The Ninth Circuit delivers some bad news today to a segment of the plaintiff's bar. Particularly that segment located in Montana.
It's an asbestos case. Those lawsuits were classically filed against W.R. Grace & Co., which was the company that mined vermiculite out of the world's largest source of that mineral in Montana. That ore, however, contained substantial amounts of asbestos. So, as one might expect, W.R. Grace & Co. got sued. A lot.
But W.R. Grace & Co. went bankrupt in 2001. So the plaintiff asbestos bar needed to find someone else to sue.
BNSF Railway fit the bill. That railroad shipped pretty much all of the vermiculite from the Montana mine, and in its wake, allegedly threw off asbestos to the surrounding area. So a ton of lawsuits were filed against it.
The one at issue here was the first one to go to trial. And the jury found BNSF strictly liable, and awarded the two plaintiffs $4 million each in damages.
The Ninth Circuit reverses.
The majority opinion, written by Judge Christen, holds that the railroad is not liable under Montana law for strict liability. The concurring opinion, authored by Judge Callahan, not only agrees with the majority, but also believes that federal law -- specifically, the Interstate Commerce Commission Termination Act -- also preempts plaintiffs’ strict liability claims.
In short, at least in Montana, and likely elsewhere in the Ninth Circuit, these types of cases are not going anywhere. At least not against the railroads.
