of $8,000,000.

LEGAL STANDARD

Fed R. Civ. P. 50(b) permits a party to file a

renewed motion for judgment as a matter of law and

include an alternative or joint request for a new trial

under Fed. R. Civ. P. 59. “To move for judgement as

a matter of law after a verdict, the movant must have

moved for judgment as a matter of law pre-verdict.”

Andrews v. Dejoy, No. CV-20-11-GF-BMM, 2022 WL

109939, at *1 (D. Mont. Jan. 5, 2022), aff’d sub nom.

Andrews v. Brennan, No. 22-35081, 2023 WL 4637114

(9th Cir. July 20, 2023). The grounds for the renewed

motion for a judgment as a matter of law are “limited

to the grounds asserted in the pre-deliberation Rule

50(a) motion.” E.E.O.C. v. Go Daddy Software, Inc.,

581 F.3d 951, 961 (9th Cir. 2009). A party may not

“raise arguments in its post-trial motion for judgment

as a matter of law under Rule 50(b) that it did not

raise in its pre-verdict Rule 50(a) motion.” Id. (citing

Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th

Cir. 2003)).

Judgment as a matter of law is “proper if the evidence, construed in the light most favorable to the

nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury’s

verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.

2002); Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372

(9th Cir. 1977). “The verdict will be upheld if it is supported by substantial evidence, ‘even if it is also

possible to draw a contrary conclusion.’” First Nat’l

Mortg. Co. v. Fed. Realty Inv. Tr., 631 F.3d 1058,

1067 (9th Cir. 2011) (quoting Pavao, 307 F.3d at 918)).

App.32a

The standard that a party must meet to overturn a

jury’s verdict proves very high. Costa v. Desert Palace,

299 F.3d 838, 859 (9th Cir. 2002). The Court may not

substitute its “view of the evidence for that of the jury”

and the Court may not “make credibility determinations.” Id. (internal quotations omitted). “[T]he court

must draw all reasonable evidentiary inferences in

favor of the non-moving party.” Id.; Gilbrook v. City

of Westminster, 177 F.3d 839, 856 (9th Cir. 1999).

DISCUSSION

I.

BNSF’s motion to alter judgment.

BNSF asserts four grounds in its motion to alter

the judgement: 1) Plaintiffs’ strict liability claim is

preempted by the Interstate Commerce Commission

Termination Act of 1995 (“ICCTA”), the Hazardous

Materials Transportation Act (“HMTA”), and the Federal Railroad Safety Act (“FRSA”); 2) the Court erred

in applying collateral estoppel to determine that BNSF’s

handling of asbestos in Libby, Montana amounted to

an abnormally dangerous activity; 3) the common

carrier exception bars Plaintiffs’ strict liability claims;

and 4) Plaintiffs failed to present sufficient evidence

to support their strict liability claims. (Doc. 409 at 1331.) The Court will discuss separately each of these

grounds.

1. Federal Preemption

A. ICCTA

BNSF asserts that the ICCTA preempts Plaintiffs’

strict liability claims. (Doc. 409 at 13.) The Court

disagrees. The Court denied previously BNSF’s motion

App.33a

for a directed verdict concerning Plaintiffs’ strict

liability claims, writing in pertinent part:

Plaintiffs have offered evidence sufficient to

survive a motion for judgment as a matter of

law that Defendant carried on the abnormally

dangerous activity of maintaining a railyard

or other BNSF property in such a manner

that accumulated asbestos could spread as

airborne particulates into the nearby

community. Compare Eddy at 873 (“BNSF’s

handling of asbestos under the facts presented

here constitutes an abnormally dangerous

activity for which BNSF is strictly liable

under Restatement (Second) of Torts, § 519”).

Plaintiffs have presented evidence that nonparty W.R. Grace loaded BNSF cars and provided asbestos-containing vermiculite that

BNSF subsequently moved onto, around,

and through BNSF property. Plaintiffs have

proffered evidence that vermiculite-containing

BNSF railcars transited and stopped at

BNSF properties in Libby in various states

of disorder and disrepair, such that vermiculite particulates left the exteriors and interiors of railcars to alight on BNSF property.

Plaintiffs have presented evidence that once

the asbestos-containing material landed on

BNSF property, BNSF failed to adequately

clean or quarantine the material, instead

allowing it to disperse in the air in and

around the premises. Nothing under BNSF’s

duty as a common carrier prevented Defendant from periodically cleaning the railyard,

or from improving its facilities to capture

App.34a

vermiculite dust for safe disposal. Defendant

carried on an “abnormally dangerous activity,”

that is, maintaining uncontained asbestoscontaining material [with access to] open air

on its property, caused Plaintiffs harm—

asbestos-exposure-related disease—of the type

that made the activity abnormally dangerous.

(Doc. 373 at 4-5.) The Court additionally viewed as

persuasive the district court’s determination in In re

E. Palestine Train Derailment, No. 4:23CV0242, 2024

U.S. Dist. LEXIS 43837, at *49-50 (N.D. Ohio Mar. 13,

2024), that strict liability was not prohibited where

“[Norfolk Southern] voluntarily undertook activities for

their own purpose; namely, to release and burn vinyl

chloride in order to get the derailed cars out of the way

to start their trains running through East Palestine

[Ohio] again to earn revenue.” (citations omitted.)

The ICCTA provides the Surface Transportation

Board (“STB”) exclusive jurisdiction over the: (1)

“transportation by rail carriers, and the remedies

provided in this part with respect to . . . services, and

facilities of such carriers”; and (2) “construction,

acquisition, [and] operation . . . of facilities.” 49 U.S.C.

§ 10501(b). The ICCTA expressly preempts state law

remedies that relate to the “regulation of rail

transportation”:

Except as otherwise provided in this part,

the remedies provided under this part with

respect to regulation of rail transportation

are exclusive and preempt the remedies provided under Federal or State law.

49 U.S.C. § 10501(b) (emphasis added). The ICCTA

defines “transportation” to encompass physical

App.35a

instrumentalities that are “related to the movement

of passengers or property,” such as a “yard, property,

facility, instrumentality, or equipment” as well as

“services related to that movement, including . . .

storage, handling, and interchange of passengers or

property[.]” 49 U.S.C. § 10102(9).

The Ninth Circuit has determined that the

“ICCTA preempts all state laws that may reasonably

be said to have the effect of managing or governing

rail transportation.” Ass’n of Am. Railroads v. S.

Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097

(9th Cir. 2010). “Where a tort claim would interfere

with ‘rail transportation’ or ‘operation’ of railroad

tracks or facilities, the regulation or claim is expressly

preempted.” Benson v. Union Pacific R. Co., 2008 WL

2946331, at *3 (E.D. Cal. 2008) (quoting City of

Auburn v. United States, 154 F.3d 1025, 1031 (9th Cir.

1998)). The ICCTA also preempts state common law

duties that impact how a railroad operates their lines.

Staley v. BNSF Ry. Co., No. CV 14-136-BLG-SPW, 2015

WL 860802, at *6 (D. Mont. Feb. 27, 2015) (quoting

Friberg v. Kansas City S. Ry Co., 267 F.3d at 439, 444

(5th Cir. 2001.)) “It is difficult to imagine a broader

statement of Congress’s intent to preempt state

regulatory authority over railroad operations.” City of

Auburn, 154 F.3d at 1030 (citation omitted).

The ICCTA does not, however, “preempt state or

local laws if they are laws of general applicability that do

not unreasonably interfere with interstate commerce.”

BNSF Ry. Co. v. California Dep’t of Tax & Fee

Admin., 904 F.3d 755, 760 (9th Cir. 2018) (citation

omitted). The ICCTA “preempts all state laws that

may reasonably be said to have the effect of managing

or governing rail transportation, while permitting the

App.36a

continued application of laws having a more remote or

incidental effect on rail transportation. What matters

is the degree to which the challenged regulation burdens

rail transportation[.]” Id. at 760–61 (quoting Am.

Railroads, 622 F.3d at 1097-98). The Eleventh Circuit

in Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266

F.3d 1324, 1331 (11th Cir. 2001), recognized that

“Congress narrowly tailored the ICCTA preemption

provision to displace only ‘regulation,’ i.e., those state

laws that may reasonably be said to have the effect of

‘manag[ing]’ or ‘govern[ing]’ rail transportation, . . .

while permitting the continued application of laws

having a more remote or incidental effect on rail

transportation.” (alterations in original).

Though not binding, the Court views the Fifth

Circuit’s determination in Guild v. Kansas City

Southern Ry. Co., 541 Fed. Appx. 362 (5th Cir. 2013),

as persuasive. The Fifth Circuit in Guild determined

that the plaintiffs’ negligence claim stemming from

Kansas City Southern Railway Company (“KCSRC”)

alleged damaging of the plaintiffs’ spur track by parking

rail cars with excessive weight was not expressly or

implicitly preempted by the ICCTA. Id. at 367-68. The

Fifth Circuit wrote in pertinent part: “[r]ather, the

effects of state negligence law on rail operations are

merely incidental.” Id. at 367 The Fifth Circuit further

noted that plaintiffs’ negligence claim, as pleaded,

would not “have the effect of unreasonably burdening

or interfering with KCSRC’s operations.” Id. at 368

(emphasis original) (citation omitted.)

The Court views as similarly persuasive the

Tenth Circuit’s determination in Emerson v. Kansas

City Southern Ry. Co., 503 F.3d 1126 (10th Cir. 2007).

Emerson considered whether the ICCTA preempted

App.37a

plaintiff’s state law tort claims arising from KCSRC’s

discarding of used rails and railroad ties, in addition

to KCSRC failing to maintain the condition of a

drainage ditch, thereby resulting in flooding on the

plaintiff’s property. Id. at 1128. The Tenth Circuit

determined that the ICCTA did not expressly preempt

the plaintiffs’ state law claims. Id. at 1132. The Tenth

Circuit wrote in pertinent part, “[w]e do not think that

the plain language of [the ICCTA] can be read to

include the conduct the landowners complaining of

here – discarding old railroad ties into a wastewater

drainage ditch adjacent to the track and otherwise

failing to maintain the ditch. . . . Rather, [these acts]

are possibly tortious acts committed by a landowner

who happened to be a railroad company.” Id. at 1129-30.

The Tenth Circuit further concluded that “a

factual assessment must be made as to whether requiring [KCSRC] to remedy the injury claimed by the

Landowners would have the effect of preventing or

unreasonably interfering with railroad transportation.”

Id. at 1133. The Court recognizes that the Tenth Circuit

remanded Emerson back to the Eastern District of

Oklahoma, and, following a jury trial, judgment was

entered for the railroad defendant. See Revocable Tr.

of Davis v. Kansas City S. Ry. Co., No. CIV-05-331KEW, 2009 WL 3150409, at *1 (E.D. Okla. Sept. 30,

2009).

The Court determines that the ICCTA does not

bar Plaintiffs’ strict liability claims. Plaintiffs’ strict

liability claims concern the presence and accumulation

of asbestos and asbestos-contaminated vermiculite at

the Libby Railyard. Plaintiffs’ strict liability claims,

that alleged that BNSF engaged in an abnormally

dangerous activity through its handling of asbestos in

App.38a

Libby, Montana, represent a law of general applicability

that does not unreasonably interfere with interstate

commerce. See BNSF Ry. Co., 904 F.3d at 760. Strict

liability for carrying out an abnormally dangerous

activity remains a state law claim, as noted by the

Montana Supreme Court in BNSF Ry. Co. v. Eddy,

459 P.3d 857 (Mont. 2020).

The Court recognizes that the definition of

“transportation” for purposes of the ICCTA remains

broad. See 49 U.S.C. § 10102(9). The Court determines,

however, that the accumulation and presence of

asbestos and asbestos-contaminated vermiculite in

the Libby Railyard does not amount to a physical

instrumentality related to the movement of passengers

or property. See id. The Court recognizes that the

Libby Railyard itself may indeed be a physical

instrumentality related to the movement of passengers

or property, and, therefore, the Libby Railyard itself

likely falls within the purview of the ICCTA. The

Court determines, however, that the accumulation of

presence of asbestos-contaminated vermiculite proves

separable from the remainder of the Libby Railyard

because the asbestos-contaminated vermiculite is not

itself property, equipment, or an instrumentality related

to the movement of passengers or property. Cf. id. The

Court further acknowledges the transient nature of

asbestos-contaminated vermiculite, which maintains

the ability to enter the air and travel a considerable

distance when disturbed from the ground. The

remainder of the Libby Railyard, including the tracks,

ballast, buildings, and equipment, do not maintain

the ability to be freely and easily dispersed from the

Libby Railyard and into the Libby, Montana community.

The asbestos and asbestos-contaminated vermiculite

App.39a

do not serve as a permanent or semi-permanent

fixture of the Libby Railyard.

The asbestos and asbestos-contaminated vermiculite prove comparable to the drainage ditch at issue

in Emerson, 503 F.3d at 1132. The Tenth Circuit

determined that “discarding old railroad ties into a

wastewater drainage ditch adjacent to the track and

otherwise failing to maintain the ditch” does not

amount to “transportation” within the meaning of the

ICCTA. Id. The asbestos and asbestos-contaminated

vermiculite here and wastewater and discarded railroad

ties in Emerson, 503 F.3d at 1132, pose danger to

persons and property existing outside the direct

physical instrumentalities related to the movement of

passengers and property.

