Kosin v. Union Pacific Railroad Company

Filing 46

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that defendant Union Pacific Railroad Company's Motion for Summary Judgment 38 is DENIED. IT IS FURTHER ORDERED that no later than October 15, 2018, counsel for the parties shall mee t and confer and file with the Court a revised joint proposed scheduling plan to set a schedule for all remaining discovery as well as all other outstanding matters, including referral to mediation and a trial date. Signed by District Judge Catherine D. Perry on 9/24/18. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHARM KOSIN, as the personal
representative of the Estate of
Marvin H. Kosin, Jr., deceased,
Plaintiff,
v.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.

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Case No. 4:17 CV 2435 CDP

MEMORANDUM AND ORDER
I have reviewed defendant Union Pacific Railroad Company’s motion for
summary judgment, and the materials and briefs submitted in support of each
party’s position, and find there to be genuine issues of material fact in dispute
between the parties, including but not limited to whether and/or when the deceased
Marvin H. Kosin, Jr., knew or should have known that the conditions of his
employment with Union Pacific caused his metastatic bladder cancer; whether
reasonable investigation would have revealed the cause of his cancer on or before
April 16, 2011; and, if so, whether the deceased could have but unreasonably failed
to investigate the cause of his cancer.
Based on the evidence and information before the Court, and drawing all
reasonable inferences in favor of plaintiff, the nonmoving party, I conclude that a

jury must determine as a factual matter when the claim for the deceased’s injury
accrued. Therefore, I cannot say that Union Pacific has established its right to
judgment with such clarity as to leave room for no controversy and that plaintiff is
not entitled to prevail under any discernable circumstances. Vette Co. v. Aetna
Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980).
Accordingly,
IT IS HEREBY ORDERED that defendant Union Pacific Railroad
Company’s Motion for Summary Judgment [38] is DENIED.
IT IS FURTHER ORDERED that no later than October 15, 2018, counsel
for the parties shall meet and confer and file with the Court a revised joint
proposed scheduling plan to set a schedule for all remaining discovery as well as
all other outstanding matters, including referral to mediation and a trial date.

___________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 24th day of September, 2018.

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