Railroad says man filed duplicate suits in Illinois, Arkansas

By Steve Gonzalez | Oct 29, 2008

Union Pacific has filed a motion to dismiss a Federal Employers' Liability Act (FELA) complaint, arguing the plaintiff has a similar suit in Arkansas.

Represented by Thomas Jones of Thompson Coburn in Belleville, Union Pacific argues Willis Demouchet has a pending case against them in both Madison County and Pulaski County in Arkansas.

The motion to dismiss was filed Oct. 22.

Union Pacific claims that prior to filing his FELA complaint on Sept. 9, in Madison County, Demouchet filed a two-count complaint against them on July 3 in Arkansas.

Demouchet's Madison County case alleges he was diagnosed with cancer after working with carcinogens throughout his employment with the railroad.

Demouchet claims he repaired railroad tracks for the company from 1997 through 2006. During his tenure, he was exposed to solvents, fumes, exhaust, chemicals and other airborne toxins and other carcinogens throughout his employment.

However, Union Pacific argues both count one in the Madison County complaint and the Arkansas complaint state the same cause of action by the same plaintiff and therefore should be dismissed pursuant to Section 2-619 of the Code of Civil Procedure.

In addition, the railroad argues Demouchet complaint should also be dismissed because of its failure to plead facts.

According to Union Pacific, neither count one nor count two are pleaded with sufficient facts to survive a motion to dismiss.

Union Pacific argues Demouchet alleges he was injured on Oct. 8, 2005, but fails to state how he was injured or what activity he was performing when injured.

The railroad also argues the complaint states several legal conclusions as to how they were negligent, but fails to state any factual allegations regarding what they did or failed to do that was negligent.

Demouchet claims that as a result of his exposure he has been diagnosed with cancer and other severe and permanent injuries that have caused him great pain and mental anguish.

While working in Fort Worth, Texas, on Oct. 8, 2005, Demouchet also injured his back, spine and body after he lifted a heavy piece, according to the complaint.

Gregory Tobin in East Alton represents Demouchet in the Madison County case.

Madison County Circuit Judge Andy Matoesian has yet to set a hearing date on the motion.

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