The Court similarly determines that the ICCTA’s

exclusive jurisdiction over the construction, acquisition,

and operation of facilities does not expressly preempt

Plaintiffs’ strict liability claims. The ICCTA provides

in pertinent part the following: “[e]xcept as otherwise

provided in this part, the remedies provided under

this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided

under Federal or State law.” 49 U.S.C.A. § 10501(b).

Plaintiffs’ strict liability claims admittedly involve the

Libby Railyard, which likely would be classified as a

railroad facility within the meaning of the ICCTA, but

such claims do not amount to a remedy concerning the

regulation of rail transportation. See Florida East

Coast Ry Co., 266 F.3d at 1331 (“Congress narrowly

tailored the ICCTA pre-emption provision to displace

only “regulation,” i.e., those state laws that may reasonably be said to have the effect of “manag[ing]” or

“govern[ing]” rail transportation, Black’s Law Diction-

App.40a

ary 1286 (6th ed.1990), while permitting the continued application of laws having a more remote or

incidental effect on rail transportation.”)

Plaintiffs’ strict liability claims concern the

presence and accumulation of asbestos and asbestoscontaminated vermiculite in the Libby Railyard. Such

claims do not seek to govern the operation of the Libby

Railyard or the use of the Libby Railyard for rail

transportation. The district court in Suchon v. Wis.

Cent., Ltd., No. 04-C-0379-C, 2005 U.S. Dist. LEXIS

4343, at *10 (W.D. Wis. Feb. 23, 2005), as a contrary

example, determined that the ICCTA expressly preempted the plaintiff’s state law nuisance claim where

the railroad defendant would be “restricted in the use of

its property” because the plaintiff’s nuisance claim

would not be “significantly different from allowing the

state to impose restrictions on defendant through

laws and regulations.”

The Ninth Circuit determined in City of Auburn,

154 F.3d at 1031, that the imposition of environmental

permitting regulations on a railroad company by the

plaintiff municipality was preempted by the ICCTA

because such regulations amount to “‘economic regulation’ if the [railroad] carrier is prevented from

constructing, acquiring, operating, abandoning, or

discontinuing a line.” Plaintiffs’ strict liability claims,

by contrast, do not seek to impose zoning requirements

or regulate the land or environmental use of the Libby

Railyard. Plaintiffs’ strict liability claims instead seek to

remedy the hazard posed by BNSF’s abnormally

dangerous activity of handling asbestos and asbestoscontaminated vermiculate in Libby, Montana, including

at the Libby Railyard. This remedy’s effect on rail

transportation, including the operation of facilities,

App.41a

appears negligible. The Court declines to interpret the

ICCTA’s preemptive effect so broadly as to encompass

any potentially tortious conduct by a landowner who

happens to be a railroad company, even if such

conduct may have occurred on or around a facility

within the meaning of the ICCTA. See Emerson, 503

F.3d at 1129-30. The Court concludes that the ICCTA

does not expressly preempt Plaintiffs’ strict liability

claims.

The Court further determines that the ICCTA

does not implicitly preempt Plaintiffs’ strict liability

claims. Plaintiffs’ strict liability claims, stemming from

the presence of vermiculite-contaminated asbestos in

the Libby Railyard, do not have the effect of unreasonably burdening or interfering with BNSF’s railroading

operations. The presence of, or lack thereof, asbestos

and asbestos-contaminated vermiculite in the Libby

Railyard does not impact, interfere with, or otherwise

effect BNSF’s ability to conduct railroad operations

from the Libby Railyard. The Libby Railyard does not

require asbestos-contaminated vermiculite to operate.

Asbestos does not serve as an essential component of

the goods being hauled by BNSF to or from the Libby

Railyard.

The asbestos and asbestos-contaminated vermiculite instead represent an incidental byproduct related

to BNSF’s transportation of vermiculite from Libby,

Montana. To hold BNSF strictly liable for injuries caused

by the presence and buildup of asbestos-contaminated

vermiculite amounts to a tortious act committed by a

landowner who happens to be a railroad company. See

Emerson, 503 F.3d at 1129-30. To hold a landowner

strictly liable for an abnormally dangerous activity

conducted on their property remains a law of general

App.42a

applicability. The Court fails to see how such a claim

for relief unreasonably will interfere with interstate

commerce. See BNSF Ry. Co, 904 F.3d at 760. To

permit Plaintiffs’ strict liability claims in this instance

will not have the effect of managing or governing rail

transportation, but instead will provide a claim for

relief for tortious acts committed by a landowner who

happens to be a railroad. See id. at 760-61.

The Court need not consider Plaintiffs’ argument

that collateral estoppel bars BNSF’s ICCTA preemption

argument. The Court recognizes, however, that BNSF

failed to raise ICCTA preemption at any time during

the pre-trial proceedings. (See Doc. 80 at 2) (“Plaintiffs’

negligence and strict liability tort claims under

Montana common law are preempted, as a matter of

law, by the Hazardous Materials Transportation Act

and the Federal Railroad Safety Act.”); (Doc. 188 at 612). BNSF first raised ICCTA preemption during the

course of trial in its motion for a directed verdict concerning Plaintiffs’ strict liability claims on April 15,

2024. (See Doc. 359 at 15) (“Plaintiffs’ strict liability

claims for alleged asbestos emissions resulting from

BNSF’s operations in its Libby railyard are

preempted by the ICCTA.”)

B. HMTA and FRSA

BNSF asserts that the HMTA and FRSA similarly

preempt Plaintiffs’ strict liability claims. (Doc. 409 at

13.) BNSF failed to raise preemption stemming from

the HMTA and FRSA in its pre-verdict motion for

judgment as a matter of law. (See Doc. 359 at 15-21.)

A party is limited to the grounds raised in a preverdict Fed. R. Civ. P. 50(a) motion when renewing its

motion for a judgment as a matter of law. Go Daddy

App.43a

Software, 581 F.3d at 961. “This requirement exists in

part because it gives the non-moving party an opportunity to correct any alleged deficiencies in evidence

at a time when the non-moving party is still in a

position to correct the problem.” Siqueiros v. Gen.

Motors LLC, 676 F. Supp. 3d 776, 801 (N.D. Cal. 2023)

(citing Freund v. Nycomed Amersham, 347 F.3d 752,

761 (9th Cir. 2003)). The Ninth Circuit strictly construes

the requirement to initially raise grounds in a preverdict Fed. R. Civ. P. 50 motion. See Freund, 347 F.3d

at 761; see also Idaho Golf Partners, Inc. v. TimberStone

Mgmt., LLC., No. 1:14-CV-00233-BLW, 2017 WL

3531481, at *3 (D. Idaho Aug. 17, 2017). The Court

declines to consider BNSF’s HMTA and FRSA arguments that were not raised in BNSF’s pre-verdict

motion.

The Court additionally recognizes that the Court

considered HMTA and FRSA preemption in an earlier

pre-trial motion filed by BNSF. (See Doc. 210 at 33.)

The Court wrote in pertinent part: “[r]egarding the

HMTA, ‘since asbestos immersed in mineral ore–like

the vermiculite in this case–is not a hazardous material,

then the Hazardous Materials Transportation Act has

no regulatory effect.’” (Id. at 40.) (citing MurphyFauth v. BNSF Ry. Co., No. 4:17-cv-0079-BMMJTJ

(D. Mont.) (Doc. 66.); Underwood v. BNSF Ry. Co, No.

4:17-cv-0083-BMMJTJ (D. Mont.) (Doc. 61.); Deason

v. BNSF Ry. Co., No. 4:17-cv-0076-BMM-JTJ. (D.

Mont.) (Doc. 72.)) The Court determined that “the

HMTA does not expressly or impliedly preempt state

law with respect to [plaintiffs’] state law claims.” (Id.)

The Court determined additionally that “[r]egarding

the FRSA, the Court again agrees that ‘Montana state

laws are not inconsistent with the FRSA regulations

App.44a

and are therefore not preempted by the FRSA.’” (Id.

at 41.)

2. Collateral Estoppel

BNSF contends that it is entitled to a new trial

pursuant to Fed. R. Civ. P. 59 because the Court erred

in holding that collateral estoppel from Eddy, 459

P.3d, applies to BNSF’s “handling of asbestos.” (Doc.

409 at 19.) Fed. R. Civ. P. 59(a) provides that “[t]he

court may, on motion, grant a new trial on all or some

of the issues—and to any party—as follows: (A) after

a jury trial, for any reason for which a new trial has

heretofore been granted in an action at law in federal

court . . . .”

BNSF’s contention proves unavailing. The Court

determined previously that BNSF’s handling of asbestos

in Libby, Montana constituted an abnormally

dangerous activity as a matter of law. (Doc. 222 at 515.) BNSF’s argument appears to be an attempt to

relitigate the Court’s prior determination. BNSF fails

to present evidence to warrant such relitigation, and

the Court declines to disturb its prior determination.

The Court properly deemed BNSF to be collaterally

estopped from arguing that its “handling of asbestos”

in Libby, Montana does not constitute an abnormally

dangerous activity for the following reasons: 1) the

issue presented in this action and in Eddy, 459 P.3d

at 873, prove to be the same; 2) the Asbestos Court’s

order, and the Montana Supreme Court’s opinion,

prove to be final judgments on the merits; 3) BNSF is

the same party in both this action and in Eddy, 459

P.3d; and 4) BNSF was provided with a full and fair

opportunity to adjudicate whether its handling of

asbestos in Libby, Montana constituted an abnormally

App.45a

dangerous activity for purposes of strict liability. (Doc.

222 at 5-15.)

3. Common carrier exception

BNSF asserts that the Plaintiffs’ strict liability

claims are barred by the common carrier exception to

common law strict liability as described in the Restatement (Second) of Torts § 521. (Doc. 409 at 24-25.) The

Court ruled previously as follows:

Plaintiffs have presented evidence that once

the asbestos-containing material landed on

BNSF property, BNSF failed to adequately

clean or quarantine the material, instead

allowing it to disperse in the air in and

around the premises. Nothing under BNSF’s

duty as a common carrier prevented Defendant from periodically cleaning the railyard,

or from improving its facilities to capture

vermiculite dust for safe disposal. Defendant

carried on an “abnormally dangerous activity,”

that is, maintaining uncontained asbestoscontaining material open air on its property,

caused Plaintiffs harm—asbestos-exposurerelated disease—of the type that made the

activity abnormally dangerous.

(Doc. 372 at 4-5.) The Court declines to disturb its

prior conclusion, or the jury’s verdict, based on BNSF’s

argument concerning the common carrier exception.

See First Nat’l Mortg. Co., 631 F.3d at 1067 (a jury’s

verdict “will be upheld if it supported by substantial

evidence, even if it is also possible to draw a contrary

conclusion.”) (citation omitted.)

App.46a

4. Sufficiency of Evidence

BNSF lastly asserts that Plaintiffs presented

insufficient evidence in support of their strict liability

claims. (Doc. 409 at 25-33.) BNSF specifically claims

the following: 1) inaction cannot predicate strict

liability vis a vie an abnormally dangerous activity; 2)

BNSF’s activities were carried on in pursuance of a

public duty, and are, therefore, exempt from strict

liability; and 3) the Libby Railyard was an integral

part of BNSF’s railroading operations and fall within

the common carrier exception. (Id.) BNSF’s arguments

fail to disturb the jury’s determination that BNSF

stands strictly liable for injuries caused to the Plaintiffs.

A. Inactivity

With regard to inactivity, BNSF asserts that

Plaintiffs’ strict liability claims are based on inactivity,

namely, the alleged failure to clean and remove

asbestos from the Libby Railyard. (Doc. 409 at 25.)

The Court recognizes that BNSF failed to raise this

argument in its written motion for a judgment as a

matter of law regarding Plaintiffs’ strict liability claims.

(See Doc. 358.); (Doc. 359.) The grounds for the

renewed motion for a judgment as a matter of law are

“limited to the grounds asserted in the pre-deliberation Rule 50(a) motion.” E.E.O.C., 581 F.3d at 961.

The Court declines to consider BNSF’s inactivity

argument.

Even if the Court were to reach the merits of

BNSF’s inactivity argument, BNSF’s assertion proves

unsupported. It is true, admittedly, that counsel for

BNSF briefly referenced the argument that inactivity

may not be the basis for a strict liability claim during

the course of trial. (See Doc. 422-1 at 3) (“Similarly, an

App.47a

inaction in a railyard, if that’s really what their theory

is here, is not and cannot be an abnormally dangerous

activity.”) BNSF’s inactivity argument, while referenced after the close of Plaintiffs’ case in chief, was

not made as an independent basis for granting BNSF’s

pre-verdict judgment as a matter of law motion concerning Plaintiffs’ strict liability claims. BNSF referenced such argument when rebutting Plaintiffs’ counsel’s description of the basis for Plaintiffs’ strict liability

claim. The Court, in denying BNSF’s pre-verdict judgment as a matter of law motion, wrote in pertinent

part: “Defendant [BNSF] carried on an “abnormally

dangerous activity,” that is, maintaining uncontained

asbestos-containing material open air on its property,

caused Plaintiffs harm—asbestos-exposure-related

disease—of the type that made the activity abnormally

dangerous.” (Doc. 373 at 5.)

