Plaintiff’s Request for Reconsideration of Granting of Summary Judgment Denied in Railroad Take-Home Exposure Case U.S. District Court. W.D. Washington, September 30, 2018
WASHINGTON — In an update to a case previously reported by Asbestos Case Tracker, The plaintiff’s Motion for Reconsideration of the Court’s Order granting summary judgment for Union Pacific Railroad has been denied.
By way of background, the plaintiffs alleged that Mr. Jack was secondarily exposed to asbestos from the work clothes of his father who worked at Union Pacific Railroad. The plaintiffs argued that the court failed to properly review 1) information provided by the plaintiffs’ expert Dr. Barry Castleman; and 2) the court erred in its conclusion regarding the foreseeability of the risks of secondary exposure related to other legal opinions. The court quickly set the standard for reconsideration and noted that reconsideration is not favored. The elements required for successful reconsideration include 1) that the court committed a manifest error in its ruling and 2) that new facts or authority could not have been brought to the court’s attention earlier. Here, the court noted that the plaintiffs did not submit Dr. Castleman’s report when opposing the motion for summary judgment of Union Pacific Railroad. According to the court, the plaintiffs were seeking a “second bite at the apple.” Moreover, the documents the paintiffs focus attention upon did not address the risks of secondary exposure to the families of asbestos exposed workers according to the court. Also, the court mentioned that the documents did not shadow Dr. Castleman’s admission that Union Pacific would have found “practically nothing in print” had it wanted to research the risks of secondary exposure. The plaintiffs continued their argument and took the position that the court’s decision was contra to other opinions. The Court was not persuaded by this argument as the plaintiffs had not previously raised this issue.
As for by-stander exposure, the plaintiffs argued that the court committed manifest error in concluding that Dr. Brodkin’s report could not withstand a Daubert challenge. On the contrary, the court found that it had not subjected Dr. Brodkin to a Daubert challenge but rather found that Dr. Brodkin’s “opinion, along with the plaintiff’s other exposure evidence, was too imprecise to establish a reasonable connection between Mr. Jack’s injury and Union Pacific’s conduct.” Finally, the court was not persuaded that Dr. Bodkin’s evidence could have defeated summary judgment with respect to Union Pacific’s motion.