Norfolk Southern Ry. Co. v. Rogers

Present: All the Justices

NORFOLK SOUTHERN RAILWAY COMPANY,
SUCCESSOR IN INTEREST TO NORFOLK AND
WESTERN RAILWAY COMPANY

v. Record No. 050160 OPINION BY JUSTICE CYNTHIA D. KINSER
November 4, 2005
DALE ROGERS

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge

This appeal involves an action brought by Dale Rogers

under the Federal Employers’ Liability Act (FELA), 45

U.S.C. §§ 51–60 (2000), against Norfolk Southern Railway

Company.1 Rogers alleged that, during his employment at

Norfolk Southern, he was exposed to both asbestos and

silica, Norfolk Southern knew or should have known about

such exposure, and despite such knowledge, Norfolk Southern

failed to provide him with a reasonably safe place to work.

A jury returned a verdict in favor of Rogers with regard to

his silicosis claim.2

On appeal, Norfolk Southern challenges the admission

of certain testimony by Richard A. Vogel, Jr., an

1
In 1982, Southern Railway and Norfolk and Western
Railway merged. They are currently known as Norfolk
Southern Railway Company. See Mason Y. Cooper, Norfolk
Western Historical Society, An Introduction to the Norfolk
& Western Railway, http://www.nwhs.org/about_nw.html (last
visited Oct. 6, 2005).
2
At trial, the circuit court granted Norfolk
Southern’s motion to strike the evidence regarding Rogers’
asbestosis claim.
industrial hygienist who testified as an expert on behalf

of Rogers, as well as the sufficiency of the evidence

supporting the jury verdict. We find that Vogel’s

challenged testimony lacks an adequate factual foundation

and that, without his testimony, the evidence is

insufficient as a matter of law on the issue of Norfolk

Southern’s negligence. Thus, we will reverse the circuit

court’s judgment in favor of Rogers.

I. FACTS AND PROCEEDINGS

Rogers was employed as a “maintenance of way” laborer

for Norfolk Southern between 1981 and 1998.3 Maintenance of

way crews are responsible for the upkeep and maintenance of

the railroad track structures to ensure the safe passage of

trains. Rogers worked in the maintenance of way department

during his entire career with the railroad. He spent about

eight years of that time working outside the Tidewater area

of Virginia in locations such as West Virginia and Ohio.

Rogers’ work on the railroad tracks sometimes involved

rock known as “ballast,” which provides a foundation and

drainage for railroad tracks. Different railroads use

3
Rogers’ employment with Norfolk Southern was not
continuous. From 1983 until 1984, Rogers worked for Diesel
Injection as a sandblaster; during 1984, he worked at
Jamestown Sheet Metal as a helper; and from 1984 until
1986, he worked for Norfolk Shipbuilding and Drydock
Company as a laborer. Rogers returned to the railroad in
1986.

2
different types of rock as ballast, and the silica content

of the rock varies depending on its type. Rogers stated

that, during the course of his employment with Norfolk

Southern, the composition of the ballast used remained

consistent and “[y]ou [could] see sparkles on most of it.”

Rogers’ crew dumped ballast on the railroad tracks in

different ways depending on the type of railroad car

containing the ballast. Some cars required workers to

shovel the ballast from inside the car through an opening

to other workers waiting outside the railroad car who then

controlled the flow of ballast with ropes. Other cars

dumped the ballast directly onto the tracks. Rogers

testified that his job was dusty, and that dumping ballast

on the tracks was the dustiest aspect of his duties.

According to Rogers, the second dustiest job was operating

a piece of equipment called a “double broom,” which swept

the tracks forwards and backwards after the ballast had

been dumped. Other tasks performed by Rogers included

repairing the tracks, welding damaged track sections,

removing railroad ties, and installing switch panels. From

time to time, he also operated a “ballast regulator,” which

was used to get a sufficient amount of ballast back in the

track after a repair, and an “undercutter,” a machine used

3
to remove old ballast from a track before new ballast was

dumped.

Rogers explained that the dust associated with his

various jobs on the maintenance of way crew came from under

the tracks, from the dirt surrounding the tracks, and from

the ballast. He related that his clothes were covered with

dust and dirt after a typical shift of working on the

tracks. Because Rogers worked on a “section gang,” his

exposure to ballast was not continuous; he might be exposed

one day and not the next. By the 1990’s, Rogers was not

dumping ballast on a regular basis.