BNSF’s attempt to classify the maintenance of

asbestos and asbestos-contaminated vermiculite in

the Libby Railyard as inactivity proves unpersuasive.

The asbestos and asbestos-contaminated vermiculite

arrived at the Libby Railyard via BNSF’s railroading

operation at the Libby, Montana vermiculite mine.

This condition did not naturally exist or occur without

impetus or activity from BNSF. BNSF transported

asbestos and asbestos-contaminated vermiculite from

the Libby, Montana vermiculite mine to and through the

Libby Railyard. Asbestos and asbestos-contaminated

vermiculite entered the Libby Railyard via BNSF’s

transport and remained in the Libby Railyard subject

to being disturbed and scattered into the air, blowing

into the Libby, Montana town and community. The

Court disagrees that BNSF’s activities in maintaining

the Libby Railyard in such a condition amount to

App.48a

inactivity and denies BNSF’s motion on inactivity

grounds.

B. Common Carrier Exception

BNSF contends additionally that the common

carrier exception applies to Plaintiffs’ strict liability

claims because its operation of the Libby Railyard

proves “necessary and inseparable from its public duty

as a common carrier.” (Doc. 409 at 30.) The Court

declines to adopt such an expansive interpretation.

The Court previously recognized that “[t]he Montana

Supreme Court adopted Restatement (Second) of

Torts, § 521, which provides, ‘the rules as to strict

liability for abnormally dangerous activities do not

apply if the activity is carried on in pursuance of a

public duty imposed upon the actor as a public officer

or employee or as a common carrier.’ Eddy, 459 P.3d

at 873.” (Doc. 222 at 15.) The Court further noted,

however, that the Montana Supreme Court in Eddy,

459 P.3d at 875, determined that Ҥ 521 does not apply

to ‘other activities’ in which BNSF engages not pursuant to its statutory duties.” (Id. at 15-16.)

The Court’s previous order in this action discussed

the common carrier exception in substantial detail:

“[t]he alleged presence of “reservoirs” of asbestos and

asbestos contaminated materials at the Libby railyard

appears to stand a step removed from BNSF’s role as

a carrier of vermiculite.” (Id. at 16-17.) The Court further wrote:

BNSF contends that the common carrier

exception “reach[es] into leasing, construction,

oversight, management, and operations of

facilities at the industry location that

intersects with the railroad transportation

App.49a

line where the goods are collected for transportation.” (Doc. 70 at 16.) BNSF asserts

that the Libby railyard was necessary and

inseparable from its public duty as a

common carrier. (Id. at 17); (Doc. 84 at 20.)

BNSF’s proposed approach would render

§§ 519-520 redundant. No room would remain

to impose strict liability for an abnormally

dangerous activity if a common carrier were

involved in any way if § 521 were read to

encompass all aspects of a carrier’s operations,

including leasing, construction, management,

and facility operations.

(Id. at 18.)

Plaintiffs presented evidence at trial that the

Libby Railyard contained a dangerous concentration

of asbestos and asbestos-contaminated vermiculite

that maintained the ability to escape from the Libby

Railyard and travel into the Libby, Montana

community. Plaintiffs further presented evidence that

the Plaintiffs’ deaths were caused by mesothelioma,

and that the Plaintiffs’ lungs contained Libby amphibole

asbestos fibers, an asbestos fiber unique to Libby,

Montana. The jury, after hearing evidence of the

Plaintiffs’ deaths, the presence of asbestos and asbestoscontaminated vermiculite, and the condition of the

Libby Railyard, determined that BNSF stands strictly

liable for Plaintiffs’ injuries. The jury’s conclusion

proves reasonable, and the Court declines to disturb

the jury’s conclusions. See Pavao, 307 F.3d at 918; see

also Kay, 548 F.2d at 1372.

BNSF’s common carrier argument, similar to its

argument presented in pretrial proceedings, likely

would result in the common carrier exception rendering

App.50a

redundant strict liability stemming from an abnormally

dangerous activity when the defendant serves as a

common carrier. (See Doc. 222 at 18.) The Court

remains mindful that the Montana Supreme Court, in

adopting the common carrier exception, likely

intended the common carrier exception to be construed

narrowly. See Eddy, 459 P.3d at 875 (“[t]hus, BNSF’s

activities other than transportation of vermiculite are

not protected by the common carrier exception.”) The

Court declines to disturb the jury’s verdict based on

this rationale.

II. BNSF’s motion for a new trial.

BSNF argues finally that it is entitled to a new

trial because the Court erred in determining that

collateral estoppel prevented BNSF from arguing that

its handling of asbestos in Libby, Montana did not

amount to an abnormally dangerous activity. (Doc.

409 at 19-21.) Fed. R. Civ. P. 59(a)(1)(A) permits a

court to “grant a new trial . . . after a jury trial, for any

reason for which a new trial has heretofore been

granted in an action at law in federal court.” The

Court is “bound by those grounds that have been

historically recognized.” Zhang v. Am. Gem Seafoods,

Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). “Historically

recognized grounds include, but are not limited to,

claims ‘that the verdict is against the weight of the

evidence, that the damages are excessive, or that, for

other reasons, the trial was not fair to the party

moving.’” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729

(9th Cir. 2007) (quoting Montgomery Ward & Co. v.

Duncan, 311 U.S. 243, 251 (1940)).

The Ninth Circuit has determined that “[t]he

trial court may grant a new trial only if the verdict is

contrary to the clear weight of the evidence, is based

App.51a

upon false or perjurious evidence, or to prevent a

miscarriage of justice.” Id. (quoting Passantino v.

Johnson & Johnson Consumer Prods., 212 F.3d 493,

510 n.15 (9th Cir. 2000)). In considering a motion for

a new trial, the Court “is not required to view the trial

evidence in the light most favorable to the verdict.

Instead, the district court can weigh the evidence and

assess the credibility of the witnesses.” Experience

Hendrix L.L.C. v. Hendrixlicensing.com Ltd., 762 F.3d

829, 842 (9th Cir. 2014).

The Court determines that BNSF was properly

collaterally estopped from arguing that its handling of

asbestos in Libby, Montana did not amount to an

abnormally dangerous activity, based on the analysis

presented above. The Court determination forecloses

BNSF’s argument for a new trial based on alleged

misapplication of collateral estoppel. The Court finds

no evidence or argument supports the granting of a

new trial, and denies BNSF’s motion.

ORDER

Accordingly, IT IS ORDERED:

1.

BNSF’s motion for judgment notwithstanding

the verdict as to Plaintiffs’ strict liability

claims (Doc. 408) is DENIED.

DATED this 11th Day of July 2024.

/s/ Brian M. Morris

Chief District Judge

U.S. District Court

App.52a

SPECIAL VERDICT FOR PLAINTIFF WELLS

(APRIL 22, 2024)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

________________________

JACKSON WELLS, as Personal Representative for

the Estate of THOMAS E. WELLS, deceased; and

JUDITH HEMPHILL, as Personal Representative

for the Estate of JOYCE H. WALDER, deceased,

Plaintiffs,

v.

BNSF RAILWAY COMPANY,

Defendant.

________________________

No. CV-21-97-GF-BMM

SPECIAL VERDICT FORM

(PLAINTIFF WELLS)

INSTRUCTIONS: You must unanimously agree with

the answer to each question below. Answer the

questions in this form in numerical order unless

the form otherwise directs you to skip questions.

Your presiding juror should sign and date the

form at the bottom when you have reached a

verdict. Please complete both verdict forms.

App.53a

STEP 1

Question 1: Did Plaintiff Wells prove by a

preponderance of the evidence that BNSF’s handling

of vermiculite containing asbestos outside its duties

as a common carrier was a substantial factor in

bringing about the injuries of Plaintiff Wells?

Answer:  Yes

STEP 2

Question 2: Did BNSF fail to exercise reasonable

care in its handling of asbestos and breach its duty of

care to Plaintiff Wells?

Answer:  No

Question 3: Did BNSF’s failure to exercise reasonable care in its handling of asbestos constitute a

substantial factor in bringing about the injuries of

Plaintiff Wells?

Answer:  No

STEP 3

ONLY ANSWER THIS QUESTION IF YOU HAVE

ANSWERED “YES” TO QUESTION 1 OR

QUESTION 3.

Question 4: What is the total dollar amount, if

any, necessary to reasonably compensate Plaintiff

Wells fully and fairly for his injuries and damages?

Answer: $4,000,000,00.

STEP 4

Question 5: Do you find, by clear and convincing

evidence, that BNSF had knowledge of facts or inten-

App.54a

tionally disregarded facts that created a high

probability of injury to Plaintiff Wells?

Answer:  No

Question 6: Do you find, by clear and convincing

evidence, that BNSF deliberately proceeded to act in

conscious or intentional disregard of the high

probability of injury to Plaintiff Wells?

Answer:  No

Question 7: Do you find, by clear and convincing

evidence, that BNSF deliberately proceeded to act

with indifference to the high probability of injury to

Plaintiff Wells?

Answer:  No

Please sign this Special Verdict Form and return

it to the Bailiff.

DATED this 22 day of April, 2024.

◼◼◼◼◼◼◼◼◼◼◼

Jury Foreperson

App.55a

SPECIAL VERDICT FOR PLAINTIFF WALDER

(APRIL 22, 2024)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

________________________

JACKSON WELLS, as Personal Representative for

the Estate of THOMAS E. WELLS, deceased; and

JUDITH HEMPHILL, as Personal Representative

for the Estate of JOYCE H. WALDER, deceased,

Plaintiffs,

v.

BNSF RAILWAY COMPANY,

Defendant.

________________________

No. CV-21-97-GF-BMM

SPECIAL VERDICT FORM

(PLAINTIFF WALDER)

INSTRUCTIONS: You must unanimously agree

with the answer to each question below. Answer

the questions in this form in numerical order

unless the form otherwise directs you to skip

questions. Your presiding juror should sign and

date the form at the bottom when you have

reached a verdict. Please complete both verdict

forms.

App.56a

STEP 1

Question 1: Did Plaintiff Walder prove by a

preponderance of the evidence that BNSF’s handling

of vermiculite containing asbestos outside its duties

as a common carrier was a substantial factor in

bringing about the injuries of Plaintiff Walder?

Answer:  Yes

STEP 2

Question 2: Did BNSF fail to exercise reasonable

care in its handling of asbestos and breach its duty of

care to Plaintiff Walder?

Answer:  No

Question 3: Did BNSF’s failure to exercise reasonable care in its handling of asbestos constitute a

substantial factor in bringing about the injuries of

Plaintiff Walder?

Answer:  No

STEP 3

ONLY ANSWER THIS QUESTION IF YOU HAVE

ANSWERED “YES” TO QUESTION 1 OR

QUESTION 3.

Question 4: What is the total dollar amount, if

any, necessary to reasonably compensate Plaintiff

Walder fully and fairly for her injuries and damages?

Answer: $4,000,000.00

STEP 4

Question 5: Do you find, by clear and convincing

evidence, that BNSF had knowledge of facts or inten-

App.57a

tionally disregarded facts that created a high probability of injury to Plaintiff Walder?

Answer:  No

Question 6: Do you find, by clear and convincing

evidence, that BNSF deliberately proceeded to act in

conscious or intentional disregard of the high

probability of injury to Plaintiff Walder?

Answer:  No

Question 7: Do you find, by clear and convincing

evidence, that BNSF deliberately proceeded to act

with indifference to the high probability of injury to

Plaintiff Walder?

Answer:  No

Please sign this Special Verdict Form and return

it to the Bailiff.

DATED this 22 day of April, 2024.

◼◼◼◼◼◼◼◼◼◼◼

Jury Foreperson

App.58a

ORDER, U.S. DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

(OCTOBER 16, 2023)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

________________________

JACKSON WELLS, as Personal Representative for

the Estate of THOMAS E. WELLS, deceased; and

JUDITH HEMPHILL, as Personal Representative

for the Estate of JOYCE H. WALDER, deceased,

Plaintiffs,

v.

BNSF RAILWAY COMPANY, a Delaware

corporation, ROBINSON INSULATION COMPANY,

a Montana Corporation for profit, GROGAN

ROBINSON LUMBER COMPANY,

a Montana corporation for profit, et al.,

Defendants.

________________________

No. CV-21-97-GF-BMM

Before: Brian M. MORRIS, U.S. District Court,

Chief District Judge.

App.59a

ORDER

INTRODUCTION

Jackson Wells, as personal representative for the

Estate of Thomas E. Wells, and Judith Hemphill, as

personal representative for the estate of Joyce H.

Walder (collectively “Plaintiffs”) filed a motion for

summary judgment on February 2, 2023, concerning

the limited scope of the common carrier defense to

Burlington Northern Santa Fe Railway Company’s

(“BNSF”) abnormally dangerous activity. (Doc. 57.)

