• Defendants’ Knowledge of Asbestos Not Required to Survive Motion to Dismiss
  • August 3, 2018
  • 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 care, and therefore, could not establish the first element of a negligence claim. BNSF noted that the plaintiff’s Complaint acknowledged that BNSF did not have proper notice that the relevant product contained asbestos, and even if they did have notice of asbestos contamination, there were no allegations in the complaint that BNSF could foresee that the asbestos could have led to the claims that the plaintiff advanced. In other words, BNSF contended that no legal duty existed.

    In issuing this decision, the court emphasized that, in determining a motion to dismiss at this juncture in the case, the Court must accept the allegations in the Complaint as true. After citing to several paragraphs in the plaintiffs’ complaint, if accepted as true, the court found BNSF had fair notice of what the claim was and the grounds upon which it rests. The court further confirmed that (i) whether BNSF actually knew or should have known of the danger of asbestos and vermiculite proves irrelevant and (ii) whether plaintiffs would ultimately succeed in their negligence claim did not matter at the current juncture of the case. Thus, the plaintiffs have sufficiently pled a claim of negligence against BNSF and the motion was denied.