      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RICHARD B. HUNT,                        )
                                        )
                    Plaintiff,          )
                                        )
      v.                                )            C.A. No. N17C-07-069 ALR
                                        )
UNION PACIFIC RAILROAD                  )
COMPANY,                                )
                                        )
                    Defendant.          )

                            Submitted: November 6, 2017
                            Decided: November 20, 2017

     Upon Defendant’s Motion to Dismiss or for a More Definite Statement
                                 DENIED

      This matter is before the Court on Defendant Union Pacific Railroad

Company’s (“Defendant”) motion made under Superior Court Civil Rules 8(a), 9(b),

12(b)(6), and 12(e) to dismiss for failure to state a claim or for a more definite

statement. Upon consideration of the facts, arguments and legal authorities set forth

by all parties; decisional precedent; and the record of this case, the Court finds as

follows:

      1.     Defendant is a railroad company incorporated in Delaware with its

headquarters and principal place of business in Omaha, Nebraska. Defendant

operates locomotives, railroad cars, and repair facilities throughout several states.

      2.     Plaintiff Richard Hunt (“Plaintiff”) was employed with Defendant from

1978 to 2014 as a machinist at Defendant’s Roseville, California facility.
         3.    On July 10, 2017, Plaintiff filed a complaint against Defendant alleging

that he was exposed to various toxic substances and carcinogens during the course

of his employment with Defendant as a result of Defendant’s negligence.

Specifically, Plaintiff alleges that his position as a machinist required him to

maintain and repair locomotives, and that in the course of these duties he was

exposed to:

         [C]leaning solvents such as mineral spirits; diesel fuel/fume/benzene
         from locomotives and other diesel powered equipment; rust and other
         heavy metals from grinding and cutting steel on the locomotives;
         creosote from the railroad ties; manganese from the electrical welding
         process; asbestos insulation and asbestos brake shoe dust and; rock dust
         from railroad ballast.1

         4.    On August 10, 2017, Defendant filed a motion to dismiss on the

grounds of forum non conveniens or, in the alternative, to dismiss to failure to state

a claim or for a more definite statement. The Court has addressed Defendant’s

motion to dismiss on grounds of forum non conveniens in a separate order.

         5.    With respect to Defendant’s motion to dismiss for failure to state a

claim or for a more definite statement, Defendant argues that Plaintiff’s complaint

is defective for two reasons. First, Defendant contends that Plaintiff did not

adequately identify the toxic substances that he was exposed to and, therefore, that

Defendant has not been placed on sufficient notice of Plaintiff’s claim. Second,



1
    Pl.’s Compl. at ¶ 7.
                                            2
Defendant contends that Plaintiff failed to show compliance with the applicable

statute of limitations.

      6.     Delaware is a notice pleading jurisdiction.2 Therefore, to survive a

motion to dismiss, a complaint only needs to give general notice of the claim

asserted.3 In deciding a motion to dismiss under Superior Court Rule of Civil

Procedure 12(b)(6) (“Rule 12(b)(6)”), the Court shall accept all well-pleaded

allegations as true and make all reasonable inferences in favor of the non-moving

party.4 Factual allegations, even if vague, are well-pleaded if they provide notice of

the claim to the other party.5 The Court should deny the motion if the claimant “may

recover under any reasonably conceivable set of circumstances susceptible of

proof.”6

      7.     As an alternative to dismissal under Rule 12(b)(6), a party may move

under Superior Court Civil Rule 12(e) (“Rule 12(e)”) for an order requiring the other

party to file a more definite statement. In deciding a motion under Rule 12(e), the

Court evaluates a complaint to see if it is “so vague or ambiguous that a party cannot

reasonably be required to frame a responsive pleading.”7


2
  Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
3
  Id.
4
  Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d
967, 968 (Del. 1978).
5
  Spence, 396 A.2d at 968.
6
  Id.
7
  Super. Ct. Civ. R. 12(e).
                                         3
      8.     Plaintiffs face unique challenges in toxic tort litigation because they are

often “unwittingly exposed to the hazardous substance years before any injury is

manifested” and find it difficult years later to identify the products to which they

were exposed.8 These challenges “may be considered at the pleading stage of the

litigation and may justify some departure from the pleading standards” typical in

other actions.9 When alleging that exposure to toxic substances took place at a

particular premises, this Court has held:

      [A] plaintiff may identify the premises at issue by: (1) describing its
      location with the degree of precision dictated by the circumstances of
      the claim; (2) the type of facility located on the premises and a
      description of the toxic substances used there; and (3) the activity on
      the premises that gave rise to the exposure.10

In addition, the Court should evaluate the pleading as a whole rather than considering

the individual allegations in a vacuum.11

      9.     Here, the Court finds that Plaintiff’s allegations regarding the toxic

substances to which he was exposed are sufficient to put Defendant on notice of the

claim and be able to frame a responsive pleading. With respect to the location at

issue, Plaintiff alleges that he was employed at the Defendant’s Roseville, California

facility. Plaintiff further alleges that he was working in the Defendant’s “yards,