BNSF opposes this motion. (Doc. 70.) BNSF filed a

motion for partial summary judgment on March 27,

2023. (Doc. 83.) Plaintiffs oppose this motion. (Doc.

170.)

The Court previously dismissed Plaintiffs’ claims

against Robinson Insulation and Grogan Robinson

Lumber. (Doc. 42.) BNSF is the only defendant

remaining. (See id.) The Court granted Plaintiffs’

motion for summary judgment regarding BNSF’s

nonparty affirmative defenses. (Doc. 210.) The Court

denied BNSF’s motion for summary judgment regarding federal preemption. (Id.) Numerous evidentiary

motions remain outstanding. (See Doc. 91); (Doc. 94);

(Doc. 97); (Doc. 103); (Doc. 109); (Doc. 113); (Doc. 116);

(Doc. 120); (Doc. 131); (Doc. 138); (Doc. 146); (Doc. 149.)

The Court will address Plaintiffs’ motion for summary

judgment concerning the limited scope of the common

carrier defense to BNSF’s abnormally dangerous

activity. (See Doc. 57.) The Court also will address

BNSF’s motion for partial summary judgment. (See

Doc. 83.) The Court will address the remaining

motions by separate orders.

App.60a

FACTUAL AND LEGAL BACKGROUND

Vermiculite ore containing high concentrations of

amphibole asbestos was intensively mined, processed,

and shipped from Libby, Montana between 1923 and

1994. (Doc. 15 at 4.) Vermiculite mining and transport

operations resulted in the accumulation of significant

asbestos contamination in and around Libby, including

airborne asbestos contamination. (Id.) BNSF’s railyard

in downtown Libby served as the hub of the railroad

company’s vermiculite business. Plaintiffs allege BNSF

transported crushed vermiculite ore, loaded into open

rail cars from the vermiculite mine and along BNSF’s

“Libby Logger” line, to BNSF’s railyard in downtown

Libby. (Doc. 1 at 7-11.) Plaintiffs claim that BNSF

transported between 193 million and four billion

pounds of asbestos between 1925 and 1981, moving up

to 105,000 pounds of asbestos per day into downtown

Libby in the late 1960s and 1970s, and up to 126,000

pounds of asbestos per day through the 1980s. (Doc.

15 at 6.)

Plaintiffs allege that BNSF’s activities caused

Wells and Walder to be exposed to extraordinarily

high levels of asbestos in or near Libby. (See Doc. 1.)

Plaintiffs allege that their exposure resulted, in

significant part, from BNSF’s negligent operation of

its Libby loading facility, its Libby railyard, and its

transportation of asbestos-contaminated vermiculite

between its loading facility and railyard. (Id. at 10-13.)

Plaintiffs allege that a layer of asbestos-contaminated

dust regularly coated the loading facility and the loaded

rail cars. (Id.) Plaintiffs allege that BNSF’s train cars

released visible clouds of contaminated dust as they

traveled from BNSF’s loading facility to the Libby

railyard. (Doc. 1 at 4-5.)

App.61a

Plaintiffs claim that BNSF exposed Libby residents

by failing to contain the dust or otherwise prevent it from

blowing through Libby’s downtown and surrounding

neighborhoods. Plaintiffs allege that some of BNSF’s

activities in the Libby vermiculite industry extended

beyond its role as a common carrier that simply

transported required goods. Plaintiffs also claim that

BNSF knew of the dangers of asbestos exposure by at

least the 1940s, but failed to control the risk of the

asbestos dust that regularly accumulated at the Libby

railyard. (Doc. 15 at 9.)

Plaintiffs claim that Wells’s asbestos exposures

allegedly occurred while he lived adjacent to the Libby

railyard. (Doc. 54 at 8.) Plaintiffs allege that Walder’s

exposures occurred when she lived in downtown Libby

and regularly walked along BNSF’s tracks and through

the Libby railyard. (Id.)

LEGAL STANDARD

Summary judgment proves appropriate when

“the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Material facts are those which may affect the outcome

of the case. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). A genuine material fact dispute requires sufficient evidence for a reasonable jury to

return a verdict for the nonmoving party. Id.

The movant bears the initial burden of establishing

the basis for its motion and identifying those portions of

“the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett,

App.62a

477 U.S. 317, 323 (1986). The summary judgment

inquiry requires examining the evidence in the light

most favorable to the nonmovant. Once the movant

has met this initial burden, however, the party

opposing the motion “may not rest upon the mere allegations or denials of [their] pleading, but . . . must set

forth specific facts showing that there is a genuine

issue for trial.” Id.

DISCUSSION

I.

Plaintiffs’ motion for summary judgment

concerning the limited scope of the common

carrier defense to BNSF’s abnormally

dangerous activity.

Plaintiffs’ motion for summary judgment concerning the limited scope of the common carrier

defense to BNSF’s abnormally dangerous activity and

BNSF’s motion for partial summary judgment are

largely duplicative. (See Doc. 57); (Doc. 70); (Doc. 83);

(Doc. 89); (Doc. 170); (Doc. 189.) The Court will discuss

the motions together. The Court first will discuss

whether collateral estoppel requires that the Court rule,

as a matter of law, that BNSF’s activities concerning

asbestos handling in Libby were abnormally dangerous.

The Court then will address the applicability of the

Restatement (Second) of Torts § 521’s common carrier

exception to BNSF’s activities in Libby.

a. Whether collateral estoppel requires that

the Court hold, as a matter of law, that

BNSF’s handling of asbestos in Libby,

Montana was abnormally dangerous.

Plaintiffs ask that the Court rule, as a matter of

law, that BNSF’s handling of asbestos at the Libby

App.63a

railyard resulted in an abnormally dangerous condition

for which BNSF stands strictly liable. (Doc. 60 at 28.);

(Doc. 170 at 13.) Plaintiffs allege that the doctrine of

collateral estoppel, or issue preclusion, prevents BNSF

from challenging whether its handling of asbestos

constituted an abnormally dangerous activity. (Doc.

89 at 3-4.); (Doc. 170 at 4.)

State law determines whether a prior state court

judgment should be entitled to collateral estoppel. See

Dodd v. Hood River County, 136 F.3d 1219, 1225 (9th

Cir. 1998). Collateral estoppel “bars the reopening of an

issue that has been litigated and resolved in a prior

suit.” Victory Ins. Co. v. Downing, 532 P.3d 850, 855

(Mont. 2023). Collateral estoppel requires that four

elements be substantiated: 1) the issue decided in the

prior adjudication must be identical to the issue raised

in the action in question; 2) there must be a final judgment on the merits in the prior adjudication; 3) the

party against whom preclusion is now asserted must

be a party or in privity with a party to the prior adjudication; and 4) the party against whom preclusion is

now asserted must have been afforded a full and fair

opportunity to litigate the issue which may be barred.

McDaniel v. State, 208 P.3d 817, 825 (Mont. 2009).

The Court will consider separately each collateral

estoppel element.

i. Issue identity

The Court compares the pleadings, evidence, and

circumstances surrounding the two actions to determine whether the issue decided in a prior adjudication

is identical to the issue raised in the present case. Id.

at 826 (citations omitted). “[T]he bar that arises from

collateral estoppel extends to all questions essential

App.64a

to the judgment and actively determined by the prior

valid judgment.” Id. (citing Baltrusch v. Baltrusch, 130

P.3d 1267, 1276 (Mont. 2006)). Collateral estoppel prevents relitigation of “determinative facts which were

actually or necessarily decided in a prior action.” Id.

The “identity of the issues is the most critical

element . . . the fact that each action arises from the

same transaction does not mean that each involve the

same issues.” Stanley L. & Carolyn M. Watkins Tr. v.

Lacosta, 92 P.3d 620, 626 (Mont. 2004).

BNSF argues that the Montana Supreme Court’s

decision in BNSF Ry. Co. v. Eddy, 459 P.3d 857 (Mont.

2020), addressed different issues. (Doc. 70 at 4); (Doc.

84 at 4-5.) BNSF claims that the Asbestos Court did

not explicitly state that BNSF’s activities in Libby,

Montana were abnormally dangerous. (Doc. 70 at 4-5.);

(Doc. 84 at 4.) BNSF asserts that neither the Asbestos

Court, nor the Montana Supreme Court, determined

whether BNSF’s alleged harboring of asbestos in the

Libby railyard constituted an abnormally dangerous

activity. (Doc. 70. at 6); (Doc. 84 at 5-6.) BNSF attempts

to distinguish Eddy on the grounds that this case

addresses whether BNSF engaged in an “abnormally

dangerous activity when it allegedly ‘harbored’ an

‘open-air repository for asbestos’ in the Libby railyard.”

(Doc. 189 at 4) (citations omitted.)

Eddy addressed legal issues identical to the

issues raised in this case. Eddy addressed whether the

Asbestos Court erred in concluding that BNSF’s

handling of asbestos constituted an abnormally

dangerous activity. 459 P.3d at 868. The Asbestos Court

determined that BNSF had engaged in an abnormally

dangerous activity. (See Doc. 58-12 at 12.) The Asbestos

Court analyzed the six factors set out in Restatement

App.65a

(Second) of Torts § 520: 1) existence of a high degree

of risk of some harm to the person, land or chattels of

others; 2) likelihood that the harm resulting from it

will be caused; 3) inability to eliminate the risk by the

exercise of care; 4) extent to which the activity is not

a matter of common usage; 5) inappropriateness of the

activity to the place where it is carried out; and 6)

extent to which its value to the community is outweighed by its dangerous attributes. (See id. at 9.)

The Asbestos Court concluded that the existence

of a high degree of risk, the likelihood that the harm

that results will be great, the extent to which the

activity is not a matter of common usage, the inappropriateness of the activity to the place where it was

carried out, and the extent to which its value to the

community is outweighed by its dangerous attributes

all weighed in favor of finding that BNSF’s activities

in Libby were abnormally dangerous. (Id. at 12-13.)

The Asbestos Court ruled that BNSF stands strictly

liable “to these Plaintiffs for engaging in an abnormally

dangerous activity vis-à-vis its operations in Libby,

Montana.” (Id. at 13.) The Montana Supreme Court

affirmed the Asbestos Court’s reasoning: “we conclude

BNSF’s handling of asbestos under the facts presented

here constitutes an abnormally dangerous activity for

which BNSF is strictly liable under Restatement

(Second) of Torts, § 519.” Eddy, 459 P.3d at 873.

Plaintiffs similarly raise the issue of whether

BNSF’s handling of asbestos in the Libby railyard

constitutes an abnormally dangerous activity for purposes of strict liability. BNSF contends that this issue

differs from the issue in Eddy. BNSF notes, however,

that the Montana Supreme Court concluded that

BNSF was entitled to the common carrier exception

App.66a

to strict liability, pursuant to § 521, for its transportation of vermiculite. BNSF’s argument places the

cart before the horse. The Montana Supreme Court first

determined in Eddy that BNSF’s handling of asbestos

constituted an abnormally dangerous activity for

which BNSF is strictly liable. 459 P.3d at 873. The

Montana Supreme Court determined that BNSF could

be entitled to § 521’s common carrier exception for its

transportation of vermiculite only after having determined that BNSF’s handling of asbestos constituted

an abnormally dangerous activity. Id. at 874 (emphasis

added).

BNSF’s attempt to distinguish the Asbestos

Court’s holding falls short. (See Doc. 58-12.) The Libby

railyard operated between 1923 and 1994, a fact

common to the multitude of asbestos exposure cases

originating in Libby, Montana. BNSF’s operation of

the Libby railyard as an open-air vermiculite loading

and storage facility allegedly caused the asbestos

exposure. (See Doc. 1 at 10-13.) Admittedly, the alleged

asbestos exposure may have occurred in a variety of

forms and through a variety of activities. This difference fails to change the fact that BNSF’s asbestos

handling and storage practices in and around the

Libby railyard played a significant role in the alleged

asbestos exposure. The nexus between BNSF and the

harm caused, the continued presence of asbestos

contaminated vermiculate at the Libby railyard, and

the resulting asbestos exposure, remains the same in

Eddy and here.

BNSF additionally seeks to distinguish the claims

at issue from Eddy because “the current Plaintiffs

allege from the outset of the lawsuit in their Complaint

that BNSF ‘harbored an abnormally dangerous

App.67a

condition at its downtown Libby railyard by

maintaining a reservoir of asbestos contaminated

material . . . and failing to take measures to prevent

toxic dust from collecting upon and escaping from its

property.’” (Doc. 67 at 6.) BNSF contends the Plaintiffs

allege an issue not contemplated in Eddy and seek to

cabin too narrowly the facts presented in Eddy. (Id.)

BNSF’s argument misstates the Montana Supreme

Court’s ruling.

