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James L. Varner v. BNSF Railway Co.

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  • James L. Varner v. BNSF Railway Co.

    Date Decided: Mar 4th, 2011
    Decided By: South Dakota District Court (Federal)
    Court: United States District Court for the District of South Dakota
    Citation: 2011 WL 835887

    Background:
    This action arose out of injuries allegedly sustained byJames L. Varner ("Varner") while attempting to move a deer carcass off railroadtracks located near Edgemont, South Dakota.

    Varner brought a negligence action against his employer BNSFRailway Co. ("BNSF") under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. 51 seeking damages for pastand future economic and non-economic losses.

    Following discovery, BNSF filed a motion to exclude thetestimony of Dr. Michael D. Shinnick ("Dr. Shinnick"), an expert in the fieldof ergonomic safety in the workplace. The Court ordered a Daubert hearing to resolve BNSF's motion and the parties agreed to schedulethe hearing for December 30, 2010.

    Dr. Shinnick was unavailable to attend the scheduled Daubert hearing. Varner's counsel, G.Michael O'Neal ("O'Neal"), explained that Dr. Shinnick informed him one weekbefore the hearing that he would not be able to attend, and that he did notinform the Court because he thought the time could be used to conduct a "statusconference." O'Neal also requested the Court go forward with the hearing on thebasis of briefs and depositions. The Court denied his request stating that thepurpose of the Daubert hearing wasfrustrated by Dr. Shinnick's absence. As a result, the Court was forced toreschedule the hearing for March 16, 2011.

    BNSF then filed a motion for costs,expenses and attorney fees reasonably incurred as a result of themultiplication of the Daubert hearing.Varner failed to file a timely response.


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