In 2003, Rogers began experiencing some shortness of

breath. He saw Dr. Richard C. Bernstein, a pulmonologist,

in July 2003. Dr. Bernstein diagnosed Rogers as having

“early silicosis” – “destruction of the lung[s] from

silica.”4 Dr. Bernstein based his opinion on Rogers’

description of his occupational history and exposure to

dust, chest x-rays, and breathing tests. He opined that

Rogers’ silicosis was caused by exposure to silica while

working on the railroad track.

4
The diagnosis of silicosis was disputed at trial.
Norfolk Southern introduced testimony from four medical
experts who each opined that Rogers does not have
silicosis. The sufficiency of the evidence regarding the
diagnosis of silicosis is not an issue on appeal.

4
 On the issue of Norfolk Southern’s negligence, Rogers

called Richard A. Vogel, Jr. as an expert in the field of

industrial hygiene. In developing his opinions, Vogel

reviewed “[a] number of depositions, answers and questions

related to interrogatories, medical histories, work

histories taken by a physician,” and excerpts from

historical documents recording various proceedings of the

Association of American Railroads (AAR).5 Vogel also spoke

with Rogers about his work history and watched a video

depicting a maintenance of way crew dumping ballast.6

Vogel began by discussing portions of the AAR

historical documents. The documents demonstrated that, as

5
The AAR is a professional organization of freight
railroads, Amtrak, and other rail-related companies.
Association of American Railroads,
http://www.aar.org/About_AAR/about_aar.asp (last visited
Oct. 6, 2005). The historical documents are the product of
meetings held beginning in the 1930’s for railroad surgeons
and medical personnel to discuss medical problems known to
the railroads.
6
Rogers introduced the video into evidence. The video
depicted ballast being dumped at an undisclosed location on
an unidentified railroad line and did not involve Rogers’
maintenance of way crew. In the video, there was a
noticeable difference between the visible dust surrounding
those employees working alongside the equipment that was
dumping the ballast and those working in front of it; the
employees in front were working in less visible dust.
Notably, Vogel testified, based on his discussions with
Rogers, that the majority of the work performed by Rogers
“appeared to be working at the ground level with a shovel
in hand in front of the equipment.”

5
early as 1932, the AAR was concerned about the hazards of

exposure to silica dust. Reading from the documents, Vogel

testified that “[p]neumoconiosis, derived from pneumo,

[meaning] lung, and konis, [meaning] dust, is a condition

that may be caused by any kind of dust entering the lung,

but we as railroad surgeons are undoubtedly more interested

in silicosis and asbestosis than any other types.” He

continued, “[s]ilicosis is caused by breathing free silica

into the lungs.” The documents also stated that silicosis

is a dust disease and a person can contract it only by

breathing silica dust.

Based on the information found in the AAR historical

documents, Vogel opined that the railroad industry, as of

1935, had recommended standards for industrial hygiene with

regard to silica exposure. Those standards included

educating workers about the hazard, using methods to limit

exposure to dust, providing respirators to workers, using

ventilation to control dust levels, using certain handling

methods to reduce the emission of dust, and taking

measurements to determine the concentration of hazardous

material in the air.

Continuing, Vogel testified that the applicable

industrial hygiene standards in place during Rogers’