The Montana Supreme Court determined that

“BNSF’s handling of asbestos under the facts presented

here constitutes an abnormally dangerous activity for

which BNSF is strictly liable under Restatement

(Second) of Torts, § 519.” Eddy, 459 P.3d at 873. The

handling of asbestos in Eddy included “the transport

of asbestos-containing vermiculite, the spillage of

asbestos containing material along BNSF’s tracks and

in its railyard, and the continued disruption of the

built-up spilled asbestos by BNSF’s trains and

workers.” Id. at 864. Eddy encompasses the facts here

based on the direct nexus between the spillage of

asbestos contaminated material by BNSF and the

accumulation of such spilled material into “reservoirs”

of asbestos contaminated material at the Libby railyard.

(See Doc. 1 at 14.) The material in Eddy, the asbestos

contaminated material, remains the same material

alleged to be present here, and it arrived at the Libby

railyard in the same manner. The facts differ only in

the following ways: 1) the state of the asbestos laden

vermiculite; 2) whether the vermiculite was being

spilled onto the ground at the Libby railyard; and 3)

whether the vermiculite had been spilled and was

present and accumulated on the ground at and around

App.68a

the Libby railyard. These facts present a difference

without distinction.

The pleadings in Eddy raised identical issues.

Plaintiffs Barnes, Braaten, and Flores, as representatives of the consolidated litigation before the Asbestos

Court, alleged asbestos exposure stemming from the

Libby railyard. (Doc. 90-7.) Plaintiff Barnes alleged

exposure when riding his bike through piles of

vermiculite in the downtown Libby railyard. (Id. at 3.)

Barnes also alleged exposure when walking along the

railroad tracks at the Libby railyard while bird

hunting. (Id.) Plaintiff Braaten alleged exposure when

playing along the railroad tracks in and around the

downtown Libby railyard. (Id. at 4.) Plaintiff Flores

alleged exposure from activities around the Libby

railyard, including working at the Libby Care Center,

attending baseball games, and using recreational

facilities in the area surrounding the Libby railyard.

(Id. at 5.)

Plaintiffs similarly allege asbestos exposure as a

consequence of being in close proximity to the Libby

railyard. (Doc. 1 at 3.) Plaintiff Wells alleges that

exposure occurred when he lived approximately onequarter mile from the railroad (See Doc. 59 at 4.)

Plaintiff Wells alleges that further exposure occurred

during the summer of 1978 when he lived in a trailer

home abutting the Libby railyard. (See id.) Plaintiff

Walder alleges that exposure occurred when, as a

child, she would walk on the railroad tracks to get from

her home to the ball field near the Libby railyard. (See

id. at 9.) Plaintiff Walder further alleges that exposure

occurred when she spent time near the Libby

railyard while running track in middle and high

school and frequenting the municipal baseball fields

App.69a

to watch her brothers play baseball and to recreate.

(See id. at 7.) Plaintiffs further allege that dust containing asbestos would drift through the Libby

community and would be blown through Libby during

periods of high winds. (Id. at 6.) The Libby railyard,

and repeated close proximity thereto, presents a

common issue raised in the pleadings in Eddy and the

pleadings here.

ii. Final judgment

The Court will “look to see if [an issue] was actually litigated and adjudged as shown on the face of the

judgment.” McDaniel, 208 P.3d at 825 (citations omitted). “It is widely recognized that the finality requirement is less stringent for issue preclusion that for

claim preclusion.” Baltrusch, 130 P.3d at 1274 (citation

omitted). In deciding whether to give preclusive effect

to issues resolved in a judgment or order not yet

entered as final, courts consider four factors: “1)

whether the prior decision was adequately deliberated

and firm and not avowedly tentative; 2) whether the

parties were fully heard; 3) whether the court supported its decision with a reasoned opinion; and 4)

whether the court’s prior decision was subject to

appeal or was in fact reviewed on appeal.” Id. (citing

Restatement (Second) of Judgments, § 12).

The Asbestos Court’s determination that BNSF

had engaged in an abnormally dangerous activity in

Libby, Montana, was adequately deliberated and not

avowedly tentative. The 24-page ruling contains

extensive factual background and procedural history

discussion. (See Doc. 58-12.) The Asbestos Court

considered the plaintiff’s claims in the third amended

complaint and BNSF’s answer in which it raised 15

App.70a

affirmative defenses. (Id. at 2.) The Asbestos Court individually analyzed the § 520 factors. (See id.) The

Asbestos Court’s well-reasoned order considered the

arguments advanced by both parties and relevant

facts underlying those arguments. (See id.)

The parties were heard fully on the issue of

whether BNSF’s activities were abnormally dangerous.

The Asbestos Court conducted two hearings, one on

December 11, 2018, and a second on January 7, 2019.

(See Doc. 90-5); (Doc. 90-9.) The Montana Supreme

Court reviewed the issue of whether BNSF’s handling

of asbestos constituted an abnormally dangerous

activity in Eddy. 459 P.3d. The Montana Supreme

Court affirmed the Asbestos Court’s ruling and determined that “BNSF’s handling of asbestos under the

facts presented here constitutes an abnormally

dangerous activity for which BNSF is strictly liable

under Restatement (Second) of Torts, § 519.” Id. at

873.

iii.

Party or party in privity

The application of issue preclusion to a party that

was not a party to the prior proceeding conflicts with

the “deep-rooted historic tradition that everyone

should have his own day in court.” Taylor v. Sturgell,

553 U.S. 880, 892–93 (2008) (internal citations and

quotations omitted). BNSF was a party in Eddy. 459

P.3d. This element of collateral estoppel has been met.

iv. Full and fair opportunity

adjudicate the claim

to

The burden rests on the party attempting to

defeat the application of collateral estoppel to establish

the absence of a full and fair opportunity to litigate.

App.71a

Baltrusch, 130 P.3d at 1274. BNSF fails to offer evidence that it was denied a full and fair opportunity to

litigate the issue of whether its handling of asbestos was

abnormally dangerous in Eddy and the underlying

Asbestos Court case. See 459 P.3d. This element of

collateral estoppel has been met.

Plaintiffs have met their burden in demonstrating

that the issue of BNSF’s handling of asbestos is

identical to the issue raised in Eddy. 459 P.3d at 873.

Plaintiffs have also met their burden in demonstrating

that Eddy is to be given preclusive effect. Plaintiffs

have further met their burden in demonstrating that

BNSF was a party in Eddy. BNSF failed to meet its

burden in demonstrating that it did not have a full

and fair opportunity to litigate the issue of whether its

handling of asbestos in Libby was abnormally dangerous. BNSF is collaterally estopped from arguing that is

handling of asbestos in Libby was not abnormally

dangerous.

b. Whether BNSF is limited in its use of § 521

to support its common carrier defense to

strict liability.

Federal courts exercising diversity and alienage

jurisdiction must apply the substantive law of the

state in which they are located. Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938). The Montana

Supreme Court adopted Restatement (Second) of

Torts, § 521, which provides, “the rules as to strict

liability for abnormally dangerous activities do not

apply if the activity is carried on in pursuance of a

public duty imposed upon the actor as a public officer

or employee or as a common carrier.” Eddy, 459 P.3d

at 873. The Montana Supreme Court determined that

App.72a

§ 521 does not provide complete immunity, but rather

serves as a shield against strict liability while still

allowing plaintiffs to allege and pursue general negligence claims against defendants. Id. at 874 (citations

omitted). The common carrier exception applies if “(1)

the activity is carried on in pursuance of a public duty

and (2) that public duty is imposed on the actor as a

common carrier.” Id. at 874.

The Montana Supreme Court recognized in Eddy

that BNSF serves as a common carrier of vermiculite,

and, as such, § 521’s common carrier exception applies.

Id. The Montana Supreme Court noted, however, that

§ 521 does not apply to “other activities” in which BNSF

engages not pursuant to its statutory duties. Id. at

875. The Montana Supreme Court cited to MurphyFauth v. BNSF Ry. Co., Case No. CV-17-79-GF-BMMJTJ, 2018 WL 3601235, at *2 (D. Mont. July 27, 2018),

in noting that the common carrier exception “does not

apply when an entity engages in abnormally dangerous

activity for ‘its own purposes.’” Eddy, 459 P.3d at 875.

The Asbestos Court has not yet determined which

of BNSF’s activities in Libby, if any, fall into the category of “other activities” outside § 521. Relatively few

cases address the application of § 521 to similar

factual circumstances. BNSF cites to Anderson v.

BNSF Railway Co., 2010 Mont. Dist. LEXIS 73, as a

point of comparison. The Montana state district court

in Anderson denied summary judgment to the plaintiffs on their claim that strict liability applied to

injuries arising from BNSF’s storage of diesel fuel on

its property. Id. at *9. The Montana court concluded

that BNSF’s storage of diesel fuel on its property “is

an integral part of its operation as a common carrier,

[and] is protected from strict liability.” Id.

App.73a

Diesel fuel inherently implicates BNSF’s duties

as a common carrier, as diesel fuel powers the

locomotives that BNSF uses in its role as a carrier. Id.

at *4. The storage of asbestos contaminated materials,

in contrast, does not appear inherently connected

and essential to BNSF’s role as a common carrier. The

alleged presence of “reservoirs” of asbestos and

asbestos contaminated materials at the Libby railyard

appears to stand a step removed from BNSF’s role as

a carrier of vermiculite. Nothing appears to have

directly required BNSF to store asbestos and asbestos

contaminated materials at the Libby railyard to

fulfill its role as a carrier of vermiculite.

BNSF cites to Griffin v. Montana Rail Link, 2000

ML 2438, *8 (D. Mont. 2000), as an example of § 521

being applied to the “transportation and storage” of

hazardous materials. (Doc. 84 at 26.) Griffin addressed

the leak of chlorine gas due to a train derailment. Id.

at * 12. The hazardous material exposure occurred

while Montana Rail Link directly operated as a

common carrier. Id. The alleged presence of asbestos

contaminated materials at the Libby railyard, in

contrast, did not result directly from BNSF operating

as a common carrier. The record remains unclear as

to the scope of BNSF’s storage of the materials at the

Libby railyard and what circumstances dictated

BNSF’s storage of the materials. The Court anticipates

resolution of those factual disputes through further

development of the record.

The Court notes that federal law provides, in

pertinent part, that “[a] rail carrier providing transportation or service . . . shall provide the transportation or

service on reasonable request.” 49 U.S.C. § 11101. As

defined in federal law, “transportation” includes

App.74a

“services related to [the movement of passengers or

property or both by rail], including receipt, delivery,

elevation, transfer in transit, refrigeration, icing,

ventilation, storage, handling, and interchange of

passengers and property.” 49 U.S.C § 10102(9)(b).

Montana law provides, in relevant part, that “[a]

common carrier shall, if able to do so, accept and carry

whatever is offered to the carrier, at a reasonable time

and price, of a kind that the carrier undertakes or is

accustomed to carry.” Mont. Code Ann. § 69-11-403

(Repealed April 19, 2023.)

BNSF contends that the common carrier exception

“reach[es] into leasing, construction, oversight,

management, and operations of facilities at the industry

location that intersects with the railroad transportation

line where the goods are collected for transportation.”

(Doc. 70 at 16.) BNSF asserts that the Libby railyard

was necessary and inseparable from its public duty as

a common carrier. (Id. at 17); (Doc. 84 at 20.) BNSF’s

proposed approach would render §§ 519-520 redundant.

No room would remain to impose strict liability for an

abnormally dangerous activity if a common carrier

were involved in any way if § 521 were read to encompass all aspects of a carrier’s operations, including

leasing, construction, management, and facility

operations. Strong policy arguments admittedly

caution against the imposition of strict liability in the

context of common carriers.

The Court recognizes that common carriers are

tasked with transportation upon reasonable request.

See 49 U.S.C. § 11101; Griffin, 2000 ML 2438 at *11

(“[T]here is a clear public need to provide nation-wide

transportation for commonly used materials regardless

of the characteristics of such materials.”) (“[T]he

App.75a

common carrier exception to strict liability for activities

involving the transportation of hazardous materials is

intended to resolve the public policy conflict based on

sound public policy that outweighs public policy reasons

for imposing strict liability.”); Eddy, 459 P.3d at 873

(“[I]t would be unjust to subject a common carrier to

strict liability for any danger done by a material the

carrier is required to transport by the law.”); see also

Walsh v. Mont. Rail Link, 2001 Mont. Dist. LEXIS

3033.

The Montana Supreme Court intended for § 521’s

common carrier exception to be construed narrowly.

See Eddy, 459 P.3d at 875. The Montana Supreme

Court noted that “any other activity BNSF engaged in

that was not undertaken pursuant to its statutory

duty, but alleged to have caused injuries to Plaintiffs,

is not protected from strict liability.” Id. The application

of § 521 to BNSF’s transportation of vermiculite must

balance the need to protect individuals and communities

from dangerous activities against the public policy to

provide and protect the transportation of materials

throughout the country as mandated by law. The logic

of Chavez v. S. Pac. Transp. Co., 413 F. Supp. 1203

(E.D. Cal., May 12, 1976), proves persuasive.

In Chavez, eighteen boxcars loaded with bombs

being hauled under a contract with the Department of

the Navy exploded in Southern Pacific Transportation Company’s Antelope Yard in Roseville, California.

