Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Millette, JJ., and Lacy, S.J.
JOSEPH C.B. HOLLINGSWORTH
OPINION BY
v. Record No. 090041 JUSTICE LAWRENCE L. KOONTZ, JR.
February 25, 2010
NORFOLK SOUTHERN RAILWAY COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
William D. Broadhurst, Judge
In this appeal, we consider whether a podiatrist is
qualified to render an expert opinion as to the causation of a
human physical injury. Specifically, we consider whether the
circuit court erred in granting the defendant’s motions in
limine to exclude the testimony of two podiatrists on the
basis that they were not medical doctors and, thus, were not
qualified to render expert opinions as to the cause of the
plaintiff’s alleged physical injuries. Consequently, we also
consider whether the court erred in granting the defendant’s
motion for summary judgment based upon the court’s rulings on
those motions in limine.
BACKGROUND
The material facts are not in dispute. Joseph C.B.
Hollingsworth filed a negligence action under the Federal
Employers’ Liability Act, 45 U.S.C. §§ 51-60 (2006 & Supp. I
2007), against his former employer Norfolk Southern Railway
Company (“Norfolk Southern”). Hollingsworth claimed that his
job duties for Norfolk Southern “required him to walk on large
ballast 1 and debris scattered throughout the yards and areas he
was working, causing injury to his . . . ankles, and feet.”
Hollingsworth designated two licensed podiatrists, Steve
G. Steffan and Charles Zelen, as expert witnesses. The
podiatrists would have testified that they treated
Hollingsworth’s foot condition, and that the injuries they
treated were caused by repeated walking on irregular surfaces
such as the ballast in the rail yards. Norfolk Southern filed
motions in limine, arguing that the podiatrists could not
testify as to the causation of Hollingsworth’s alleged
injuries because neither is a medical doctor. The circuit
court granted the motions in limine, finding that an opinion
concerning the causation of a human physical injury involves
making a diagnosis, which may be conducted only by a medical
doctor.
Norfolk Southern then moved for summary judgment, arguing
that because the podiatrists could not testify concerning
medical causation and because the time to designate experts
had elapsed, Hollingsworth could not prove that his alleged
injuries were caused by Norfolk Southern’s negligence. The
circuit court granted the motion for summary judgment, finding
1
Ballast is rock laid on the roadbed of a railroad track
for the purpose of providing foundation and facilitating
drainage. See Norfolk S. Ry. Co. v. Rogers, 270 Va. 468, 472,
621 S.E.2d 59, 61 (2005); Norfolk S. Ry. Co. v. Trimiew, 253
Va. 22, 25, 480 S.E.2d 104, 107 (1997).
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that without the medical causation testimony of the
podiatrists, Hollingsworth could not prove an essential
element of his case. We awarded Hollingsworth this appeal.
DISCUSSION
The principles guiding our resolution of the issues
presented in this appeal are well established. “Generally, a
witness is qualified to testify as an expert when the witness
possesses sufficient knowledge, skill, or experience to make
the witness competent to testify as an expert on the subject
matter at issue.” Velazquez v. Commonwealth, 263 Va. 95, 103,
557 S.E.2d 213, 218 (2002). “Whether to permit a witness to
qualify as an expert on a given subject matter is an issue
submitted to the discretion of the trial court, and on appeal
we will not reverse the trial court’s ruling in this regard
unless it plainly appears that the witness was not qualified.”
Conley v. Commonwealth, 273 Va. 554, 560, 643 S.E.2d 131, 134
(2007).
“Notwithstanding these general principles, we have
concluded that certain subject matter is exclusive to a
particular field of expertise such that only witnesses trained
as professionals in that field of expertise are qualified to
render expert opinions regarding that subject matter.”
Fitzgerald v. Commonwealth, 273 Va. 596, 602, 643 S.E.2d 162,
164 (2007). Thus, we have repeatedly held that only a medical
3
doctor is qualified to testify about the cause of a human
physical injury. See Id. at 602, 643 S.E.2d at 164-65;
Conley, 273 Va. at 561, 643 S.E.2d at 134; Norfolk & W. Ry.