employment period were the Occupational Safety & Health

6
Administration (OSHA) standards.7 29 C.F.R. 1910.1000

(2000). OSHA regulates worker exposure to silica-

7
Silica exposure is not as heavily regulated as
exposure to asbestos. See 29 C.F.R. § 1910.1001 (2000).
In 1978, OSHA released a program directive to provide
guidelines for inspecting and, where necessary, for issuing
citations with regard to exposure to silica in the
workplace. Occupational Safety & Health Administration,
CPL 02-02-007, Program Directive #300-3, Crystalline Silica
(1978), available at
http://www.osha.gov/sltc/silicacrystalline/standards.html
(follow “Crystalline Silica” hyperlink) (last visited Oct.
6, 2005) (hereinafter Directive #300-3). Pursuant to
Directive #300-3, “employee exposure to airborne
crystalline silica shall not exceed an 8-hour time-weighted
average limit (variable) as stated in 29 CFR 1910.1000,
Table Z-3 or a limit set by a state agency whenever a
state-administered Occupational Safety and Health Plan is
in effect.” Id. Thus, an employer is not in violation
unless employees are exposed to silica in excess of the
permissible exposure limits.
Directive #300-3 also provides indicators as to when
an employer should test for possible excessive exposure to
silica:
(i) Any information or observations which would
indicate employee exposure to silica or other
substances;
(ii) Any measurement of airborne silica;
(iii) Any employee complaints of symptoms which
may be attributable to exposure to silica or
other substances;
(iv) Any production, process, or control change
which may result in an increase in the airborne
concentration of silica, or whenever the employer
has any other reason to suspect an increase in
the airborne concentrations of silica.
Id. If testing is undertaken and exposure is found to be
above the permissible limits, Directive #300-3 outlines the
steps an employer should take to minimize exposure:
The first mandatory requirement is that employee
exposure be eliminated through the implementation
of feasible engineering controls. After all such
controls are implemented and they do not control
to the permissible exposure limit, each employer

7
containing materials, and the allowable silica level has

been constant since 1972. Vogel explained that the level

of allowable silica is “based on the percentage of silica

in a compound. Ten milligrams per cubic meter divided by

the percentage of silica plus two, so it’s a moving target.

The higher the silica content in the material, the lower

the level.”

To perform this calculation, the silica content of the

material being tested must be known. On direct

examination, Vogel was asked:

Q: Is it essential to the calculation to know
what the silica content is of the material you’re
testing?

A: You have to know, otherwise all you’re
evaluating is exposure to airborne dust.

Q: And that could be from any source?

A: True.

During both his direct testimony and cross-examination,

Vogel admitted that he did not know the type of rock that

Rogers was exposed to during his employment with Norfolk

must rotate its employees to the extent possible
in order to reduce exposure. Only when all
engineering or administrative controls have been
implemented, and the level of respirable silica
still exceeds permissible exposure limits, may an
employer rely on a respirator program . . . .

Id. (emphasis added). Engineering controls include
suppressing dust by wetting down the offending substance
(in this case the ballast) and proper ventilation. Id.

8
Southern, nor did he know its silica content.8 He agreed

that “[i]n order . . . to state whether somebody’s at risk,

you need to know the volume of the substance they were

exposed to” and that determination is made by taking an air

sample and measuring that sample against the applicable

“threshold limit value.” Vogel stated that he had not

conducted testing with regard to either Rogers’ work or

similar work performed by other maintenance of way crews.

Nevertheless, Vogel testified that “[v]isible dust is an

indication that there are no controls or limited control

measures in effect . . . [and i]f you can see visible dust,

there’s likely to be a much larger percentage of dust that

is not visible to the naked eye.” According to Vogel, “[a]

visible dust cloud is an indicator of conditions that could

generate a respiratory hazard and it’s something that

should trigger sampling.” (Emphasis added.)

8
During direct examination, Vogel was asked whether
“Mr. Rogers worked with or around silica-containing
products?” Vogel replied, “I believe he did. I’ve seen
material safety data sheets from a number of companies
supplying ballasts for railroad operations that indicated
silica in their materials at varying percentages.” Vogel
testified that he had no “specific firsthand knowledge of
the materials that Norfolk Southern purchased that Mr.
Rogers would have been using during his employment.”
Sustaining Norfolk Southern’s motion to strike this
testimony, the circuit court instructed the jury to
disregard it. Contrary to Rogers’ argument, Vogel did not
indicate that he relied on material safety data sheets in
formulating his opinions in this case.

9
 Even though he did not know the type of ballast Rogers

worked with or its silica content, Vogel opined that

Norfolk Southern failed to comply with industrial hygiene

standards relating to exposure to silica dust because

Norfolk Southern never warned Rogers about the hazards of

working with ballast. Furthermore, according to Vogel,

Norfolk Southern did not train Rogers in the proper

handling of the silica-containing materials, provide

workers with respiratory protection, or conduct air

samples. Finally, Rogers asked Vogel:

Q: [B]ased on your education, training and
certification as an industrial hygienist, based
on your review of the existing relevant
literature, based on your knowledge of railroad
industry practices, based on your viewing of the
videotape depicting ballast dumping that is
admitted as Plaintiff’s Exhibit 1, based on your
discussions with Mr. Rogers concerning his work
history from 1981 to 1997, based on the then
existing OSHA permissible exposure limits, based
on the applicable railroad industry standards in
effect during the period of his employment, do
you have an opinion as to a reasonable degree of
industrial hygiene certainty as to whether or not
Mr. Rogers was exposed to silica dust during the
years of his employment with Norfolk Southern in
an amount that exceeded a reasonably safe level?

