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Cleaver v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

October 9, 2019

WESLEY A. CLEAVER, 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, Wesley A. Cleaver (“Cleaver”). (Filing No. 15). In support of its motion, Union Pacific relies on Cleaver'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. 16). Cleaver filed no evidence opposing the motion for summary judgment. Instead, Cleaver objects and moves to withdraw the deemed admissions, (Filing No. 18). Cleaver seeks to replace those deemed admissions with a proposed response denying each request. (Filing No. 18-1). Cleaver has offered no evidence in support of the denials within his proposed amended response.

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

         STATEMENT OF FACTS

         Cleaver's FELA action was filed in this court on October 26, 2018. (Filing No. 1). Cleaver was a trackman and heavy equipment operator for Union Pacific. The complaint alleges exposure to toxins while working for Union Pacific caused or contributed to Cleaver's development of Non-Hodgkin's lymphoma. (Id.)

         Cleaver'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, Cleaver's mandatory disclosures were due on March 18, 2019. (Filing No. 10).

         Union Pacific served requests for admissions on Plaintiff's counsel on March 19, 2019. (Filing No. 11; Filing No. 17, at CM/ECF p. 5). The requests asked Cleaver to admit:

         ➢ Cleaver'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 did not cause or contribute to his non-Hodgkin's lymphoma.

         ➢ Union Pacific:

• provided Cleaver 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 Cleaver's exposure to toxic materials and carcinogens, (Request No. 9);
• took reasonable steps to warn Cleaver of the risks of exposure to potential carcinogens, (Request No. 10);
• made reasonable efforts to monitor the levels of exposure of Cleaver to potential carcinogens, ...

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