Co. v. Keeling, 265 Va. 228, 235, 576 S.E.2d 452, 457 (2003);
John v. Im, 263 Va. 315, 321, 559 S.E.2d 694, 697 (2002);
Combs v. Norfolk & W. Ry. Co., 256 Va. 490, 496-97, 507 S.E.2d
355, 358-59 (1998). But see Velazquez, 263 Va. at 104, 557
S.E.2d at 218-19 (allowing a sexual assault nurse examiner
(“SANE”) to express an opinion as to the cause of physical
injuries in the context of a sexual assault).
In Combs, we held that the trial court abused its
discretion in permitting a biomechanical engineer to give an
expert opinion regarding the cause of the plaintiff’s ruptured
disc. 256 Va. at 497, 507 S.E.2d at 359. Noting that “the
question of causation of a human injury is a component part of
a diagnosis,” and that the statutory definition of the
“practice of medicine” contained in Code § 54.1-2900 includes
making a “diagnosis,” we concluded that the question of
causation of a human injury is a part of the practice of
medicine. Id. at 496, 507 S.E.2d at 358. Thus, we
established the general rule that only a medical doctor is
qualified to give expert testimony about the cause of human
physical injury. Id.
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In John, we held that the trial court properly ruled that
that a licensed Ph.D. psychologist was not qualified to give
an opinion that the plaintiff had suffered a “mild traumatic
brain injury . . . as a result of the impact and the sudden
acceleration-deceleration of her head” in a motor vehicle
accident. 263 Va. at 318, 321, 559 S.E.2d at 695, 697. We
again reasoned that an opinion regarding the causation of a
human physical injury is a component part of a diagnosis,
which is a part of the practice of medicine, and because the
psychologist was not a medical doctor, he was not qualified to
give an expert opinion regarding the cause of the plaintiff’s
injury. Id. at 321, 559 S.E.2d at 697.
In Keeling, we concluded that the trial court did not
abuse its discretion in disallowing the testimony of a
biomechanical engineer “that fistulas were generally caused by
infection that caused bone or tissue to deteriorate.” 265 Va.
at 235, 576 S.E.2d 457. Stressing that Combs and John stand
for the proposition that “only a medical doctor could give
expert testimony about the cause of a human physical injury,”
we held that the testimony given by the biomechanical engineer
came within the prohibition recited in Combs and John. Id.
More recently, in Conley, we considered whether the trial
court erred in permitting a licensed clinical social worker to
testify concerning the diagnosis and treatment of post-
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traumatic stress disorder (“PTSD”). 273 Va. at 557, 643
S.E.2d at 132. Similarly, in Fitzgerald, we considered
whether the trial court erred in permitting a licensed
professional counselor to testify that the alleged victim
suffered from PTSD. 273 Va. at 600, 643 S.E.2d at 163. In
both cases, Combs and John were distinguished by the fact that
those cases involved causation issues regarding human physical
injuries, while Conley and Fitzgerald involved PTSD, a mental
disorder. See Conley, 273 Va. at 561, 643 S.E.2d at 135
(“Combs and John do not . . . establish a categorical rule
. . . that only a medical doctor may qualify to render an
expert opinion regarding the diagnosis of PTSD or any other
recognized mental disorder.”) Nonetheless, in reaching these
decisions, we applied the same statutory analysis employed in
Combs and John, finding that both licensed clinical social
workers and licensed professional counselors were statutorily
authorized to “diagnose” mental disorders and, thus, were
qualified to provide expert testimony. See Fitzgerald, 273
Va. at 602-03, 643 S.E.2d at 165 (citing Code § 54.1-3500);
Conley, 273 Va. at 562, 643 S.E.2d at 135 (citing Code § 54.1-
3700).
