Copyright 2007 Thomson Delmar Learning. DORN v. BURLINGTON NORTHERN SANTA FE RAILROAD CO. 397 F.3d 1183 (9th Cir. 2005) Case Brief Copyright 2007 Thomson Delmar Learning. All Rights Reserved.

Copyright 2007 Thomson Delmar Learning. DORN v. BURLINGTON RR. PURPOSE: This case discusses hedonic damages. Copyright 2007 Thomson Delmar Learning. All Rights Reserved.

Copyright 2007 Thomson Delmar Learning. DORN v. BURLINGTON RR. CAUSE OF ACTION: A widow whose husband had been killed when his truck was struck by a train sued the railroad for wrongful death and survivorship damages. Copyright 2007 Thomson Delmar Learning. All Rights Reserved.

Copyright 2007 Thomson Delmar Learning. DORN v. BURLINGTON RR. FACTS: Dorn was killed when the truck he was driving was struck by a train. His widow brought a wrongful death and survivorship action requesting funeral expenses, lost wages, and benefits, and hedonic damages. At trial the court allowed plaintiff’s expert to testify concerning hedonic damages but did not permit defendant’s expert to testify. The jury awarded $1,000,000 in wrongful death and $1,008,000 in survivorship damages. Copyright 2007 Thomson Delmar Learning. All Rights Reserved.

Copyright 2007 Thomson Delmar Learning. DORN v. BURLINGTON RR. ISSUE: Whether the trial court erred in permitting plaintiff’s expert to testify on hedonic damages but not defendant’s expert. Copyright 2007 Thomson Delmar Learning. All Rights Reserved.

Copyright 2007 Thomson Delmar Learning. DORN v. BURLINGTON RR. HOLDING: Yes. Assuming hedonic damages are recoverable under Montana law, and that plaintiff’s expert witness testimony was admissible, the district court erred in excluding defendant’s expert witness testimony. Copyright 2007 Thomson Delmar Learning. All Rights Reserved.

Copyright 2007 Thomson Delmar Learning. DORN v. BURLINGTON RR. REASONING: Federal diversity jurisdiction required the court to determine whether “hedonic damages” were recoverable in Montana. Lacking a definitive decision from the Montana Supreme Court, the court of appeals (fed) held not unreasonable. Plaintiff’s expert testified concerning the risk premium an employee demands to work in a risky job and the cost of government safety programs. The court expressed some skepticism concerning this measure of hedonic damages but stated that this could be decided during a new trial. The trial court abused its discretion in not allowing the defendant’s expert to testify because the plaintiff’s expert testimony might be discredited by the defense expert witness. The jury would determine the credibility of the two expert witnesses. A new trial was granted. Copyright 2007 Thomson Delmar Learning. All Rights Reserved.