Marquez v. BNSF Railway Company

Filing 28

ORDER by Magistrate Judge Michael E. Hegarty on 7/27/2017 DENYING 6 BNSF's Motion for a More Definite Statement. The Complaint provides sufficient detail to permit BNSF to prepare a response. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01153-CMA-MEH
MARY MARQUEZ, individually and as the personal representative of the Estate of Robert L.
Balerio,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Defendant BNSF Railway Company seeks an order requiring Plaintiff Mary Marquez to file
an amended complaint pursuant to Federal Rule of Civil Procedure 12(e). Mot. for More Definite
Statement, ECF No. 6. Because the Complaint provides sufficient detail for BNSF to respond, the
Court denies BNSF’s motion.
BACKGROUND
Ms. Marquez initiated this action on May 9, 2017, individually and on behalf of her
deceased husband, Robert L. Balerio. ECF No. 1. Ms. Marquez claims Mr. Balerio was exposed
to a variety of toxic chemicals while he was employed by BNSF’s predecessor, Colorado and
Southern Railway. Id. at ¶¶ 4–5. According to Ms. Marquez, the cumulative exposure to at least
eight substances over Mr. Balerio’s nine-year employment caused him to develop esophageal
cancer. Id. at ¶¶ 6–7. The railway’s negligence alleged resulted in Mr. Balerio’s exposure to these
chemicals. Id. at ¶¶ 8–9.

On June 30, 2017, BNSF responded to the Complaint by filing the present Motion for a More
Definite Statement. ECF No. 6. BNSF contends the Complaint “lacks sufficient substantive
information to allow [it] to perform an adequate pre-answer investigation and provide a meaningful
answer.” Id. at 2. BNSF requests that this Court issue an order requiring Ms. Marquez to amend
her Complaint and include “the specific substances, the specific types of exposure(s), the specific
manner of the exposure(s), the locations of the exposure(s), and the specific time frames of the
exposure(s) alleged to have injured [Mr. Balerio].” Id. at 6.
Ms. Marquez objects to such an order. Resp. to Mot. for More Definite Statement, ECF No.
15. According to Ms. Marquez, the Complaint provides BNSF with sufficient information to
respond. Id. Moreover, Ms. Marquez contends she “cannot plead with the specificity that [BNSF]
demands simply because her husband did not know he was being exposed to carcinogens at various
points in his railroad career.” Id. at 3. BNSF filed its reply brief on July 19, 2017. ECF No. 23.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(e) provides:
A party may move for a more definite statement of a pleading to which a responsive
pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response. The motion must be made before filing a responsive
pleading and must point out the defects complained of and the details desired.
Therefore, “[r]equiring a more definite statement is appropriate when addressing unintelligible or
confusing pleadings.” Mechler v. United States, No. 12-1183-EFM-GLR, 2012 WL 5289627, at *1
(D. Kan. Oct. 23, 2012). “A motion for more definite statement should not be granted merely
because the pleading lacks detail; rather, the standard to be applied is whether the claims alleged are
sufficiently specific to enable a responsive pleading in the form of a denial or admission.” Emp’rs
Mut. Cas. Co. v. Downey Excavation, Inc., No. 10-cv-02043-MSK-KMT, 2011 WL 1335839, at *1
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(D. Colo. Apr. 7, 2011) (quoting Advantage Homebuilding, LLC v. Assurance Co. of Am., No. 032426-KHV, 2004 WL 433914, at *1 (D. Kan. Mar. 5, 2004)). Accordingly, Rule “12(e) motions are
discouraged unless the complaint is so unintelligible that defendants cannot understand the
allegations and are unable to respond.” Fed. Deposit Ins. Corp. v. Wise, 758 F. Supp. 1414, 1418
(D. Colo. 1991). The decision to grant or deny a motion for more definite statement rests within the
trial court’s sound discretion. Emp’rs Mut. Cas. Co., 2011 WL 1335839, at *1.
ANALYSIS
The Court holds that Ms. Marquez’s Complaint is sufficient to withstand a Rule 12(e)
motion. Ms. Marquez states that BNSF’s predecessor railway employed Mr. Balerio as a
trackman/machine operator from 1971 to 1980. Compl. ¶ 4. Further, she alleges that during Mr.
Balerio’s employment, he was exposed to “chemicals, solvents, diesel fuel/exhaust, benzene, heavy
metals, creosote, manganese, and rock/mineral dust and fibers,” the combination of which caused
his esophageal cancer. Id. at ¶¶ 5–6. She contends that Mr. Balerio’s cancer was not caused by any
one substance on any one day; instead, it was caused by the cumulative effect of the toxins. Id. at
¶ 7. Finally, Ms. Marquez pleads that Mr. Balerio was exposed to these substances, because the
railway negligently took or failed to take a variety of actions. Id. at ¶¶ 8–9. Therefore, the
Complaint informs BNSF of when Mr. Balerio was employed, his job title, the chemicals that
combined to cause his esophageal cancer, and the specific ways in which the railway acted
negligently. Although BNSF may prefer more detail, the Complaint is far from being “so
unintelligible that [BNSF] cannot understand the allegations.” Fed. Deposit Ins. Corp., 758 F. Supp.
at 1418.
The holdings of other judges within this District support the Court’s denial of BNSF’s

