W.R. Grace mine and mill outside of Libby

Our firm has deep roots in Libby, a tight-knit mining and logging town along the beautiful Kootenai River in the far corner of northwest Montana. In 1975 the Libby Dam opening was celebrated, having flooded the valley upstream of Libby and formed the Koocanusa Reservoir. Dale McGarvey handled virtually every property condemnation case related to the dam, so local miners came to us when they needed legal advice about lung diseases that seemed to be related to the vermiculite mine in town. When we took the first case, we had no idea of the full nature and extent of the challenges that lay ahead. After 25 years, we have established in Montana’s Courts that not only the mine itself, but also the state, railroad, and local lumber mill contributed to exposing various residents of Libby to toxic levels of asbestos.

First, there was Les Skramstad, who was diagnosed with asbestos-related disease in his 50s, years after working at the W.R. Grace vermiculite mine in Libby as a young man. The statute of limitations prevented him from seeking benefits through Worker’s Comp, but the Montana Supreme court had recently held that civil tort suits could be brought against the employer in such circumstances. We knew he had a strong case when we uncovered old inspection documents from Montana’s Department of Public Health showing there was an enormous amount of dust in the air at the mine, and that the dust contained large amounts of toxic asbestos. We brought Les’s case to trial in 1997 and won. The publicity kicked off a domino of former W.R. Grace workers and families knocking on our door, including Gayla Benefield. Her mother, Margaret, suffered severe asbestos-related disease and eventually died. Her father had worked at the mine, and came home each night with dust on his clothes, unknowingly exposing his family to toxic asbestos. We took Gayla’s case and again succeeded in 1998 with wrongful death verdict. The next case was Jerry Finstead, who worked at W.R. Grace for a short time as a young man—long enough to contract asbestos-related disease. This jury again returned a verdict in favored Jerry, awarding both compensatory and punitive damages. By the late 1990s, after succeeding three times with juries against the company and settling other cases on the eve of trial, we began to wonder how many other ailing workers and families there were who deserved justice.

As cases against W.R. Grace gained steam in the late 1990s, the company joined a corporate movement pushing for legislation in Congress that would protect big business from asbestos liability. The bailout bills nearly passed, but the voices of our Libby clients, including Les and Gayla, rang out in the halls of Congress, their powerful stories overpowering the well-funded lobbyists. Libby residents also successfully opposed bailout bills at the state level, testifying on several occasions in Helena. Meanwhile, in late 1999 the press and public attention spurred the EPA to reopen a Superfund assessment had been abandoned in the 1980s, resulting in Libby being designated as a Superfund site in 2002. In 2009, EPA declared Libby a Public Health Emergency—the agency’s first and only designation under the Superfund Law.

Companies like W.R. Grace often file for bankruptcy protection rather than pay out tort claims for the injuries that their activities have caused. In April 2001, after off jury verdicts and various legal settlements, and still facing thousands of personal injury claims, the company filed for bankruptcy. We then dove headfirst into the bankruptcy proceedings, and ultimately secured special provisions for Libby workers and families under the “Trust Distribution Procedures”, including up to eight times the scheduled value of compensation in certain “extraordinary claims.”

Baseball fields in downtown Libby with W.R. export plant and Great Northern Railyard in background.

Even with the “extraordinary claims” status for Libby residents, they will still not be made whole from compensation received from W.R. Grace. We knew that the mine didn’t bear sole responsibility for the tragedy that befell the Libby community.

The State of Montana was complicit. The Montana Department of Public Health inspection documents proving the presence of dangerous levels of asbestos in dust at the mine, dated back to the mid-1950s. The State stamped the documentation “for company only,” an appalling lack of transparency. The inspections were not distributed to the workers or disclosed to their families. We sued the state for negligence in failing to warn them of the toxic working conditions, and we prevailed in the landmark case of Orr, et al v. State of Montana, 2004 MT 354.

Maryland Casualty, the insurer for W.R. Grace, conducted its own inspections with similar results, and also obscured the risks. In March 2020, we successfully argued the insurer’s complicity in the Montana Supreme Court. Again, we prevailed in a landmark decision, Maryland Casualty v. Asbestos Claims Court, 2020 MT 70.

Additionally, the BNSF Railroad had transported cars of contaminated vermiculite from the mine, 7 miles outside town, to the railyard right in the heart of Libby, exposing all community members to the asbestos contamination. In March 2020, the Montana Supreme Court vindicated this argument in yet another landmark decision, BNSF v. Asbestos Claims Court, 2020 MT 59.

An additional theory of responsibility involves the J. Neils Lumber Mill and its successors, who sold home products, including asbestos-containing vermiculite insulation. These cases have been resolved through settlement.

For more than 25 years, our firm has fought on behalf of the people of Libby, and we continue this work today. This is an important part of this firm’s legacy: we are dedicated to advocating for the workers and families of Montana—and working to ensure that the places where they live are clean and healthful.