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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


    This action arose out of injuries allegedly sustained by
    James L. Varner ("Varner") while attempting to move a deer carcass off railroad
    tracks located near Edgemont, South Dakota.

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

    Following discovery, BNSF filed a motion to exclude the
    testimony of Dr. Michael D. Shinnick ("Dr. Shinnick"), an expert in the field
    of ergonomic safety in the workplace. The Court ordered a Daubert hearing to resolve BNSF's motion and the parties agreed to schedule
    the 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 week
    before the hearing that he would not be able to attend, and that he did not
    inform the Court because he thought the time could be used to conduct a "status
    conference." O'Neal also requested the Court go forward with the hearing on the
    basis of briefs and depositions. The Court denied his request stating that the
    purpose of the Daubert hearing was
    frustrated by Dr. Shinnick's absence. As a result, the Court was forced to
    reschedule the hearing for March 16, 2011.

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