United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART UNOPPOSED
MOTION FOR A MODIFIED SCHEDULING ORDER
L. Robart United States District Judge.
the court is Defendant BNSF Railway Company's
(“BNSF”) motion for a modified scheduling order.
(Mot. (Dkt. # 23).) Plaintiff Teresa Jacobson failed to
respond to BNSF's motion. (See generally Dkt.;
see also Reply (Dkt. # 25) (noting Ms.
Jacobson's lack of response).) The court has reviewed the
motion, the relevant portions of the record, and the
applicable law. Being fully advised, the court GRANTS in part
and DENIES in part BNSF's motion as described herein.
Jacobson filed her lawsuit against BNSF on November 30, 2018.
(See Compl. (Dkt. # 1).) She alleges that, while
Decedent James P. Jacobson was working for BNSF and SOO Line
Railway (“SLR”) from 1963 to 2015, he was exposed
to “various toxic substances and carcinogens including
but not limited to diesel fuel/fumes/exhaust, benzene,
creosote, herbicides, and rock/asbestos/sand dust and
fibers.” (Id. ¶¶ 8-9, 12-14.) She
alleges that Mr. Jacobson's “exposure was
cumulative and occurred at different and variable exposure
levels over the course of his career depending on his work
location and the precise job to which he was assigned,
” and this exposure occurred in facilities, yards,
buildings, and right of ways. (Id. ¶¶ 13,
15, 17.) Ms. Jacobson's allegations about Mr.
Jacobson's toxic exposures at BNSF are identical to her
allegations about his toxic exposures at SLR. (Id.
response to BNSF's interrogatories and requests for
production, Ms. Jacobson (1) could not identify a single
person with “knowledge relevant to any of
plaintiff's claims or any person likely to have
discoverable information, ” (2) could not identify any
of Mr. Jacobson's medical providers aside from the
providers he saw in the month leading up to his death; (3)
admits she has no documents substantiating the allegation
that Mr. Jacobson was exposed to various toxic substances and
carcinogens while he was employed at BNSF; and (4) admits she
has no documents substantiating the allegation that Mr.
Jacobson's exposure to toxic substances and carcinogens
caused or contributed to Mr. Jacobson's development of
kidney cancer or any other condition. (Chait Decl. (Dkt. #
24) ¶ 7, Ex. 5 at 6, 8, 10, 22-24 (attaching answers to
Interrogatory Nos. 5, 8, and 10, and Requests for Production
Rule of Civil Procedure 11(b)(3) requires an attorney to
certify that the factual contentions within a complaint have
evidentiary support or, if specifically so identified, will
likely have evidentiary support after a reasonable
opportunity for further investigation. Fed.R.Civ.P. 11(b)(3).
BNSF argues that, given Ms. Jacobson's discovery
responses and the general allegations in her complaint, there
is “a serious question” whether she can establish
causation. (Mot. at 6.) Considering the discovery burdens
that this case is likely to impose on BNSF (see Id.
at 5), BNSF asks the court for a modified scheduling order
requiring Ms. Jacobson to provide evidence for causation
presently (see generally id.). BNSF argues that
there is good cause for such a modification because the
complaint and Ms. Jacobson's discovery responses do not
even make clear the specific type of cancer from which Mr.
Jacobson suffered. (See Id. at 9-11); see
also Fed. R. Civ. P. 16(b)(4) (“A schedule may be
modified only for good cause and with the judge's
Jacobson did not respond to BNSF's motion. (See
generally Dkt.) “[I]f a party fails to file papers
in opposition of a motion, such failure may be considered by
the court as an admission that the motion has merit.”
Local Rules W.D. Wash. LCR 7(b)(2). Here, the court
concludes, based on BNSF's filings and Ms. Jacobson's
lack of response, that BNSF's motion has merit and there
is good cause for a modification of the scheduling order.
However, the court does not grant BNSF's motion in its
entirety. Instead, as described below, the court GRANTS in
part and DENIES in part BNSF's motion (Dkt. # 23).
BNSF has demonstrated good cause for a modification of the
scheduling order, the court hereby ORDERS the following
modification: Within 14 days of the filing date of this
order, Ms. Jacobson shall identify:
(1) the specific type of kidney cancer from which Mr.
Jacobson suffered or explain why Ms. Jacobson cannot
specifically identify the type of cancer;
(2) the substances that Ms. Jacobson contends caused Mr.
Jacobson's kidney cancer;
(3) an expert witness who can opine that the substances Ms.
Jacobson is claiming caused the type of kidney cancer from
which Mr. Jacobson suffered can, in fact, cause the specified
type of cancer;
(4) the scientific and medical authorities that support the
causal link between Mr. Jacobson's exposures and his
court DENIES BNSF's request to stay all further discovery
pending Ms. Jacobson's responses to the foregoing items.
(See Mot. at 11.) Further, the court DENIES
BNSF's request for an automatic dismissal of Ms.
Jacobson's complaint if she fails to produce the required
information within the designated time. (See id.)
Instead, BNSF is free to bring a motion it believes is
appropriate based on the information Ms. Jacobson produces or
fails to produce.