In the present case, Hollingsworth asserts that the
intent of the General Assembly is that podiatrists may engage
in the diagnosis of ailments involving the foot and ankle and,
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thus, are qualified under Combs and its progeny to render an
expert opinion as to the cause of physical injuries to the
foot and ankle. Alternatively, Hollingsworth contends that
this Court should, as in Velazquez, recognize an exception to
the general rule that only a medical doctor is qualified to
testify as an expert regarding the cause of a human physical
injury.
Norfolk Southern responds that the General Assembly has
drawn a clear distinction between the definition of the
“practice of medicine,” which includes “diagnosis,” and the
“practice of podiatry,” which does not. Consequently, Norfolk
Southern maintains that podiatrists are not qualified to
testify as experts regarding the cause of a human physical
injury. We agree with Norfolk Southern.
Code § 54.1-2900 defines the scope of practice for
medical doctors and podiatrists. The “[p]ractice of medicine”
is defined as “the prevention, diagnosis and treatment of
human physical or mental ailments, conditions, diseases, pain
or infirmities by any means or method.” Code § 54.1-2900
(emphasis added). In contrast, the “[p]ractice of podiatry”
is defined as “the medical, mechanical and surgical treatment
of the ailments of the human foot and ankle.” Id. (emphasis
added).
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When interpreting statutes, we must ascertain and give
effect to the General Assembly’s intention, which is to be
ascertained from the plain meaning of the words used, unless a
literal interpretation would result in a manifest absurdity.
See Crawford v. Haddock, 270 Va. 524, 528, 621 S.E.2d 127, 129
(2005); Horner v. Dep't of Mental Health, Mental Retardation,
& Substance Abuse Servs., 268 Va. 187, 192, 597 S.E.2d 202,
204 (2004). Moreover, “we must assume that the General
Assembly chose, with care, the words it used in enacting the
statute, and we are bound by those words when we apply the
statute.” Halifax Corp. v. First Union National Bank, 262 Va.
91, 100, 546 S.E.2d 696, 702 (2001). “Additionally, when the
General Assembly includes specific language in one section of
a statute, but omits that language from another section of the
statute, we must presume that the exclusion of the language
was intentional.” Id.
Applying these principles to the statutory definitions at
issue in this case, we find that while both medical doctors
and podiatrists may engage in the treatment of a physical
injury to the human foot and ankle, only a medical doctor may
engage in the diagnosis of that injury so as to qualify to
render an expert opinion regarding the causation of that
injury. Accordingly, Steffan and Zelen were qualified to
render an expert opinion concerning the treatment they
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provided to Hollingsworth. The podiatrists, however, are not
medical doctors and, thus, were not qualified to render an
expert opinion as to the causation of Hollingsworth’s alleged
injuries. 2
Hollingsworth, however, contends that the word “medical”
in the definition of the practice of podiatry means that the
General Assembly intended to incorporate the practice of
medicine definition into the definition of podiatry. An
analysis of the context in which the word “medical” is used
suggests otherwise. See City of Virginia Beach v. Board of
Supervisors of Mecklenburg County, 246 Va. 233, 236-37, 435
S.E.2d 382, 384 (1993) (when determining statutory intent, the
context may be examined by considering other language used in
the statute).
The “[p]ractice of podiatry” definition describes the
forms of treatment–medical, mechanical, and surgical–a
2
The statutory scheme related to chiropractors further
supports our analysis. The definition of the “[p]ractice of
chiropractic” does not contain the word “diagnosis.” See Code
§ 54.1-2900. Thus, in accord with our prior holdings,
chiropractors would be prohibited from giving medical
causation testimony. The General Assembly, however, has
enacted Code § 8.01-401.2, which provides that a chiropractor
“may testify as an expert witness in a court of law as to
etiology, diagnosis, prognosis, and disability . . . .”
(Emphasis added.)
The General Assembly has not enacted similar legislation
relating to podiatrists; however, we take notice of proposed
legislation that would amend and reenact the definition of
podiatry. See S.B. 82, Va. Gen. Assem. (Reg. Sess. 2010);
H.B. 723, Va. Gen. Assem. (Reg. Sess. 2010).