8
  See In re Benzene Litigation, 2007 WL 625054, at *7 (Del. Super. Feb. 26, 2007).
9
  Id.
10
   Id. at *10.
11
   See id. at *11.
                                        4
buildings, locomotives, and along their right of ways” while employed at

Defendant’s Roseville, California facility.12 Plaintiff alleges that, as a machinist, he

was exposed to various toxic substances and carcinogens while maintaining and

repairing locomotives. Specifically, Plaintiff alleges that his work as a machinist at

Defendant’s facility exposed him to the following carcinogens:

      [C]leaning solvents such as mineral spirits; diesel fuel/fume/benzene
      from locomotives and other diesel powered equipment; rust and other
      heavy metals from grinding and cutting steel on the locomotives;
      creosote from the railroad ties; manganese from the electrical welding
      process; asbestos insulation and asbestos brake shoe dust and; rock dust
      from railroad ballast.13

      10.    Viewing the complaint as a whole, the Court finds that Plaintiff

sufficiently alleges that he was exposed to toxic substances and carcinogens while

working at Defendant’s facility in Roseville, California. Plaintiff described the

location at issue, the toxic substances to which he was exposed at that location, and

the activities he performed that gave rise to the exposure.14 These allegations are

sufficient to put Defendant on notice of Plaintiff’s claim and to be able to craft a

responsive pleading.

      11.    In addition, the Court rejects Defendant’s argument that Plaintiff failed

to show compliance with the applicable statute of limitations. This case arises under



12
   Pl’s Compl. at ¶ 6.
13
   Pl.’s Compl. at ¶ 7.
14
   See In re Benzene Litigation, 2007 WL 625054 at *10-*11.
                                        5
the Federal Employers Liability Act (“FELA”), which requires that actions be

brought within three years from the date the cause of action accrued.15 In cases such

as this, where the plaintiff may have been exposed to toxic substances years before

any symptoms arise, the United States Supreme Court has adopted a “discovery rule”

for determining the date the cause of action accrued.16 Under the “discovery rule”

the statute of limitations “begins to run when the plaintiff knows or has reason to

know of the existence and cause of the injury which is the basis of his action.”17

      12.    To that end, Plaintiff alleges, “Less than three (3) years before

Plaintiff’s Complaint was filed he first discovered that his cancer was caused or

contributed to by the negligence of the Defendant.”18 Plaintiff’s allegation is

consistent with the “discovery rule” and is sufficient at this early stage of the

litigation to show compliance with the statute of limitations.

      13.    Defendant argues that Plaintiff has the burden of proving compliance

with the statute of limitations in this FELA cause of action. However, the cases that

Defendant relies on to make this argument do not support the conclusion that

Plaintiff must definitively prove compliance with the statute of limitations at this



15
   45 U.S.C. § 56.
16
   See Matson v. Burlington Northern Santa Fe R.R., 240 F.3d 1233, 1235 (10th Cir.
2001) (citing United States v. Kubrick, 444 U.S. 111, 121-23 (1979)).
17
   Id. (quoting Indus. Constructors Corp. v. United States Bureau of Reclamation,
15 F.3d 963, 969 (10th Cir. 1994)).
18
   Pl.’s Compl. at ¶ 15.
                                         6
early stage of the litigation.19 In addition, Defendant has not cited to any case

wherein the court granted a motion to dismiss solely on the basis that the plaintiff

failed to prove compliance with the statute of limitations.20

      14.    Plaintiff’s complaint contains sufficient allegations regarding the toxic

substances to which he was exposed to put Defendant on notice of the claim and to

allow Defendant to frame a responsive pleading. In addition, Plaintiff’s allegation

regarding compliance with the statute of limitations is sufficient to meet Plaintiff’s

burden at this early stage of the litigation. Therefore, Defendant’s motion to dismiss

must be denied.




19
   In Matson, the district court granted the defendant’s motion for summary judgment
on statute of limitations grounds after discovery had taken place. In Frasure v.
Union Pacific R. Co., 782 F.Supp. 477 (C.D. Cal. 1991), the district court again
granted a defendant’s motion for summary judgment on statute of limitations
grounds based on its finding that the plaintiff would not be able to prove compliance
with the statute of limitations at trial. In Huffman v. Union Pacific Railroad, 675
F.3d 412 (5th Cir. 2012), the Fifth Circuit reversed and remanded to the district court
for judgment in favor of the defendant based on its finding that there was a lack of
evidence on causation at trial.
20
   Defendant cites Tompkins v. Union Pacific R. Co., 2012 WL 4643099 (E.D. Cal.
2012) for its argument that “courts have granted motions to dismiss where plaintiffs
fail to plead facts to show that the underlying litigation is within FELA statutes of
limitations.” However, in Tompkins, the plaintiff conceded that he could not show
compliance with the statute of limitations and was arguing that an equitable doctrine
should apply. Therefore, Tompkins does not support Defendant’s position.
                                             7
     NOW, THEREFORE, this 20th day of November, 2017, Defendant’s

Motion to Dismiss or for a More Definite Statement is hereby DENIED.

     IT IS SO ORDERED.

                                  Andrea L. Rocanelli
                                  ___________________________________
                                  The Honorable Andrea L. Rocanelli




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