Id. at 1203. The California District Court applied

strict liability because “[t]he victims of [abnormally

dangerous] activity are defenseless. Due to the very

nature of the activity, the losses suffered as a result of

such activity are likely to be substantial—an ‘overwhelming misfortune to the person injured.’” Id. at

App.76a

1209. BNSF similarly stands in the better position

have prevented, avoided, or mitigated the injury caused

by the alleged presence of asbestos-contaminated

materials at the Libby railyard. The Court balances

the essential transport of materials via common carrier

against the need to provide redress for those in the

worst position to avoid the risk of abnormally dangerous

activity. This balance leads the Court to determine

that § 521 applies to BNSF’s transport of vermiculite,

but does not apply to activities undertaken by BNSF

outside its statutory duties as a common carrier.

Eddy, 459 P.3d at 875.

Plaintiffs claim BNSF harbored a toxic asbestos

dump in the Libby railyard and was not required to do

so to fulfill its role as a carrier of vermiculite. (Doc. 60

at 21.) Plaintiffs further allege that BNSF failed to

control the asbestos hazard for decades. (Doc. 170 at

8.). BNSF disputes Plaintiffs’ characterization of the

Libby railyard as a toxic “open-air repository for

asbestos.” (Doc. 189 at 3) (citations omitted). BNSF

cites to scientific sampling studies done at and around

the Libby railyard which it claims demonstrates that a

“reservoir of asbestos” did not exist. (Doc. 84 at 22-24.)

A genuine dispute exists as to BNSF’s practices at the

Libby railyard and the presence of asbestos and

asbestos contaminated materials therein. A genuine

dispute also exists as to the scope of BNSF’s activities that fall within the auspice of BNSF’s transport

of vermiculite. The Court endeavors to develop the

factual record to determine which of BNSF’s activities

fall outside its duties as a common carrier transporting vermiculite.

BNSF additionally claims that it cannot be held

strictly liable for the alleged accumulation, maintenance,

App.77a

or collection of asbestos at the Libby railyard when

such accumulation, maintenance, or collection was

not deliberate or intentional. (Doc. 84 at 21-22.) BNSF

asserts that, even assuming Plaintiffs’ allegations are

true, Plaintiffs accuse BNSF of “inactivity” rather

than “other activity” not covered by § 521. (Doc. 189 at

13.) Plaintiffs point to Restatement (Second) § 519,

which provides that, “[t]the liability stated in this

Section is not based on any intent of the defendant to

do harm to the plaintiff.” (Doc. 89 at 14.)

BNSF’s contention fails. Strict liability under

§ 519 “arises out of the abnormal danger of the

activity itself, and the risk that it creates, of harm to

those in the vicinity. It is founded upon a policy of the

law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors,

the responsibility of relieving against that harm when

it does in fact occur.” Restatement (Second) of Torts

§ 519, comment d. The Montana Supreme Court determined in Eddy that BNSF’s handling of asbestos

constitutes an abnormally dangerous activity for

which BNSF stands strictly liable under § 519. 459

P.3d at 873. The Montana Supreme Court’s ruling in

Eddy collaterally estopps BNSF from arguing against

the application of strict liability for its handling of

asbestos in and around the Libby railyard. Development of the record will eventually determine which

statutory duties, if any, required BNSF to store and

handle asbestos at the Libby railyard and would be

subject to § 521’s immunity from strict liability pursuant to the common carrier defense.

App.78a

II. BNSF’s Motion for Partial Summary Judgment.

BNSF’s motion for partial summary judgment

raises the same issues and relies on the same or substantially similar facts as BNSF’s response to Plaintiffs’ motion for summary judgment concerning the

limited scope of the common carrier defense to BNSF’s

abnormally dangerous activity. (See, e.g., Doc. 60); (Doc.

70); (Doc. 83); (Doc. 89); (Doc. 170); (Doc. 189.) BNSF’s

alleged facts and arguments fail to meet the standard

of showing that no genuine dispute of material facts

exists concerning Plaintiffs’ strict liability claim.

Those arguments also fail to show that BNSF is

entitled to judgment as a matter of law concerning

Plaintiffs’ strict liability claim. See Fed. R. Civ. P.

56(a). BNSF fails to meet its burden as the moving

party for its motion for partial summary judgment.

ORDER

Accordingly, IT IS ORDERED:

1.

Plaintiffs’ motion for summary judgment concerning whether BNSF’s handling of asbestos

in Libby, Montana constituted an abnormally

dangerous activity (Doc. 57) is GRANTED IN

PART. The Montana Supreme Court’s decision in Eddy collaterally estopps BNSF from

arguing that its handling of asbestos in

Libby did not constitute an abnormally

dangerous activity. Plaintiffs’ motion for

summary judgment concerning the scope of

the common carrier defense to BNSF’s

abnormally dangerous activity (Doc. 57) is

DENIED IN PART. Further development of

the record will determine what portion or

App.79a

portions of BNSF’s handling of asbestos, if

any, falls within BNSF’s statutory duty to

transport vermiculite and is subject to

§ 521’s common carrier doctrine.

2.

BNSF’s Motion for Partial Summary Judgment is DENIED.

DATED this 16th day of October, 2023.

/s/ Brian M. Morris

Chief District Judge

U.S. District Court

App.80a

ORDER DENYING PETITION FOR

REHEARING EN BANC, U.S. COURT OF

APPEALS FOR THE NINTH CIRCUIT

(APRIL 7, 2026)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

JACKSON WELLS, as Personal Representative for

the Estate of Thomas E. Wells, deceased; JUDITH

HEMPHILL, as Personal Representative for the

Estate of Joyce H. Walder, deceased,

Plaintiffs-Appellees,

v.

BNSF RAILWAY COMPANY,

a Delaware corporation,

Defendant-Appellant.

________________________

No. 24-4802

D.C. No. 4:21-cv-00097-BMM

District of Montana, Great Falls

Before: CALLAHAN, CHRISTEN, and HURWITZ,

Circuit Judges.

Judges Callahan and Christen voted to deny the

petition for rehearing en banc, and Judge Hurwitz so

recommended. The full court has been advised of the

petition for rehearing en banc, and no judge of the

court has requested a vote on the petition.

App.81a

The petition for rehearing en banc (Dkt. No. 60)

is DENIED.

App.82a

ORDER ESTABLISHING

THE ASBESTOS CLAIMS COURT

AND CONSOLIDATING CASES,

SUPREME COURT OF MONTANA,

NO. AC 17-0694, IN RE ASBESTOS LITIGATION

(NOVEMBER 28, 2017)

IN THE SUPREME COURT OF

THE STATE OF MONTANA

________________________

IN RE ASBESTOS LITIGATION,

Consolidated Cases.

________________________

Cause No. AC 17-0694

Before: MIKE MCGRATH, Chief Justice,

Michael E. WHEAT, Dirk M. SANDEFUR, James

JEREMIAH SHEA, BETH BAKER, LAURIE

MCKINNON, JIM RICE, Justices.

ORDER ESTABLISHING

THE ASBESTOS CLAIMS COURT AND

CONSOLIDATING CASES

In the aftermath of the W.R. Grace federal

bankruptcy proceedings, the Court Administrator for

the State of Montana Judicial Branch has identified

at least 540 pending asbestos claim cases in the district courts. Considering that and other circumstances,

this Court has determined there exists sufficient need

to implement the provisions of the Asbestos Claims

Court Act codified at §§ 3-20-101 through-105, MCA.

App.83a

In particular, the Court has considered the need of all

parties to have asbestos-related claims timely

resolved, the extraordinary complexity and cost of

these cases, and the enormous detrimental impact on

the resources of Montana district courts if required to

litigate these cases on an individual basis.

ACCORDINGLY, THE COURT HEREBY ESTABLISHES THE ASBESTOS CLAIMS COURT. District

Court Judge Amy Eddy is appointed as the Asbestos

Claims Judge, for purposes of pretrial proceedings only.

The Court Administrator will appoint a Clerk for the

Asbestos Claims Court.

Filing through Montana Courts E-Filing is

mandatory for all filings with the Asbestos Claims

Court. Filings in this matter will be facilitated by the

case management system of the Clerk of the Montana

Supreme Court. All filings with the Asbestos Claims

Court are considered filings in a separate court and

are to be accessed through and maintained by the

Clerk of the Asbestos Claims Court and the office of

Court Administrator, and are not part of the Montana

Supreme Court caseload or the responsibility of the

Clerk of the Montana Supreme Court, although the

file stamp of that office will display on documents.

Pursuant to the authority granted by the Asbestos

Claims Court Act and M. R. Civ. P. 42, the cases

involving asbestos-related claims identified on Exhibit

A attached hereto are hereby consolidated into the

above-captioned matter for pretrial purposes only. As

consolidation is for pretrial purposes only, no right of

judicial substitution exists under § 3-1-804, MCA.

Should any individual case ultimately proceed to trial,

it will be tried in the county and before the district

court having jurisdiction at the time of consolidation,

App.84a

unless the Legislature fully funds the operation of the

Asbestos Claims Court. If the Asbestos Claims Court

is fully funded by the Legislature, then all provisions

of the Asbestos Claims Court Act may be implemented

at that time.

Within 30 days of the date of this Order, each

attorney for one or more parties in any of the cases

listed on Exhibit A, attached hereto, is directed to efile a notice of appearance in the Asbestos Claims

Court. In the notice of appearance, counsel must list

the county and cause number of each case in which

that counsel is appearing. In addition, counsel must

provide a “lead party” name to be used by the

Asbestos Claims Court for the entire set of cases in

which that attorney represents a party—for example,

“Smith et al. v. W.R. Grace.”

In addition, any attorney who represents a party

in a case filed in a Montana district court involving an

asbestos-related claim and not listed in Exhibit A is

directed to file, within 30 days of the date of this

Order, a notice of appearance in the Asbestos Claims

Court. In the notice of appearance, counsel must list

the county and cause number of the case in which that

counsel is appearing. In addition, counsel must provide a “lead party” name to be used by the Asbestos

Claims Court for the entire set of cases in which that

attorney represents a party for example, “Smith et al.

v. W.R. Grace.”

With the exception of the notices of appearances

referenced above and service of process and filing of

the pleadings identified in M. R. Civ. P. 7(a), all further action in the cases identified on Exhibit A,

attached hereto, is STAYED pending further ruling by

the Asbestos Claims Judge.

App.85a

The Clerk of the Montana Supreme Court is directed to provide a copy of this Order and the

attached Exhibit A to each attorney listed as counsel

of record in any of the cases identified in Exhibit A.

The Clerk is also directed to provide a copy of this

Order to the Honorable Amy Eddy, to the Court

Administrator’s Office, to each District Judge for the

State of Montana, to each Clerk of District Court for

the State of Montana, to the Montana Secretary of

State, to the Code Commissioner, and to the State Bar

of Montana with the request that this Order be

published on the State Bar’s website and distributed

electronically to the Bar membership.

DATED this 28th day of November, 2017.

/s/ Mike McGrath

Chief Justice

/s/ Michael E. Wheat

/s/ Dirk M. Sandefur

/s/ James Jeremiah Shea

/s/ Beth Baker

/s/ Laurie McKinnon

/s/ Jim Rice

Justices

App.86a

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS AND

JUDICIAL RULE

28 U.S.C. § 1652

State laws as rules of decision

The laws of the several states, except where the

Constitution or treaties of the United States or

Acts of Congress otherwise require or provide,

shall be regarded as rules of decision in civil

actions in the courts of the United States, in

cases where they apply.

Mont. Const. Art. II, § 3

Declaration of Rights

Section 3. Inalienable Rights.

All persons are born free and have certain inalienable rights. They include the right to a clean

and healthful environment and the rights of

pursuing life’s basic necessities, enjoying and

defending their lives and liberties, acquiring,

possessing and protecting property, and seeking

their safety, health and happiness in all lawful

ways. In enjoying these rights, all persons

recognize corresponding responsibilities.

Mont. Const. Art. IX, § 1

Environment and Natural Resources

Section 1. Protection and Improvement.

(1) The state and each person shall maintain and

improve a clean and healthful environment

in Montana for present and future generations.

App.87a

(2) The legislature shall provide for the administration and enforcement of this duty.

(3) The legislature shall provide adequate

remedies for the protection of the environmental life support system from degradation

and provide adequate remedies to prevent

unreasonable depletion and degradation of

natural resources.

Mont. Code Ann. Tit. 3, Ch. 20

Title 3. Judiciary, Courts

Chapter 20. Asbestos Claims Court

3-20-101. Definition.

As used in this part, unless the context requires

otherwise, “asbestos-related claim” means an

action brought for the recovery of monetary

damages for personal injury, wrongful death, loss

or consortium, or other injury arising out of an

asbestos-related disease that is alleged to

result from the mining of vermiculite, the

processing of vermiculite, or the transfer, storage,

installation, or removal of a product containing

vermiculite.

3-20-102. Asbestos Claims Judge

(1) A civil action involving an asbestos-related

claim may be tried by a judge pro tempore or

special master, who must be a member of the

bar of the state, agreed upon in writing by

the parties litigant or their attorneys of

record, appointed by the supreme court as

provided in 3-5-115, and sworn to try the

cause before entering upon the duties in

App.88a

trying the cause. Upon appointment, the

individual must be designated as the asbestos

claims judge. The right to a jury trial is not

waived by the stipulation to and appointment

of the asbestos claims judge.