A: Based on all those factors, yes, I believe he
did.

Norfolk Southern objected to this question on the

basis that an adequate foundation had not been

established for Vogel’s opinion. The circuit court

10
overruled the objection and allowed that question

along with the following one:

Q: And, Mr. Vogel, based on all those same
things . . . do you have an opinion to a
reasonable degree of certainty in the field of
industrial hygiene as to whether Norfolk Southern
provided reasonable and sufficient safeguards to
Mr. Rogers so he would have a reasonably safe
place to work with regard to his exposure to
silica dust?

A: No, I do not believe that they did.

At the conclusion of Rogers’ case-in-chief, Norfolk

Southern moved to strike Rogers’ evidence. The circuit

court overruled the motion. Norfolk Southern then

presented testimony from its witnesses.

As part of Norfolk Southern’s evidence, David M.

Tucker testified as an expert in the field of industrial

hygiene. Tucker was employed for Norfolk Southern as an

industrial hygienist from 1989 through 2001. During his

tenure with Norfolk Southern, he was not aware of any

railroad worker who had a confirmed diagnosis of silicosis.

Tucker testified that in order for silica dust to be

harmful, it must be respirable dust. This means that it

must be microscopic; any dust particle larger than that is

harmless. Therefore, Tucker opined that not every exposure

to silica represents a health hazard.

11
 Tucker further explained that Norfolk Southern uses

various types of rock as ballast, including granite and

limestone. He stated that Rogers mainly worked on Norfolk

Southern’s railroad tracks where limestone ballast was

used. Limestone rock has a lower silica content than

granite. Tucker also considered significant the fact that

Rogers worked in what was called a “section gang.” Unlike

a “system gang” that was exposed to silica dust on a daily

basis, a section gang did not have exposure to silica dust

everyday.

In 1990, Norfolk Southern learned that a former track

maintenance worker had possibly been diagnosed with

silicosis. After some initial testing, Norfolk Southern

decided, in 1992, to conduct extensive air monitoring and

medical work-ups on employees. The testing revealed that a

few workers were exposed to levels of silica dust that

exceeded the threshold limit values (TLV) while working on

railroad tracks where granite ballast was used.9 According

9
Tucker explained:

The TLV is designed as an established safe
limit. Nobody exposed at or below the TLV for
eight hours a day, 40 hours a week over a 35 year
working lifetime and that’s constant at that
level should ever get sick except for somebody
predisposed genetically [who is] very sensitive
to this disease.

12
to Tucker, the air monitoring and medical testing showed

that the “track maintenance workers [were] at no increased

risk of contracting silicosis over any other occupation.”

At the close of all the evidence, Norfolk Southern

again renewed its motion to strike. Similarly, after the

jury returned a verdict in favor of Rogers, Norfolk

Southern moved to set aside the jury verdict. The circuit

court denied both motions and entered judgment for Rogers.

On appeal, Norfolk Southern challenges, among other

things, the admission of Vogel’s testimony that Rogers was

exposed to excessive levels of silica dust during his

employment with Norfolk Southern and the sufficiency of the

evidence regarding the issue of negligence.10 We will

address the issues in that order.

II. ANALYSIS

A. Standard of Review

Armed with a jury verdict in his favor, Rogers is

entitled to have the evidence, and all inferences that may

reasonably be drawn from it, viewed in the light most

favorable to him. Norfolk & W. Ry. Co. v. Keeling, 265 Va.

10
On brief, Rogers claims that Norfolk Southern failed
to file the August 9, 2004 trial transcript and therefore
is barred from relying on it in this appeal. That
transcript was, however, filed when Norfolk Southern
attached it to its motion to set aside the verdict.
Therefore, the transcript is part of the record and may be
considered on appeal.

