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Court Denies Railway Company’s Renewed Motion for Spoliation; Agrees to Bifurcate Trial

Court: United States District Court for the District of Montana, Great Falls Division

In connection to defendant Burlington Northern Santa Fe Railway Company’s ongoing litigation in Libby, Montana (covered extensively by the Asbestos Case Tracker, including most recently HERE), the estate of decedent Mary Diana Moe brought an action against BNSF for wrongful death allegedly resulting from decedent’s exposure to asbestos resulting from BNSF’s activities in Libby.

BNSF previously moved for spoliation sanctions stemming from plaintiff’s failure to preserve decedent’s remains after her death. …

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Court Denies Motions in Limine Despite Finding Expert Report Disclosure Untimely

Court: United States District Court for the District of Montana, Great Falls Division

From 1923 to 1994, Burlington Northern Santa Fe Railway Company (BNSF) transported vermiculite ore containing amphibole asbestos from a mining and processing location in Libby, Montana. Subsequently, an accumulation of airborne asbestos resulted in and around the town where plaintiffs resided. Plaintiffs allege the defendant’s railyard in downtown Libby served as the hub of the company’s vermiculate business and that it transported crushed vermiculite ore in open rail cars along its “Libby …

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Several Claims in Consolidated Action Dismissed Based Upon Statute of Limitations

Following W.R. Grace’s filing for bankruptcy in April 2001, a series of cases were filed against Maryland Casualty, which was the company’s primary general liability insurer from 1962 to 1973. Specifically, the twenty-nine plaintiffs in this matter filed a lawsuit relating to their diagnosis of asbestosis, in the District Court of Montana in November 2001. The plaintiffs originally named the State of Montana only. Maryland Casualty was named in March 2002. Additionally, seven of the twenty-nine plaintiffs had previously filed suit against Maryland Casualty, in …

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Mass Action Remanded to Montana State Court Based Upon Local Controversy Exception

MONTANA — Nearly two hundred plaintiffs filed a lawsuit in Montana state court against BNSF Railway Company (BNSF) and its managing agent, John Swing. BNSF removed the cases as a mass action, as they all arose out of exposure from W.R. Grace’s operations in Libby, Montana. The plaintiffs were all Montana residents and argued the case was improperly removed because Mr. Swing was also a resident of the state. Magistrate Judge John Johnston entered Findings and Recommendations in the matter on January 23, 2018. Both …

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Exclusion of Evidence Not an Abuse of Discretion; Judgment for Railroad Defendant Affirmed

MONTANA — The plaintiff filed suit against Burlington Northern Santa Fe Railroad Company (BN) under the Federal Employers Liability Act (FELA) and the Locomotive Inspection Act (LIA). Specifically, Mr. Daley alleged he was exposed to asbestos while working at the Somers rail tie treatment plant from 1967-1986 when it closed. After a seven day trial, a verdict was entered finding BN had not violated FELA or LIA. The laintiff appealed arguing the trial court had abused its discretion on multiple evidentiary issues. The parties stipulated …

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Defendants’ Knowledge of Asbestos Not Required to Survive Motion to Dismiss

The United States District Court, District of Montana, issued identical decisions in three with the following similarly situated plaintiffs (collectively as “plaintiffs” ) and defendant BNSF Railway Company (BNSF):

  • Lloyd E. Underwood (CV-17-83-GF-BMM-JTJ);
  • Carrie Sue Murphy-Fauth (CV-17-79-GF-BMM-JTJ);
  • Consuela Deason, as Personal Representative for the Estate of James E. Deason (CV-17-76-GF-BMM-JTJ).

In each case, BNSF filed a motion to dismiss for failure to state a claim (among other arguments).  Here, BNSF argued that the plaintiffs failed to allege that BNSF owed the plaintiffs a duty of …

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Four Cases Improperly Removed Due to Citizenship of Managing Agent of Defendant

MONTANA — Four plaintiffs originally filed suit in the Eighth Judicial District of Cascade County Montana alleging exposure to asbestos in Libby, Montana. Defendant BNSF removed the case to federal court on diversity of citizenship grounds, and alleged that BNSF’s managing agent John Swing was fraudulently joined. The court reviewed the Magistrate Judge’s Findings and Recommendations following a November 2017 hearing, and remanded all four cases to state court.

Each of the four plaintiffs named 80-year-old Montana resident John Swing in their complaints, and gave …

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Plaintiff’s FELA Claim Against Railroad Survives Limitations Challenge

MONTANA — The plaintiff worked for Burlington Northern and Santa Fe Railway Corporation (BNSF) and claimed exposure to amphibole containing vermiculite in that capacity as BNSF transported vermiculite for W.R. Grace. The plaintiff filed suit against BNSF for his asbestos related disease under FELA. The trial court granted summary judgment for the defendant and the plaintiff appealed.

Prior to the suit, W.R. Grace filed for bankruptcy protection in 2001. A temporary restraining order (TRO) was immediately issued prohibiting any suits against third parties arising from …

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State of Montana Properly Joined to Defeat Diversity Jurisdiction

The plaintiff is the surviving spouse of Susan McDowell, who died from mesothelioma. The plaintiff alleged exposure to asbestos-contaminated vermiculite discarded from railcars while being transported from the Libby, Montana mine by Burlington Northern Santa Fe. The state of Montana (State) began inspecting the mine in the 1950s and found hazardous levels of asbestos within the vermiculite. The State did not correct the hazard or warn Libby residents. The plaintiff sued numerous entities, including BNSF and the State of Montana. The defendants removed this case …

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