(2) The asbestos claims judge has the authority

and power of an elected district court judge

in the civil action involving an asbestosrelated claim. All proceedings before the

asbestos claims judge must be conducted in

accordance with the rules of evidence and

procedure governing district courts.

(3) Any order, judgment, or decree made or

rendered in an asbestos-related civil case by

the asbestos claims judge has the same force

and effect as if made or rendered by the district court with the regular judge presiding.

(4) A party stipulating to have an asbestosrelated claim heard by the asbestos claims

judge may not file a motion for substitution

of the judge pursuant to 3-1-804.

(5) All filings relating to an asbestos-related

claim must be filed with the clerk of court in

the judicial district in which the claim arose.

The parties shall provide a copy of each filing

to the asbestos claims judge.

3-20-103. Asbestos Claims Court-Venue-Jury

Pool

(1) The asbestos claims judge may hear an

asbestos-related claim in any venue stipulated

by the parties as provided in 25-2-202 or in

any venue otherwise determined by the

App.89a

asbestos claims judge in accordance with a

stipulation of the parties. In stipulating venue,

the parties shall take into consideration the

availability of courtroom facilities. The asbestos

claims court may prepare a list of available

courtroom facilities for consideration of the

parties.

(2) The pool of prospective jurors for an asbestosrelated claim may be drawn from any

county in accordance with a stipulation of

the parties. The jurors must be drawn, as

provided in 3-15-501 and 3-15-503, from the

jury lists of the counties comprising the jury

pool. The clerk of the district court for the

district in which the trial is conducted shall

notify the prospective jurors.

3-20-104. Operating Expenses-Asbestos Claims

Administration Fund

The asbestos claims judge may employ the

employees that may be required to carry out the

duties under this part. All expenditures of the

asbestos claims judge, including but not limited

to salaries, travel expenses, office rent, office

equipment, and supplies, must be paid out of the

asbestos claims administration fund. The asbestos

claims administration fund is the account in the

state treasury in which the funding for the

asbestos claims court is deposited.

3-20-105. Direct Appeal To Supreme Court

An appeal from a final decision of the asbestos

claims judge must be filed directly with the

supreme court of Montana in the manner provided

App.90a

by law for appeals from the district court in civil

cases.

Mont. R. App. P. 15.

Certification of questions of law.

(1) Definitions. In this rule:

(a) “State” means a State of the United States,

the District of Columbia, the Commonwealth

of Puerto Rico, or any territory or insular

possession subject to the jurisdiction of the

United States.

(b) “Tribe” means a tribe, band, or village of

native Americans which is recognized by federal law or formally acknowledged by a

State.

(2) Power to certify. The supreme court of this State,

on the motion of a party to pending litigation or

its own motion, may certify a question of law to

the highest court of another State, or of a tribe, or

of Canada, a Canadian province or territory,

Mexico, or a Mexican state, or a federal court, if:

(a) The pending litigation involves a question to

be decided under the law of the other jurisdiction;

(b) The answer to the question may be determinative of an issue in the pending litigation;

and

(c) The question is one for which an answer is

not provided by a controlling appellate decision, constitutional provision, or statute of

the other jurisdiction.

App.91a

(3) Power to answer. The supreme court of this State

may answer a question of law certified to it by a

court of the United States or by the highest court

of another State or of a tribe, or of Canada, a

Canadian province or territory, Mexico, or a

Mexican state, if:

(a) The answer may be determinative of an

issue in pending litigation in the certifying

court; and

(b) There is no controlling appellate decision,

constitutional provision, or statute of this

State.

(4) Power to reformulate question. The supreme court

of this State may reformulate a question of law

certified to it.

(5) Certification order, record. The court certifying a

question of law to the supreme court of this State

shall issue a certification order and forward it to

the supreme court of this State. Before

responding to a certified question, the supreme

court of this State may require the certifying

court to deliver all or part of its record to the

supreme court of this State.

(6) Contents of certification order.

(a) A certification order must contain:

(i)

The question of law to be answered;

(ii) The facts relevant to the question,

showing fully the nature of the controversy out of which the question arose;

(iii) A statement acknowledging that the

supreme court of this State, acting as

App.92a

the receiving court, may reformulate the

question; and

(iv) The names and addresses of counsel of

record and parties proceeding without

counsel.

(b) If the parties cannot agree upon a statement

of facts, the certifying court shall determine

the relevant facts and state them as a part of

its certification order.

(7) Notice, response. The supreme court of this State,

acting as a receiving court, shall notify the

certifying court of acceptance or rejection of the

question and, in accordance with notions of

comity and fairness, respond to an accepted

certified question as soon as practicable.

(8) Procedures. After the supreme court of this State

has accepted a certified question, the rules and

statutes governing briefs, arguments, and other

appellate procedures govern proceedings. Procedures for certification from this State to a

receiving court are those provided in the rules

and statutes of the receiving forum.

(9) Opinion-order. The supreme court of this State

shall state in a written opinion the law answering

the certified question or may by order determine

that the certified question was improvidently

accepted. The clerk of the supreme court shall send

copies of the opinion or order to the certifying

court and the parties.

(10) Cost of certification. Fees and costs are the same

as in civil appeals filed with the clerk of the

supreme court of this State and must be equally

App.93a

divided between the parties unless otherwise

ordered by the certifying court.

(11) Severability. If any provision of this rule or its

application to any person or circumstance is held

invalid, the invalidity does not affect other

provisions or applications of this rule which can

be given effect without the invalid provision or

application, and to this end the provisions of this

rule are severable.

(12) Uniformity of application and construction. This

rule shall be applied and construed to effectuate

its general purpose to make uniform law with

respect to the subject of the rule among States

adopting it.

App.94a

COMPLAINT AND DEMAND FOR

JURY TRIAL, RELEVANT EXCERPTS

(SEPTEMBER 23, 2021)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

________________________

JACKSON WELLS, as Personal Representative for

the Estate of THOMAS E. WELLS, deceased; and

JUDITH HEMPHILL, as Personal Representative

for the Estate of JOYCE H. WALDER, deceased,

Plaintiffs,

v.

BNSF RAILWAY COMPANY, a Delaware

corporation, ROBINSON INSULATION COMPANY,

a Montana Corporation for profit, GROGAN

ROBINSON LUMBER COMPANY,

a Montana corporation for profit, and DOES A-Z,

Defendants.

________________________

No. ______________

COMPLAINT AND DEMAND FOR JURY TRIAL

PARTIES, JURISDICTION, AND VENUE

1. Plaintiff Jackson Wells, as Personal Representative for the Estate of Thomas E. Wells, deceased,

is a resident of Sedro-Woolley, Washington. At the time

App.95a

of his death, Thomas E. Wells was a resident of

LaConner, Washington. Plaintiff Judith Hemphill, as

Personal Representative for the Estate of Joyce H.

Walder, deceased, is a resident of Libby, Montana. At

the time of her death, Joyce H. Walder was a resident

of Westminster, California.

2. Defendant BNSF Railway Company (BNSF) is

a corporation organized and existing under the laws

of the State of Delaware and is engaged in interstate

commerce with its headquarters in Fort Worth, Texas.

During the times and activities relevant to this action,

BNSF was engaged in business activities in Montana.

BNSF engaged in conduct that resulted in the accrual

of this tort action in this District and Division.

3. Defendant Robinson Insulation Company

(Robinson Insulation) is or was a Montana business

corporation for profit with its principal place of business in Great Falls, Cascade County, Montana where

Robinson Insulation operated a vermiculite expansion

plant. Robinson Insulation engaged in conduct that

resulted in the accrual of this tort action in this District and Division.

4. Defendant Grogan Robinson Lumber Company

(Grogan Robinson) is or was a Montana business corporation for profit with its principal place of business

in Great Falls, Cascade County, Montana. Grogan

Robinson, individually and through its predecessors

in interest and/or their subsidiaries and associates,

sold, marketed, and distributed construction products,

including asbestos-contaminated vermiculite insulation

manufactured by the related entity Robinson Insulation,

directly to end users, to other lumber companies, and

to various other retail entities, including the retail

facility operated by the Wood Products Defendants in

App.96a

Libby, Montana. Grogan Robinson engaged in conduct

that resulted in the accrual of this tort action in this

District and Division.

5. Defendants Robinson Insulation and Grogan

Robinson were related entities that operated on

adjacent properties, shared common stockholders,

owners, and managers, and were so insured. Together

they handled the manufacture, sale, shipment, and

delivery of the expanded vermiculite products.

6. Does A-Z are corporations or persons, whose

identities are unknown at this time, and whose negligence and wrongful acts caused asbestos related

mesothelioma in the listed Plaintiffs. Plaintiffs will

seek to amend their complaint when the true names

and capacities of Does A-Z are ascertained.

7. BNSF, Robinson Insulation, and Grogan

Robinson engaged in conduct that resulted in the

accrual of this tort action in this District and Division.

8. This Court has personal jurisdiction over

Defendants whose business activities in this District

are the subject of this case. Defendants have purposely

availed themselves of jurisdiction and consented to

jurisdiction by conducting business in this District

and Division.

9. This Court maintains subject matter jurisdiction

over this action pursuant to 28 U.S.C. § 1332 (diversity

of citizenship). The amount in controversy for each

Plaintiff exceeds $75,000.

10. Venue is proper in this Court under 28 U.S.C.

§ 1391 because Defendants Robinson Insulation are

subject to personal jurisdiction in this District and

Division.

App.97a

GENERAL ALLEGATIONS

11. The Plaintiffs’ decedents were community

members of Libby, Montana, where vermiculite ore,

intermixed with a highly toxic form of asbestos, was

mined, processed, released, spilled, and deposited

from 1923-1990. Plaintiffs’ decedents had repeated

and continuous exposures to asbestos, which was in

large part released and emanated from accumulations

of asbestos containing material harbored on properties

owned and maintained by BNSF.

12. Plaintiffs’ decedents were ignorant of the

nature and extent of the life-threatening risks and

injury involved.

13. The Plaintiffs’ decedents incurred exposures

to asbestos, for which Defendants are responsible,

that were very similar in nature and extent, having

occurred during an overlapping and coinciding time

frame, in nearly identical locations in proximity to

BNSF’s railyard, and which resulted in parallel medical

outcomes with both developing and dying from asbestos

induced mesothelioma within several months of one

another.

ALLEGATIONS AS TO BNSF

14. The following entities are all predecessors of

the Defendant BNSF: Chicago, Burlington & Quincy

Railroad Company (“CB&Q”), Atchison, Topeka &

Santa Fe Railway Company, Great Northern Railway

Company, Northern Pacific Railway Company, and

Burlington Northern Railroad Company.

15. Through a series of mergers, the CB&Q, the

Atchison, Topeka & Santa Fe Railway Company, the

Great Northern Railway Company, the Northern

App.98a

Pacific Railway Company, and the Burlington Northern

Railroad Company have all merged into BNSF.

16. BNSF has assumed the liabilities of the Great

Northern Railway Company and the Burlington

Northern Railroad Company.

17. BNSF’s active vermiculite operations began

in the 1920s and continued until the last shipment of

vermiculite left Libby in 1994. The Libby vermiculite

was at all times inextricably intermixed with a highly

toxic form of asbestos. The 70 years of vermiculite

operations resulted in substantial asbestos contamination of BNSF properties and surrounding areas.

18. The ore was mined at Vermiculite Mountain,

seven miles northwest of Libby and the asbestoscontaminated vermiculite concentrate was moved via

a conveyor belt across the Kootenai River to the River

Loading Facility, located 4.5 miles east of BNSF’s

railyard in Libby (the “Railyard”). BNSF constructed

and oversaw the River Loading Facility for the

exclusive benefit of Zonolite (later W.R. Grace) in furtherance of their common goal of profiting from the

sale and distribution of the vermiculite concentrate

across the country.

19. The airborne dust created during the

processing and production of the vermiculite ore was

sampled and found to contain approximately 40%

asbestos.

20. The river loading process was extremely dusty.

The loaded rail cars and the entire area were constantly

coated in a layer of asbestos contaminated vermiculite

dust. When hopper cars were loaded at the river site

much loose vermiculite accumulated on the top of

every car. From the 1950s to 1994, BNSF employees

App.99a

riding in engines pushing the vermiculite cars to town

described visible clouds of dust being produced while

returning loaded cars from BNSF’s River Loading

Facility to its downtown Libby Railyard. These

accumulations of dust and layers of asbestos

contaminated vermiculite dust were not contained or

transported and were instead released into the

environment and deposited on BNSF’s Libby properties

contributing to the reservoir of asbestos containing

material documented in the downtown Libby Railyard.

21. The Libby Railyard was the heart of BNSF

activities in Lincoln County. It was located directly

adjacent to downtown Libby, surrounded by Libby’s

residential neighborhoods where Plaintiffs’ decedents

resided, businesses, and parks. The Railyard was

extensive, spanning the entire north end of downtown

Libby. W.R. Grace’s downtown Libby facility initially

straddled, and later adjoined the BNSF Railyard

property line and consisted of vermiculite storage,

loading, and processing facilities. The storage and

export facilities were left open to the public. Most

children growing up in Libby recall playing in the area

of the Railyard and in the piles of vermiculite located

throughout the Railyard complex.