13
228, 232, 576 S.E.2d 452, 456 (2003); Evaluation Research

Corp. v. Alequin, 247 Va. 143, 147, 439 S.E.2d 387, 390

(1994). The judgment of the trial court will not be set

aside unless it is “plainly wrong or without evidence to

support it.” Code § 8.01-680. This standard of review is

applicable to Norfolk Southern’s assignments of error

challenging the sufficiency of the evidence. Keeling, 265

Va. at 282, 576 S.E.2d at 456. The question whether

Vogel’s expert opinion was supported by an adequate factual

foundation concerns the admissibility of evidence. CSX

Transp., Inc. v. Casale, 250 Va. 359, 367, 463 S.E.2d 445,

450 (1995). On appeal, we will reverse a trial court’s

decision to admit expert testimony if the court abused its

discretion in doing so. Tarmac Mid-Atl., Inc. v. Smiley

Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995).

B. Admissibility of Expert Testimony

In FELA cases, Virginia law governs the admissibility

of expert testimony. Keeling, 265 Va. at 235, 576 S.E.2d

at 457. Expert testimony is allowed where it “will assist

the trier of fact to understand the evidence or to

determine a fact in issue.” Code § 8.01-401.3. An

expert’s opinion may be based on “facts, circumstances or

data made known to or perceived by such witness.” Code

§ 8.01-401.1.

14
 An expert opinion, however, must have an adequate

factual foundation, and an expert’s testimony will be found

to be inadmissible if it is speculative in nature. John v.

Im, 263 Va. 315, 319–20, 559 S.E.2d 694, 696 (2002); Tarmac

Mid-Atl., 250 Va. at 166, 458 S.E.2d at 465–66. It is the

trial court’s responsibility “ ‘to ensure that only

properly admitted evidence is considered by the jury.’ ”

Casale, 250 Va. at 367, 463 S.E.2d at 450 (quoting Tyger

Constr. Co. v. Pensacola Constr. Co., 29 F.3d 137, 143 (4th

Cir. 1994)). “Expert testimony founded upon assumptions

that have no basis in fact is not merely subject to

refutation by cross-examination or by counter-experts; it

is inadmissible. Failure of the trial court to strike such

testimony upon a motion timely made is error subject to

reversal on appeal.” Vasquez v. Mabini, 269 Va. 155, 160,

606 S.E.2d 809, 811 (2005) (citations omitted).

In the present case, Vogel’s challenged testimony was

not based on an adequate factual foundation and was

therefore inadmissible. See Tittsworth v. Robinson, 252

Va. 151, 155, 475 S.E.2d 261, 263 (1996) (excluding expert

testimony because it “is speculative, is founded upon

assumptions lacking a sufficient factual basis, relies upon

dissimilar tests, and contains too many disregarded

variables”); Stover v. Norfolk & W. Ry. Co., 249 Va. 192,

15
197, 201, 455 S.E.2d 238, 241, 243 (1995) (expert witness,

who relied solely on depositions and color photographs,

drew an impermissible inference because the opinion was not

based on facts in the case or within the expert’s

knowledge). Vogel acknowledged that, in order to determine

the allowable silica level, it is necessary to know the

silica content of the material being tested. Otherwise,

the test is merely evaluating exposure to airborne dust

that could come from any source. Vogel did not know the

kind of ballast used by Rogers during his employment with

Norfolk Southern nor did he know its silica content.

Furthermore, Vogel admitted that, in order to know if a

worker is at risk, it is necessary to know the volume of

substance to which the worker was exposed.

Despite the admitted lack of necessary underlying

data, Vogel opined that Rogers had been exposed to

excessive levels of silica while working for Norfolk

Southern. He reached that conclusion by relying primarily

on AAR historical documents, his discussions with Rogers

concerning his work environment, and the video depicting

ballast dumping. Not one of those sources of information,

however, contained any evidence about the kind of ballast

used in Rogers’ work or its silica content. Consequently,

Vogel’s opinion that Rogers was exposed to silica dust in

16
an amount that exceeded a reasonably safe level was

“founded upon assumptions that [had] no basis in fact.”

Vasquez, 269 Va. at 160, 606 S.E.2d at 811. The testimony

was therefore inadmissible.

C. Sufficiency of Evidence

Under the provisions of FELA, railroads are liable for

“injury or death resulting in whole or in part from the

negligence of any of the officers, agents, or employees of

such carrier, or by reason of any defect or insufficiency,

due to its negligence, in its cars, engines, appliances,

machinery, track, roadbed, works, boats, wharves, or other

equipment.” 45 U.S.C. § 51 (2000). “[A] railroad has a

nondelegable duty, which is continuing, to exercise

reasonable care in furnishing its employees a safe place to

work.” Norfolk & W. Ry. Co. v. Johnson, 251 Va. 37, 44,

465 S.E.2d 800, 805 (1996). FELA does not, however, hold

employers to be the insurers of their employees. Inman v.

