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Shearrer v. Union Pacific Railroad Co.

April 15, 2010


The opinion of the court was delivered by: Reagan, District Judge


Todd Shearrer, a locomotive conductor from Jefferson County, Missouri, filed suit in this Court against his former employer, Union Pacific Railroad Company (UP). Shearrer's complaint contains one negligence claim under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51, et seq. (Count I), plus a claim for violation of the Locomotive Inspection Act (LIA), 49 U.S.C. § 20701, et seq.

Shearrer alleges that he sustained permanent and debilitating lung injuries from a release of toxic fumes into the cab of locomotive engine while he was working "at Fults, Monroe County, Illinois" on December 28, 2007, during a trip from Dexter, Missouri to Dupo, Illinois. He seeks damages for past and future lost wages, past and future medical expenses, past and future pain and suffering, past and future fringe benefits, past and future "ability to perform normal household services" (Complaint, Doc. 2, p. 4), and inability to enjoy the normal pursuits of life.

UP answered the complaint in April 2009, after which the undersigned Judge set a firm trial date of June 7, 2010. The final pretrial conference will be conducted by the undersigned Judge on June 2, 2010.

A Scheduling and Discovery Order proposed by the parties and entered by Magistrate Judge Frazier imposed a February 12, 2010 discovery cut-off and a February 26, 2010 dispositive motion deadline (see Docs. 13, 13-1). That Order also set the timetable to disclose expert witnesses and written reports pursuant to Federal Rule of Civil Procedure 26(a)(2).

Plaintiff Shearrer designated his expert witnesses on September 25, 2009, including Dr. Leroy Grossman (an economist), Dr. Thomas Hyers (a physician from St. Louis who apparently treated and/or examined Plaintiff), Dr. Thomas Osimitz (a toxicologist from Virginia), Joel T. Robertson (apparently an expert from Texas on inspection, maintenance and repair of locomotives), and 8 other non-retained experts, all of whom appear to be treating physicians, nurses, or other medical personnel who "may be asked to testify at trial" (see Doc. 19).

Defendant UP designated its experts on January 22, 2010, including Dr. Phillip Goad (a toxicologist), Dr. David Hewitt (a physician specializing in occupational medicine), Dr. Myron Jacbos (apparently a pulmonary doctor who examined Plaintiff), Dr. James Crapo (a physician specializing in pulmonology), Dr. Thomas Ireland (an economist), June Blaine (a rehabilitation counselor and disability management specialist), Dr. William Jacbos (apparently an expert on inspection, maintenance and repair in the railroad industry), and 13 non-retained experts, all health care providers (see Doc. 30).

Defense experts were to have been disclosed December 1, 2009, but Plaintiff's counsel agreed to extend that disclosure deadline to January 15, 2010. For reasons not readily apparent, Plaintiff's counsel did not move to strike (or otherwise formally challenge via motion) the one-week-belated disclosure of the defense experts on January 22, 2010. Of course, the parties may stipulate to extensions of discovery deadlines that do not affect firm Court settings (which they often do unbeknownst to the Court), but they proceed at their own risk in doing so without reducing any agreement to writing and without obtaining Court approval. See FED.R.CIV.P. 29(b).

In February 2010, Shearrer's counsel moved to extend the deadline for dispositive motions. The Court denied that motion the following day, noting that the deadline was imposed nine months earlier via a proposed schedule submitted by the parties themselves.

The Order further noted (Doc. 36, emphasis added): The undersigned District Judge sets firm trial dates in civil cases and rarely grants continuances of those settings. If the Court extends the dispositive motion deadline and leaves the existing trial setting, that would give the parties more time for their work on the case (preparing and briefing the major motions) but severely contract the undersigned Judge's time in which to get those motions, once ripe, ruled on in advance of the ... final pretrial conference.

For these reasons, and because good cause has not been shown, the Court DENIES the motion to extend dispositive motion deadline (Doc. 35).

Clearly, this Order left the February 26, 2010 motion-filing deadline in place.

A series of motions quickly followed, along with a flurry of supporting briefs, responses and replies -- many with extensive documentary evidence attached. Plaintiff Shearrer moved for partial summary judgment on February 10th (Doc. 38). Defendant UP cross-moved for partial summary judgment (Doc. 45) and moved to exclude the opinions of two of Plaintiff's experts -- Osimitz and Hyers -- on February 26th (Doc. 43). The Court set briefing schedules on these motions (Docs. 42, 47).

One month after the motion-filing deadline elapsed, Plaintiff attempted to file a Daubert motion, which the Court promptly denied as untimely-filed, i.e., any such ...

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