United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Compel, or in the Alternative, Renewal of Request for a
Modified Scheduling Order. Dkt. #12. Defendant was forced to
file this Motion seeking responses to Defendant BNSF Railway
Company's First Combined Interrogatories and Requests for
Production to Plaintiff. Alternatively, Defendant requests
that the Court require early and phased discovery as to
Plaintiff's experts. Id. at 3-4. Plaintiff has
subsequently responded to Defendant's discovery requests.
Dkt. #13 at 1-2. Despite receiving responses, Defendant
maintains that the responses “lacked substantive
content” and does not withdraw its Motion. The Court
grants the Motion in part.
worked for Defendant and its predecessor for almost 20 years.
Dkt. #1 at ¶ 6. Following his employment, Plaintiff
developed bladder cancer that he alleges was caused by his
exposure to “diesel fuel/fumes/exhaust, benzene,
creosote, herbicides[, ] and asbestos dust and fibers”
in the course of his employment. Id. at ¶¶
7-11. Defendant's central concern is that Plaintiff's
Complaint does not “allege that any of the substances
are known to cause bladder cancer.” Dkt. #12 at 3.
Defendant asserts that Plaintiff will ultimately have to
“prove that a specific substance causes the type of
cancer at issue in the lawsuit.” Id. (citing
Henricksen v. Conoco Phillips Co., 605 F.Supp.2d
1142 (E.D. Wash. 2009). Defendant thus argues that its
discovery is aimed at “narrowing the issues” and
that phasing discovery as to experts can remove claims that
will not ultimately proceed. Dkt. #12 at 3-4.
has not opposed Defendant's Motion, filing only an
untimely response. See Dkt. #15. Plaintiff provides
no explanation for the untimely filing and the Court will not
consider it. To the extent necessary, the Court denies
Plaintiff's request for leave to file an untimely
response. The Court takes Plaintiff's failure to respond
as an admission that Defendant's Motion has merit.”
See LCR 7(b)(2) (“Except for motions for
summary judgment, if a party fails to file papers in
opposition to a motion, such failure may be considered by the
court as an admission that the motion has merit.”). The
Court therefore considers what relief is appropriate.
Court will not grant Defendant's alternative request that
the Court modify the scheduling order to phase discovery.
Specifically, Defendant requests that Plaintiff be required
to present, within 30 days, an affidavit of a qualified
expert identifying (1) each specific substance Plaintiff
claims caused his cancer, (2) an expert who will testify as
to each substance, and (3) the supporting scientific and
medical literature. See Dkt. #12-3 (Defendant's
proposed order). On this record, the Court does not find good
cause for departing from the normal course of discovery or
its scheduling order. Additionally, to the extent Defendant
points to the possibility of future harm absent its requested
relief, Defendant is protected under the applicable rules and
can raise the issue with the Court when appropriate.
Court does, however, find that Plaintiffs discovery responses
are insufficient and non-responsive. See e.g.
Dkt. #13-1 at 3.
NO. 3: With respect to creosote please identify:
(a) Who told you that your cancer was caused by creosote;
(b) For each individual, please state when it occurred;
(c) For each individual, please state whether that individual
is an expert witness as defined by Federal Rule of Evidence
702 and if so, in what field;
(d) Identify the scientific and medical authorities that
support a causal link between creosote and your cancer;
(e) Identify all witnesses and all documents that you contend
established evidentiary support for your factual contention
that creosote caused your cancer.
ANSWER: Plaintiff will respond in way of
the Court finds that Defendant's Motion should be granted
to the extent it seeks substantive and complete ...