Baltimore & Ohio R.R. Co., 361 U.S. 138, 140 (1959); Brown

v. CSX Transp., Inc., 18 F.3d 245, 249 (4th Cir. 1994);

Norfolk S. Ry. Co. v. Trimiew, 253 Va. 22, 27, 480 S.E.2d

104, 108 (1997).

The question whether an employer was negligent under

FELA is a question of federal law. Trimiew, 253 Va. at 24,

480 S.E.2d at 106. “Drawing on federal law, we have noted

17
that a plaintiff’s proof must justify with reason the

conclusion that an employer’s negligence played any part,

even the slightest, in producing the injury for which

damages are sought.” Id.; accord Rogers v. Missouri Pac.

R.R., 352 U.S. 500, 506 (1957). “Reasonable foreseeability

of harm is an essential ingredient of FELA negligence.”

Stover, 249 Va. at 201, 455 S.E.2d at 244.

The standard of proof in a FELA action “is more

lenient than in a common law action[; however,] the

plaintiff nevertheless is still required to establish some

act of negligence in order to prevail.” Norfolk & W. Ry.

Co. v. Hughes, 247 Va. 113, 116, 439 S.E.2d 411, 413

(1994). The weight of the evidence must be more than a

scintilla before a case may be properly left to the

discretion of a jury. Brady v. Southern Ry. Co., 320 U.S.

476, 479 (1943); Stover, 249 Va. at 200, 455 S.E.2d 243;

see also Keeling, 265 Va. at 232, 576 S.E.2d at 456

(“[B]oth foreseeability and negligence must be shown by

more than a scintilla of evidence”). “[I]n rare cases

‘where fair-minded persons cannot differ on whether the

employer was at fault and whether that fault played any

part in the employee’s injury or death, the question

becomes one for the court.’ ” Stover, 249 Va. at 199, 455

18
S.E.2d at 242 (quoting Norfolk & W. Ry. v. Hodges, 248 Va.

254, 260, 448 S.E.2d 592, 595 (1994)).

At the close of Rogers’ evidence, at the close of all

of the evidence, and after the jury returned its verdict,

Norfolk Southern challenged the sufficiency of the evidence

with regards to the issues of negligence and

foreseeability. On appeal, Norfolk Southern asserts that

the circuit court erred in each instance. Because Norfolk

Southern introduced evidence on its behalf after the

circuit court denied its motion to strike Rogers’ evidence,

it has waived the right to rely on the first motion.

Taylor v. Flair Prop. Assocs., 248 Va. 410, 414, 448 S.E.2d

413, 416 (1994). Thus, in deciding whether there was

sufficient evidence to support the jury verdict, we

consider all the evidence and not just the evidence

presented in Rogers’ case-in-chief. Id. We do not,

however, consider the portion of Vogel’s expert testimony

that we have determined was inadmissible. See Grasty v.

Tanner, 206 Va. 723, 727-28, 146 S.E.2d 252, 255 (1966).

The principal contention between the parties on the

sufficiency of the evidence regarding Norfolk Southern’s

negligence is whether Rogers was required to introduce

“specific dose evidence” of his exposure to silica dust.

Norfolk Southern argues that Rogers “failed to present any

19
evidence of the amount of silica to which he was exposed,

that this amount exceeded permissible threshold levels,

that Norfolk Southern knew or should have known this was

occurring, or that his injury was reasonably foreseeable.”

Rogers claims that specific dose evidence is not required

to establish a railroad’s liability.11 To resolve whether

there was sufficient evidence in this case, we turn to some

of the cases cited by the parties.

