213330P.pdf   02/16/2023  Edward Blackorby  v.  BNSF Railway Company
   U.S. Court of Appeals Case No:  21-3330
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Shepherd, Author, with Colloton and Grasz, Circuit Judges] 
   Civil case - Attorneys' Fees. For the court's prior opinions in this 
   Federal Railroad Safety Act case, see Blackorby v. BNSF Ry. Co, 936 F.3d 
   733 (8th Cir. 2019) and Blackorby v. BNSF Ry. Co, 849 F.3d 716 (8th Cir. 
   2017). Plaintiff prevailed at trial and was awarded $58,240 in damages, as 
   well as $570,771 in attorneys' fees. BNSF appeals the attorney fee award, 
   and this court reduces the award by $103,642; the district court did not 
   err in determining that plaintiff prevailed on his claim that he was 
   wrongfully retaliated against for reporting his workplace injury, even 
   though he dismissed his FELA claim; the court rejects BNSF's request for 
   pro rata reduction of fees based on the gulf between the damage award and 
   the fee award as the fees were largely drive by the protracted procedural 
   history of the case, and there is no indication the fees were the result 
   of an effort by plaintiff to run up fees based on the rancorous nature of 
   the dispute; however, plaintiff was not entitled to fees related to the 
   first trial as this court vacated the judgment in the first appeal because 
   of plaintiff's error in offering a jury instruction that contained a legal 
   error based on Eighth Circuit precedent; the district court should have 
   reduced the fee award by the amount expended on the first trial - 
   $103,642. Affirmed in part and reversed in part, with instructions to 
   reduce the fee award.