22. The Libby mine produced approximately 80%

of the world’s vermiculite ore, which up to 1970

amounted to over 29 billion pounds of ore and was

estimated to exceed 35 billion pounds of ore between

1971 and 1981 alone. Based on analysis of the

asbestos content of the vermiculite concentrate (ranging

between 0.3% and 7% asbestos), the amount of asbestos

which BNSF brought into downtown Libby amounted

to between 193 million and 4.5 billion pounds between

App.100a

1925 and 1981, and between 19.7 and 460 million

pounds throughout the 1980s.

23. Grace’s average daily production was between

500 and 1,000 tons of finished vermiculite concentrate

per day in the late 1960s and 1970s, and between 800

to 1,000 tons per day in the 1980s. Based on

vermiculite asbestos percentages as measured in the

1980s and a daily average of 750 tons, BNSF carried

up to 105,000 pounds of Libby asbestos into downtown

Libby per day in the late 1960s and 1970s and, based

on a daily average of 900 tons per day, up to 126,000

pounds per day through the 1980s.

24. Asbestos sampling and remediation efforts on

BNSF properties in Lincoln County did not begin until

2001, more than a decade after vermiculite mining

operations ceased in Libby. At that time substantial

asbestos contamination and visible vermiculite was still

identified throughout its properties at the surface and

reaching depths exceeding

4-6 feet in some locations. Remediation efforts on

BNSF’s properties continued for over a decade, yet in

2013 the EPA determined that additional cleanup at

the Railyard was still needed.

25. Constant varied industrial activities took place

at the Railyard throughout Plaintiffs’ decedents’ periods

of exposure, resulting in disturbance of the asbestos

containing dirt, dust, and vermiculite ore documented

at the site. These railroad activities occurred in close

proximity to, or direct contact with, the ubiquitous

visible vermiculite at the site, resulting in the creation

of consistent clouds of visible dust. An average of 20

non-stop trains consisting of up to 100 cars travelled

through the Libby Railyard at 50 mph on a given day.

App.101a

Asbestos containing dust produced through active

disturbance of vermiculite, asbestos contaminated soil

and other surfaces would remain suspended for many

hours as it drifted throughout the Libby community.

Even just the wind blowing would cast dust from the

downtown Libby Railyard into the neighboring Libby

community. Given the reservoir of asbestos containing

waste present in the Railyard throughout all relevant

periods, disturbances, unrelated to transport of

vermiculate, ranging from the regular industrial level

activities to routine maintenance activities and even

normal weather events resulted in the casting of

asbestos dust into the neighboring Libby community.

26. The EPA has stated that sources of asbestos

contamination are, at least in part, from properties,

railroad tracks, and rights-of way owned, leased, and

maintained by BNSF, as well as from various BNSF

operations performed at a number of locations at or

near the asbestos mine facility, and that during such

operations, vermiculite containing amphibole asbestos

was released to the environment through spillage

from the rail cars causing it to accumulate over time.

27. More than a decade after vermiculite

operations had ceased in Libby, sampling performed

during routine maintenance activities in the downtown

Libby railyard still demonstrated airborne asbestos

fiber levels of up to 14 f/cc. This is an airborne

asbestos level more than 150,000 times greater than

the EPA’s Libby Asbestos Reference Concentration

(RfC) and 140 times higher than OSHA’s permissible

exposure limit for workplace asbestos exposure.

28. BNSF played a central role in the vermiculite

operations in Libby, far exceeding a common

carrier/shipper relationship. BNSF took upon itself to

App.102a

perform economic analyses of the vermiculite

operations; BNSF participated in developing new uses

for vermiculite products and assisted in marketing the

vermiculite product to various customers; BNSF

funded geologic surveys of the vermiculite deposit;

BNSF engaged in several of its own geo-chemical

samplings/analyses of the vermiculite ore and associated constituents; and BNSF oversaw dust control,

safety, construction, and modifications of the Grace

shipping facilities. BNSF transported the entirety of

the mined payload of Vermiculite Mountain and also

sold land to Grace, and leased land and rail facilities

to Grace for a negligible amount. Similarly, Grace

leased and sold land to BNSF in furtherance of their

common design of profiting from the export of

asbestos-laden vermiculite. Grace and BNSF granted

each other easements and access agreements

on/across their respective adjoining properties.

29. Emblematic of Grace and BNSF acting in

concert in these operations was the River Loading

Facility. The River Loading Facility was constructed

and operated throughout its existence on BNSF property, for which Grace paid minimal rent. BNSF

oversaw all construction of and modifications to the

River Loading Facility. This included reviewing and

approving plans for all River Loading Facility dust

control equipment prior to installation. In requesting

BNSF’s review and approval of the 1971 additional

dust control facilities, Grace informed BNSF that they

were being installed to “comply with Air Pollution

Control Regulations in the state of Montana.”

30. Starting in the 1920s, BNSF’s knowledge of

the presence of asbestos in the Libby vermiculite is

demonstrated in publications and BNSF company

App.103a

documents. By 1925, BNSF was one of the first

entities to perform a geo-chemical analysis of the

Libby Ore. Over the ensuing years, BNSF showed a

continued interest in the economic potential of the

Libby Ore and development of the resource. BNSF

issued reports on the vermiculite operations prepared

by its Division of Economic Research, sampled/tested

the ore several times, and visited the mine site on multiple occasions. Correspondence beginning in 1929

between G.R. Martin, Vice President of the BNSF

predecessor, demonstrates BNSF’s detailed knowledge,

including that “the vermiculite deposit near Libby,

which is more extensive than other known similar

deposits in this country, is accompanied by asbestos.”

In 1959 the railroad funded a geologic study of the

mineral deposit which, among other things, provided

that:

Fibrous amphibole asbestos, because its specific gravity is very near that of vermiculite,

causes much trouble in milling the lower

grade ores in which the asbestos is abundant.

If a process could be perfected to make a

clean separation of vermiculite and asbestos,

both products would be marketable . . .

This and other documents unequivocally provided

BNSF with notice that the Libby vermiculite was

inextricably contaminated with asbestos.

31. BNSF funded further geologic studies of the

mineral deposit similarly confirming the presence of

asbestos at the site and the inability to separate the

asbestos from the vermiculite. In addition to funding

geologic studies, BNSF’s Mineral Research and Development Department and its Geology Department investigated, tested, and gathered samples of the vermiculite

App.104a

ore. Throughout the years, BNSF discussed possible

rates with the mining company for the shipment of

Libby asbestos by rail from Libby.

32. By 1977 or earlier, and thereafter, railcars

carrying the Libby Ore were marked with asbestos

warning placards that read as follows:

CAUTION

Contains asbestos fibers.

Avoid creating dust.

Breathing asbestos dust may

cause serious bodily harm.

33. The Occupational Safety and Health Act was

passed in 1970 requiring employers to test the level of

asbestos in their workplace. Despite BNSF’s knowledge that asbestos was present in the Libby Ore and

that Libby Ore was being released, spilling, and

depositing on BNSF properties, BNSF failed to conduct

any testing for the presence of asbestos in its

workplaces in Lincoln County, including the downtown

Libby railyard.

34. BNSF had early and continuous knowledge of

the hazards of asbestos exposure, including bystander

exposures, as well as standards of care for detection

and prevention of such hazards. Beginning in the late

1920s, asbestos related disease was generally recognized as a deadly health hazard throughout medical

and industrial hygiene publications. The connection

between asbestos exposure and cancer was established by the 1940s within the medical and industrial

hygiene communities.

35. The American railroad industry, and specifically BNSF and its predecessors, have been aware of

the asbestos hazard for decades. This knowledge is

App.105a

well documented by the 1930s and thereafter through

documents including those known as American Association of Railroad (AAR) Documents, the Alton

Railroad Documents, the National Safety Council Documents and BNSF company documents. The record also

demonstrates BNSF’s contemporaneous understanding

of applicable safety regulations and its regular

discussion of their impact on its operations. In addition

to the applicable safety regulations and general

industrial hygiene practices to which BNSF was subject, the Railroad set forth its own self-imposed safety

responsibilities which similarly demonstrate its

knowledge of these protective principles. BNSF had

an extensive exposure to applicable industrial hygiene

standards of care throughout the years that it shipped

Libby vermiculite. BNSF maintained a Medical Department, an Industrial Hygiene Department, a Safety

Department, and a Geology/Mineral Research Department.

36. BNSF train crews operated the local switching

train, known as the “Libby Logger,” which brought the

asbestos-contaminated vermiculite from the so-called

“river loading facility” located on BNSF property some

4.5 miles east of town, adjacent to the base of W.R.

Grace’s mining operation, into downtown Libby. BNSF

officials were responsible for the crews’ safety,

including among other responsibilities identifying

risks of injury, warning others of those risks, and

preventing harm by eliminating risks.

37. BNSF officials toured W.R. Grace’s facilities,

including the mine, where he saw government required

signs in the mine with the following warning:

“Asbestos. Dust Hazard. Avoid Breathing Dust . . .

Breathing Dust May Be Hazardous to Your Health.”

App.106a

38. W.R. Grace leased land to and from BNSF,

both adjacent to BNSF’s railyard in Libby, where it

operated vermiculite bagging plant and boxcar loading

facility, and at the River Loading Facility located on

BNSF’s property some seven miles out of town,

adjacent to the base of W.R. Grace’s mining operation.

BNSF officials inspected the downtown bagging plant

operations because it was located on the railroad property, and observed the Grace employees filling the

bags with vermiculite, which bags contained

warning labels which stated: “Caution. Contains

asbestos fibers. Breathing asbestos dust may cause

serious bodily injury.”

39. BNSF officials received requests by Grace for

permission to make modifications to their lease-hold

improvements on BNSF property, including equipment

to control the toxic asbestos containing dust.

40. BNSF officials were integral to controlling the

enormous amount of dust pollution being caused by

BNSF’s transport of Grace’s asbestos laden

vermiculite through the Libby community. They were

well aware of the dust blowing off and loose vermiculite

spilling from the tops of the loaded vermiculite

railroad cars, and in fact ordered the crew to place

Grace’s vermiculite cars behind the local lumber mill’s

wood chip cars because of complaints received from

the processing company that received the wood chips

about the vermiculite dust contaminating the wood

chips.

41. BNSF had the authority to remedy the dusty

conditions, and the Libby Log crew also complained to

BNSF officials about the large amount of dust blowing

off the top of the loaded hopper cars coming from

Grace’s river loading facility. Emblematic of BNSF’s

App.107a

control over Libby railroad operations, BNSF officials

went to Grace and told them that this had to stop or

the railroad would not move the cars. Tragically, BNSF

officials did not enforce this edict to W.R. Grace and

the asbestos pollution continued unabated.

42. Nor did BNSF officials take action to enforce

this edict or sound a warning to BNSF workers or the

Libby community when directly confronted with

notice that the vermiculite contained toxic asbestos.

After a BNSF crew member first saw a placard on the

Grace vermiculite cars warning that the vermiculite

loaded cars contained asbestos, he removed the placard

and brought it to a meeting to address his safety concerns that was attended by BNSF management officials

and the manager of Grace’s Libby mine. Yet despite

the presence of BNSF officials who were in charge of

site safety—including the need to identify risks of

injury, to warn others of those risks, and to prevent

harm by eliminating risks of harm—BNSF did nothing

following this meeting, and the railroad’s asbestos

pollution of Libby continued unabated, claiming ever

more victims with the passage of time.

FIRST CLAIM

Negligence v. BNSF

(All Plaintiffs)

43. All paragraphs above are incorporated by this

reference.

44. Plaintiffs’ decedents resided or remained in

proximity to the real property of BNSF and were

thereby exposed to asbestos dust from BNSF’s property

and operations.

App.108a

45. Throughout their years of exposure, the Plaintiffs’ decedents lived in an environment that caused

them to be exposed to and to inhale asbestos dust.

46. At all times Plaintiffs’ decedents were ignorant

of the nature and extent of the life-threatening risks

and injury involved, and would not have continued to

remain in such an environment if they had known the

true facts.

47. Without knowledge of the nature and extent

of the asbestos hazard, Plaintiffs’ decedents were

denied the option of avoiding exposure, demanding

dust control or changing residence.

48. At all times BNSF knew or should have

known of the asbestos in the vermiculite and knew or

should have known of the hazards to human health of

asbestos exposure and had a continuing duty to gather

information, to prevent toxic dust from collecting upon

and escaping from its property, and to warn Plaintiffs’

decedents and others who would be harmed by said

asbestos containing dust.

49. BNSF was the property owner of the river

loading facility and portions of the downtown export

facility where asbestos-laden vermiculite was loaded

onto train cars. BNSF paid for, oversaw, and operated

the river loading facility. BNSF oversaw and inspected

the downtown export facility which was part of its

larger downtown Railyard complex. BNSF main

This text is long and has been trimmed here. Open the source document for the complete record.