In Young v. Clinchfield Railroad Co., 288 F.2d 499

(4th Cir. 1961), the court concluded that the plaintiff

presented sufficient evidence to create a jury issue as to

whether the railroad had failed to provide the plaintiff

with a safe workplace. Id. at 501. The plaintiff worked

“behind a cribbing machine which removed ballast from

between the ties and an adzing machine which smoothed the

ties.” Id. The plaintiff presented evidence that he was

exposed to heavy dust while performing this work on the

defendant’s railroad tracks and that the ballast used

contained rock with silica content ranging from 34 percent

to 100 percent. Id. A physician testified that this type

11
On this point, Rogers draws a distinction between
the issue of liability and the issue of medical causation.
He correctly points out that Norfolk Southern has not
challenged the sufficiency of the evidence on the latter
issue.

20
of exposure, to this amount of silica, could have caused

the plaintiff’s silicosis. Id.

In a decision citing Young, the court in Wooden v.

Missouri Pacific Railroad Co., 862 F.2d 560 (5th Cir.

1989), found sufficient evidence from which a jury could

infer that the railroad knew, or should have known, of the

risk to its employee of exposure to silica dust in the

workplace. Id. at 562. The plaintiff alleged that his

work on the railroad caused him to contract silicosis. Id.

at 560. The plaintiff introduced evidence showing that he

operated a tamping machine for the railroad, id. at 561,

and that the machine produced enough dust that “[y]ou

barely could see what you was [sic] doing.” Id. at 562.

An industrial hygienist testified that the rocks on the

trackbed with which the plaintiff worked contained 100

percent silica. Id.

In both Young and Wooden, there was evidence as to the

amount of silica present in the substance causing the dust.

While neither case contained evidence of actual exposure

levels, i.e., dose evidence, both cases did include expert

witness testimony that the rocks in question contained

significant levels of silica. Therefore, the jury in each

case could reasonably infer that the dust to which the

21
plaintiff was exposed contained a large amount of silica.

No such evidence was presented in the case before us.

In contrast to Young and Wooden, the court in Mitchell

v. Gencorp Inc., 165 F.3d 778 (10th Cir. 1999), affirmed

the trial court’s award of summary judgment to the

defendant because the plaintiff failed to prove the level

of chemicals to which he was exposed. Id. at 781. The

plaintiff was a warehouseman and truck driver, whose

position “required him to stock, organize and fill orders

from the company’s ‘flammable room.’ ” Id. at 779. The

flammable room was a small room without ventilation and

housed various products manufactured by the defendant that

contained certain chemicals. Id. Evidence suggested that

some barrels in the room had leaked. Id. The plaintiff

was diagnosed with chronic myelogenous leukemia and alleged

that his exposure to the chemicals in the flammable room

caused his illness. Id.

In Mitchell, an industrial hygienist was offered to

testify that the plaintiff’s exposure to these chemicals

caused his leukemia. Id. The expert, however, studied

only photographs of the flammable room showing some

chemical spillage and material safety data sheets listing

various chemicals contained in the defendant’s products.

Id. The expert never visited the room, nor did he conduct

22
any tests to determine the plaintiff’s level of exposure to

the chemicals. Id. The plaintiff relied on the proffered

expert testimony, along with his own testimony as to the

number and length of his visits to the flammable room, to

prove exposure. Id. at 781.

In excluding the expert’s testimony for lack of an

adequate foundation and finding the remaining evidence

insufficient, the court stated:

[W]hile [the plaintiff’s] testimony could be
relevant to proving that the “flammable room”
contained chemicals, it does not clarify the
level of chemicals to which [the plaintiff] was
exposed. Similarly, the materials relied upon by
[the expert] are not relevant in determining
[the] level of exposure. It makes little sense
to argue that a scientist can look at pictures
and a list of chemicals contained in a room and
arrive at a level of exposure.

Id.; see also Moore v. Ashland Chem. Inc., 151 F.3d 269,

278 (5th Cir. 1998) (“[b]ecause he had no accurate

information on the level of [the plaintiff’s] exposure to

the fumes, [the expert] necessarily had no support for the

theory that the level of chemicals to which [the plaintiff]

was exposed caused [his illness]”); Savage v. Union

Pacific R.R. Co., 67 F.Supp.2d 1021, 1031 (E.D.Ark. 1999)

(“plaintiff must demonstrate ‘the levels of exposure that

are hazardous to human beings generally as well as the

plaintiff’s actual level of exposure’ ” (quoting Wright v.

23
Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir.

1996)). But cf. Westberry v. Gislaved Gummi AB, 178 F.3d

257, 264 (4th Cir. 1999) (“although [the expert] did not

point to [the plaintiff’s] exposure to a specific level of

airborne talc, there was evidence of a substantial

exposure”).

