Writing for the panel, U.S. Circuit Judge Morgan B. Christen concluded that BNSF’s actions fell squarely within that exception. Federal law required the railroad to transport the asbestos-containing vermiculite from the Libby mine to its local railyard and onward to destinations across the country.
The plaintiffs argued that BNSF should still face liability for allowing asbestos dust to accumulate on its tracks and in its railyard. But the panel rejected that view, finding that the dust escaped from rail cars during the required transportation process.
“The fact that the dust accumulated gradually along the railroad tracks and in BNSF’s railyard, rather than spilling abruptly, does not alter our analysis,” the court wrote, emphasizing that the release occurred in the course of shipment.
The panel also declined the estates’ request to certify a question to the Montana Supreme Court about whether the common carrier exception applied, stating that the Eddy decision already provided clear guidance.
Reaction From the Parties
Kevin P. Parker of The Lanier Law Firm, representing the estates, said the plaintiffs respectfully disagreed with the ruling and believe the court misinterpreted Montana law. He added that the legal team is consulting with clients and considering possible next steps, including further appeal.
