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James L. Varner v. Bnsf Railway Company

March 4, 2011


The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge



This matter is before the court pursuant to defendant's motion for expenses and fees incurred as a result of a failed Daubert hearing*fn1 in the above-captioned case. (Docket 53). Plaintiff filed no response to defendant's motion, and the time for doing so has passed. Defendant's motion is ripe for adjudication.

FACTS AND PROCEDURAL HISTORY The court limits its recitation to those facts necessary to resolve defendant's pending motion. The court's recitation constitutes its findings of fact in support of this order. Additional findings of fact are contained in the court's discussion of the relevant case law and its application to this case.

On September 23, 2009, plaintiff James L. Varner brought suit against defendant BNSF Railway Company ("BNSF") under the Federal Employers'Liability Act ("FELA"), 45 U.S.C. § 51 et seq. (Docket 1). At the time of the alleged events giving rise to the complaint, BNSF employed Mr. Varner as a track inspector. Id. at ¶ 4. Mr. Varner alleges, on December 28, 2007, while inspecting the railroad track near Edgemont, South Dakota, he saw a large mule deer carcass on the main track. Id. at ¶¶ 4-7. Mr. Varner alleges he attempted to move the deer, but in the process lost his balance and fell down the ballast between the track and road. Id. at ¶¶ 12-16. Mr. Varner alleges he sustained injury to his right shoulder, the tendon in his right bicep, and two of his right ribs, requiring arthroscopic surgery to remove bone and tissue fragments. Id. at ¶¶ 17-18. Mr. Varner alleges his injuries likely will lead to the development of degenerative arthritis in his right shoulder, necessitating a future shoulder replacement and reducing his work-life expectancy. Id. at ¶ 19.

Mr. Varner alleges the negligent acts or omissions of BNSF violated BNSF's duty under FELA and caused his injuries. Id. at ¶¶ 21, 25, & 26. In particular, Mr. Varner points to the alleged failure of BNSF to do the following: provide adequate training and equipment to safely remove deer carcasses; promulgate and follow reasonable safety policies and procedures; provide adequate support from other employees to minimize his physical burden and risk of injury; and recognize his job duties were reasonably likely to cause injury. Id. at ¶ 23. Mr. Varner seeks an award of damages to compensate him for past and future economic and non-economic losses. Id. at ¶ 27.

On October 14, 2009, BNSF filed its answer, denying the allegations in the complaint and asserting various affirmative and other defenses. (Docket 9). Discovery commenced. On June 9, 2010, Mr. Varner served BNSF with his expert disclosures under Fed. R. Civ. P. 26(a)(2). (Docket 34). Mr. Varner disclosed his retainer of Dr. Michael D. Shinnick as an expert in the field of ergonomic safety in the workplace. (Docket 43 at p. 2). Mr. Varner timely served BNSF with a copy of Dr. Shinnick's report, in which Dr. Shinnick opined, in part, BNSF's acts or omissions "unreasonably and unnecessarily exposed [Mr. Varner] to the risk factors associated with acute injury." (Docket 43, Exhibit A at p. 13).

On August 23, 2010, BNSF filed a motion to exclude the testimony of Dr. Shinnick. (Docket 42). BNSF argued the testimony of Dr. Shinnick did not satisfy the requirements of Fed. R. Evid. 702 and 402 in the following respects: (1) Dr. Shinnick lacked the necessary knowledge, skill, education, training, or experience to qualify as an expert witness; (2) Dr. Shinnick did not base his opinions on scientific, technical, or other specialized knowledge;

(3) Dr. Shinnick did not base his opinions on substantial data, a rational and reliable foundation, or scientifically valid principles; and (4) Dr. Shinnick's opinions were not relevant to the issues in this case and constituted inadmissible legal conclusions. Id. at pp. 1-2. Mr. Varner resisted the motion in its entirety. (Docket 46).

The court found it necessary to schedule a Daubert hearing to resolve BNSF's motion. The court conferred with counsel for both parties to schedule the hearing. The court also informed counsel that, upon conclusion of the hearing, the court intended to hold a status conference to schedule the pretrial conference and trial in this case. On October 26, 2010, the court entered an order scheduling the Daubert hearing for December 30, 2010, a date agreed upon by the parties' counsel. (Docket 49).

On December 14, 2010, in response to a request for information by the court, counsel for both parties jointly e-mailed the court with information necessary to schedule the pretrial conference and trial. Counsel advised when they, their clients, and their witnesses, including expert witnesses, would be available for trial. After several e-mail communications between the court and counsel, the court ultimately suggested a pretrial conference date of May 16, 2011, and a beginning trial date of June 27, 2011. On December 28, 2010, counsel for both parties informed the court of their approval of the proposed dates.

As scheduled, the court convened for a Daubert hearing on December 30, 2010. Mr. Varner appeared by and through his counsel, G. Michael O'Neal, and Gregory Eiesland.*fn2 BNSF appeared by and through its counsel, Thomas Sattler.*fn3

The court first set out the legal standards governing the admissibility of evidence under Fed. R. Evid. 702. Counsel agreed with the court's recitation.

The court then turned to Mr. O'Neal, as the proponent of the challenged expert testimony, to proceed with his case. Mr. O'Neal informed the court Dr. Shinnick was not available to testify at the hearing and provided the following explanation:

First of all, Your Honor, Dr. Shinnick is not available as a witness to testify today because of the holidays. Part of the problem was travel and his own commitments and he simply could not make this trip. Plaintiff's counsel [and] I felt at the point in time we were also going to have a status conference, and consequently I felt that we needed to get that out of the way as well as have this hearing. I have filed Dr. Shinnick's deposition with the Court as well as the plaintiff's deposition. His ...

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