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Ribbing v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

October 9, 2019

CAROL RIBBING, as the personal representative of the Estate of Gregory Ribbing, deceased; Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         On July 31, 2019, the defendant, Union Pacific Railroad Company (“Union Pacific”) moved for summary judgment on all claims filed by the plaintiff, the Estate of Gregory Ribbing (the “Estate”). (Filing No. 15). In support of its motion, Union Pacific relies on the Estate's deemed admissions to requests for admissions served by Union Pacific and argues that based on those admissions, Union Pacific is entitled to judgment as a matter of law. (Filing No. 17). The Estate filed no evidence opposing the motion for summary judgment. Instead, the Estate objects and moves to withdraw the deemed admissions, (Filing No. 18). The Estate seeks to replace those deemed admissions with a proposed response which denies each request. (Filing No. 18-1). The Estate has offered no evidence in support of the denials within its proposed amended response.

         For the reasons stated below, the Estate's motion (Filing No. 18), will be denied.

         STATEMENT OF FACTS

         The Estate's FELA action was initially filed in another court. With Union Pacific's consent and its agreement not to assert the statute of limitations, the case was filed in this court on October 26, 2018. (Filing No. 1). The decedent, Gregory Ribbing, died on December 27, 2014. (Filing No. 1 at CM/ECF p. 1). Prior to his death, he was a hoisting engineer in Union Pacific's Building and Bridges Department. (Filing No. 1 at CM/ECF p. 2). The complaint alleges exposure to toxins while working for Union Pacific caused or contributed to Gregory Ribbing's development of multiple myeloma. (Id.)

         The Estate's complaint was served on December 5, 2018 (Filing No. 6); Union Pacific's answer was filed on January 31, 2019. (Filing No. 7). The court entered an initial scheduling order on February 6, 2019. Under that order, the Estate's mandatory disclosures were due on March 18, 2019. (Filing No. 10).

         Union Pacific served requests for admissions on Plaintiff's counsel on March 25, 2019. (Filing No. 11; Filing No. 17, at CM/ECF p. 5). The requests asked the Estate to admit:

         ➢ The decedent's exposure to:

• diesel fuel (Request No. 1),
• diesel exhaust (Request No. 2),
• diesel fumes (Request No. 3),
• benzene (Request No. 4),
• herbicides (Request No. 5),
• creosote (Request No. 6), and/or
• asbestos fibers (Request No. 7), during his employment with Union Pacific or its predecessor, did not cause or contribute to his multiple myeloma.

         ➢ Union Pacific and its predecessor:

• provided the decedent with a reasonably safe place in which to work as required by the Federal Employers Liability Act, (Request No. 8);
• acted reasonably to minimize or eliminate the decedent's exposure to toxic materials and carcinogens, (Request No. 9);
• took reasonable steps to warn the decedent of the risks of exposure to potential ...

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