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motion. In Roddy York v. BNSF Railway Co., the court denied BNSF’s Rule 12(e) motion in a
nearly identical case. No. 17-cv-01088-RM-STV, 2017 WL 3017655 (D. Colo. July 14, 2017).
According to the court:
the Complaint is not so vague and ambiguous as to be unintelligible. It asserts that
Plaintiff worked as a brakeman/conductor for Defendant for fifteen years. Through
the course of his employment, he was exposed to various toxic substances and
carcinogens. The Complaint further provides eleven examples of Defendant’s alleged
negligence that caused Plaintiff's bladder cancer.
Id. at *1. Similarly, the Complaint in this case states Mr. Balerio’s occupation, his length of
employment, the substances to which he was exposed, and ten examples of how BNSF’s negligence
caused Mr. Balerio’s esophageal cancer. Compl. ¶¶ 4–9.
Conversely, in Maxton v. United States, the court granted the defendant’s motion for a more
definite statement. No. 12-cv-00383-WYD-BNB, 2013 WL 852379 (D. Colo. Mar. 6, 2013). The
plaintiff in that case alleged, “I were Assaulted and Beaten per AHSA S. Collins having this done
out of Retaliation from complaining about a [unintelligible word] medical kill on 2010 and per
having U.S. Senator Lindsay Graham having them send me to a urologist.” Id. at *1. The Court
required the plaintiff to amend his complaint, because he did “not make clear the actions or inactions
of each defendant and how those actions or inactions violate any particular statutory or constitutional
provision.” Id. at *2. Here, in contrast, Ms. Marquez provides at least ten of the railway’s actions
or inactions that caused Mr. Balerio’s injuries. See Compl. ¶ 9. For example, the railway allegedly
did not reduce, modify, or eliminate certain job duties so as to minimize exposure to chemicals; it
failed to test railroad facilities for the presence of toxic materials; and it did not test employees for
exposure to toxic chemicals. Id. Accordingly, unlike the plaintiff in Maxton, Ms. Marquez provides
sufficient detail for BNSF to respond.

