United States District Court, D. Kansas
NANCY LITTLE, individually and as personal representative of the estate of ROBERT L. RABE, Plaintiff,
THE BUDD COMPANY, Defendant.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
Nancy Little filed this action individually and as the
personal representative of the estate of her father, Robert
L. Rabe, against defendant The Budd Company. Plaintiff
alleges that her father, while working as a pipefitter for
the Atchison Topeka & Santa Fe Railroad
(“ATSF”), was exposed to asbestos-containing pipe
insulation that defendant had placed in the passenger
railcars it manufactured. And, she alleges, this exposure
caused her father to develop asbestos-related malignant
mesothelioma, causing his death on December 28, 2012.
December 4, 2018, the parties tried their case to a jury.
After presenting evidence for about five days, the jury
returned a verdict for plaintiff. Doc. 190 at 1. The jury
found defendant at fault, but apportioned only 7% of the
total fault to defendant. Id. The jury apportioned
the other 93% of fault to the decedent's
employer-ATSF-who is not a party to this case. Id.
Also, the jury awarded plaintiff $139, 500 in damages.
Id. at 2. On December 14, 2018, the court entered a
Judgment consistent with the jury's verdict. Doc. 191.
matter comes before the court on two post-trial motions-one
filed by each party. Plaintiff has filed a Motion for
Attorney's Fees and Expenses. Doc. 197. And defendant has
filed a Motion for Judgment as a Matter of Law. Doc. 192. For
reasons explained below, the court denies both motions.
Motion for Attorney's Fees and Expenses
Motion for Attorney's Fees and Expenses asks the court to
award sanctions against defendant under Federal Rule of Civil
Procedure 37(c)(2). Plaintiff seeks $3, 726.07 from defendant
for attorney's fees and expenses incurred from deposing
plaintiff's expert, Dr. Victor Roggli, on January 30,
If a party fails to admit what is requested under Rule 36 and
if the requesting party later proves . . . the matter true,
the requesting party may move that the party who failed to
admit pay the reasonable expenses, including attorney's
fees, incurred in making that proof. The court must so order
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to
believe that it might prevail on the matter; or
(D) there was other good reason for the failure to admit.
Fed. R. Civ .P. 37(c)(2). A district court has discretion to
decide whether an award of attorney's fees and expenses
is warranted under Rule 37(c)(2). Harolds Stores, Inc. v.
Dillard Dep't Stores, Inc., 82 F.3d 1533, 1555 (10th
asserts she deserves relief under Rule 37(c)(2) because
defendant failed to admit certain Requests for Admission that
asked defendant to make admissions about the specific
causation of the decedent's mesothelioma. Later,
plaintiff moved for partial summary judgment in her favor on
the issue whether asbestos exposure had caused the decedent
to contract mesothelioma. In response to that motion,
defendant didn't contest that the decedent was diagnosed
with mesothelioma and that asbestos ...