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podiatrist can use in treating ailments of the human foot and
ankle. Code § 54.1-2900. Surgical treatment generally
involves the repair of the foot and ankle by an operative
procedure. Mechanical treatment generally involves repair or
rehabilitation by a device, such as ankle braces or footpads.
Medical treatment generally involves treatment by use of
medicine. Simply put, the word “medical” modifies
“treatment.” It does not mean that a podiatrist’s scope of
practice is defined as broadly as that of a medical doctor.
Furthermore, if the General Assembly intended the “[p]ractice
of podiatry” to be equivalent to the “[p]ractice of medicine,”
it could have easily used the same language in defining the
two practices. Instead, it clearly chose different language.
Again, “[w]e must assume that the General Assembly chose, with
care, the words it used in enacting the statute, and we are
bound by those words when we apply the statute.” Halifax
Corp., 262 Va. at 100, 546 S.E.2d at 702.
We also reject Hollingsworth’s contention that because
podiatrists are members of the “[h]ealing arts” they may
diagnose ailments involving the foot and ankle. See Code
§ 54.1-2903. The term “[h]ealing arts” is defined broadly as
the “arts and sciences dealing with the prevention, diagnosis,
treatment and cure or alleviation of human physical or mental
ailments, conditions, diseases, pain or infirmities.” Code
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§ 54.1-2900. This definition is a general “catch-all” meant
to encompass all healthcare practitioners, including
respiratory care practitioners, radiologic technologists,
athletic trainers, and various others who would not be
qualified to render an expert opinion as to the cause of a
physical injury. See Code § 54.1-2903 (“Any person shall be
regarded as practicing the healing arts who actually engaged
in such practice as defined in this chapter . . . .” (emphasis
added)). In a situation where one statute speaks to a subject
generally and another deals with that subject specifically,
the more specific statute prevails. See Crawford, 270 Va. at
528, 621 S.E.2d at 129; Frederick County School Board v.
Hannah, 267 Va. 231, 236, 590 S.E.2d 567, 569 (2004). Thus,
we conclude that the specific definition of the “[p]ractice of
podiatry” prevails over the general language of the “[h]ealing
arts.”
We also decline to recognize another exception to the
general rule that only a medical doctor may render an expert
opinion regarding the cause of a human physical injury. In
Velazquez, we held that although the SANE was not a medical
doctor, she was qualified to render an expert opinion
concerning the “causation of injuries in the context of an
alleged sexual assault.” 263 Va. at 104, 557 S.E.2d at 218.
As we subsequently explained in John:
11
Because our holding in Velazquez is limited to the
unique context of a SANE’s expert opinion concerning
the causation of injuries in a sexual assault case,
that holding does not change the general rule . . .
that only a medical doctor may give an expert
opinion about the cause of a physical human injury.
263 Va. at 321 n.2, 559 S.E.2d at 697 n.2. (emphasis added).
We are of opinion that, unlike the circumstances in Velazquez,
the circumstances of the present case do not warrant an
exception to the general rule. Velazquez, 263 Va. at 103-04,
557 S.E.2d at 218.
To allow podiatrists to testify as experts regarding the
causation of human physical injuries would require us to add
“diagnosis” to the statutory definition of the “[p]ractice of
podiatry.” Such amendatory action must be left to the General
Assembly. See Carter v. Nelms, 204 Va. 338, 346, 131 S.E.2d
401, 406-07 (1963) (“We must determine the legislative intent
by what the statute says and not by what we think it should
have said”); Virginia Transit Co. v. Tidd, 194 Va. 418, 425,
73 S.E.2d 405, 409 (1952) (“It is not the function of the
[C]ourt to legislate”).
CONCLUSION
For these reasons, we hold that the circuit court did not
err in granting Norfolk Southern’s motions in limine to
exclude the medical causation testimony of the two
podiatrists. Accordingly, we will affirm the circuit court’s
12
judgment awarding summary judgment in favor of Norfolk
Southern.
Affirmed.
CHIEF JUSTICE HASSELL dissents.
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