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BNSF claims the Complaint is insufficient, because it does not state the “‘who, what, where,
when, why, and how’ of [Mr. Balerio’s] alleged exposures and his ‘related diseases.’” Reply 2. The
Court disagrees. Ms. Marquez alleges who was involved—Mr. Balerio and Colorado and Southern
Railway. Compl. ¶ 4. She states what caused the injury—exposure to a variety of chemicals over
time. Id. at ¶ 5. She lists 1971 to 1980 as the time frame for the injury. Id. at ¶ 4. Furthermore, Ms.
Marquez alleges how the exposure occurred—by touch, inhalation, or consumption. Id. at ¶ 6. Rule
8 does not require additional detail. Indeed, given that Mr. Balerio is deceased, Ms. Marquez may
not have the ability to obtain additional details except through discovery. To demand that Ms.
Marquez know precisely when and where her husband was exposed to each substance would
“require expansion of the pleadings through Rule 12(e) when discovery is the proper method for
obtaining information.” Warner v. Bank of Am., N.A., No. 11-cv-00342-LTB-KLM, 2011 U.S. Dist.
LEXIS 148447, at *2–3 (D. Colo. Oct. 25, 2011). Although the Complaint does not state where Mr.
Balerio worked, the precise location of his employment is not necessary to respond to the Complaint.
Moreover, BNSF’s assertion in its reply brief that Mr. Balerio worked in the “La Junta yard”
demonstrates it has at least some knowledge of where he worked.1 Reply 5 n.1.
BNSF also argues that the Complaint is improper and overly vague, because Ms. Marquez’s
counsel uses “the same boilerplate complaint” in other cases. Mot. for More Definite Statement 2.
Even assuming this is true, it does not follow that BNSF is unable to prepare a response. Indeed,
similar complaints may be appropriate, and even necessary, where employees were exposed to
substantially similar chemicals over comparable time frames. Moreover, to the extent BNSF argues

1

Contrary to BNSF’s contention, Ms. Marquez does not plead that Mr. Balerio worked in
the La Junta yard.
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that the boilerplate nature of the Complaint makes it overbroad, “[a] motion for more definite
statement should not be granted merely because the pleading lacks detail.”

Advantage

Homebuilding, LLC, 2004 WL 433914, at *1; Ivar v. Elk River Partners, LLC, 705 F. Supp. 2d
1220, 1231 (D. Colo. 2010) (denying a Rule 12(e) motion, because “[w]hile perhaps not always
drafted with crystalline precision, the amended complaint does not suffer from such blatant
ambiguity”).
BNSF cites Slinski v. CSX Transportation as a railway toxic tort case where the court granted
the defendant’s motion for a more definite statement. No. 07-CV-10270-DT, 2007 WL 1377931
(E.D. Mich. 2007). In that case, the court granted the Rule 12(e) motion, because the plaintiff failed
to specify exactly what type of injury the employee suffered. Id. at *1. Additionally, the plaintiff’s
use of the word “or” when listing the exposed chemicals indicated that the stated toxins were only
possible causes of the injury. Id. Accordingly, the court held that the complaint did not provide
specificity as to the type of chemicals that actually caused the injury. Id. at *1 n.1. Here, the
Complaint specifically states the injury—esophageal cancer. Compl. ¶ 6. Moreover, when listing
the chemicals to which Mr. Balerio was exposed, Ms. Marquez uses “and” instead of “or.” Id. at
¶ 5. Therefore, unlike Slinski, Mr. Balerio was allegedly exposed to all of the listed chemicals, not
just an indeterminable subset. Accordingly, because Ms. Marquez provides substantially greater
detail than did the plaintiff in Slinski, the Court does not find that case persuasive to its present
analysis.
Lastly, BNSF argues that Ms. Marquez’s counsel is attempting to shift the burden and
require “BNSF to disprove that [the] work place caused any disease or illness.” Reply 4. The Court
disagrees. At summary judgment and trial, Ms. Marquez will still carry the burden of proving that

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the combination of the asserted substances caused Mr. Balerio’s cancer. If she cannot present
evidence that at least some of these substances were present during Mr. Balerio’s employment and
contributed to his cancer, her claim will not survive summary judgment. Accordingly, the burden
remains on Ms. Marquez to prove each of her allegations by a preponderance of the evidence.
CONCLUSION
The Complaint provides sufficient detail to permit BNSF to prepare a response. As such,
the Court will not require Ms. Marquez to file an amended complaint with additional allegations.
Accordingly, BNSF’s Motion for a More Definite Statement [filed June 30, 2017; ECF No. 6] is
denied.
Entered and dated at Denver, Colorado, this 27th day of July, 2017.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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