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.