Rogers correctly points out that the evidence in Young

and Wooden did not include specific dose evidence and

relies on Harbin v. Burlington Northern Railroad Co., 921

F.2d 129 (7th Cir. 1990), in support of his position. In

Harbin, the plaintiff was employed as a boilerman, and once

a year he was required to clean out three boilers located

in an enclosed building. Id. at 129. This cleaning forced

large amounts of soot and debris into the air. Id. at 130.

While the soot and debris were being released into the air,

locomotives in the building were running and emitting

exhaust fumes. Id. The plaintiff was provided a breathing

cup, but it only covered his mouth and had to be changed

three or four times a day because the soot was so dense.

Id. The railroad was aware of the problem but did nothing

to improve the ventilation system. Id. It did, however,

allow other employees (those not cleaning the boilers) to

leave during the cleaning process. Id. On the third day

of cleaning, the plaintiff experienced left arm and chest

24
pain, shortness of breath, and heavy perspiration. Id. He

was later diagnosed as having suffered a heart attack. Id.

The plaintiff subsequently brought a FELA action

against the railroad. The trial court granted summary

judgment for the railroad on the issue of negligence,

holding that “[w]ithout knowledge of the precise quantity

or composition of soot present in the air, . . . a jury

would be unable to assess the reasonableness of the

Railroad’s conduct.” Id.

On appeal, the United States Court of Appeals for the

Seventh Circuit reversed the trial court’s judgment. The

appellate court was persuaded by the evidence showing that

the cleaning process took place in a room without adequate

ventilation, while locomotives were running and emitting

exhaust fumes, and that cleaning the boilers produced so

much soot and debris the breathing cups had to be changed

multiple times each day. Id. at 131. Based on this

evidence, the court held that “a jury could reasonably

conclude that the Railroad’s failure to employ a different

boiler cleaning method or take additional precautions to

ensure the safety of its employees was negligent.” Id. at

132. While the court concluded that the plaintiff did not

need to “identify the specific composition and density of

soot present,” id., it compared the “general risk of harm

25
to employees forced to labor without ventilation in a sooty

environment” to the risk of injury “from a rusty wire left

lying about or a stagnant pool of water, or the lifting of

a heavy weight.” Id.

Rogers also relies on Fulmore v. CSX Transportation,

Inc., 557 S.E.2d 64 (Ga. Ct. App. 2001), an asbestos case,

to support his argument that specific dose evidence is not

needed. There, the court stated:

First, a plaintiff must offer proof of general
causation: whether exposure to a substance is
capable of causing a particular injury or
disease. In addition, a plaintiff must also
produce evidence of specific causation: whether
exposure to a substance under the circumstances
of the case caused a particular plaintiff’s
illness or disease. While both analyses involve
a question of the concentration levels of the
toxin to which plaintiffs were exposed, it does
not necessarily follow that plaintiffs must show
specific air measurement readings, or that they
have not otherwise established causation.

Id. at 72. The court in Fulmore acknowledged the need to

know the level of exposure to the offending substance. It

held, however, that because the plaintiffs had contracted

asbestosis, “which by definition, results only from an

overexposure to asbestos, the proof of asbestosis

conclusively establishe[d] such overexposure.” Id. at 72.

As in Young and Wooden, the offending substance in

Harbin and Fulmore was known and there was evidence from

which a jury could infer that the respective plaintiff had

26
been exposed to a hazardous level of the substance. In

Harbin, the plaintiff proved that he was exposed to such

amounts of soot and debris as to require breathing cups to

be changed frequently during a workday. Harbin, 921 F.2d

at 130. The plaintiff also showed that the ventilation

system was poor and that the railroad was aware of it – in

fact, the railroad allowed those employees not involved in

cleaning the boilers to leave. Id. at 130. In Fulmore,

the offending substance was asbestos, and excessive

exposure was proven by the fact that the plaintiff had

asbestosis. 557 S.E.2d at 72.

In contrast, the evidence in the case before us,

viewed in the light most favorable to Rogers, established

that beginning in 1932 railroads were aware of silica dust.

Testing in the 1990’s, however, did not show exposure to

unsafe levels of silica dust except for some railroad

employees who worked in areas where granite ballast was

used. Rogers did not prove that he worked with granite

ballast. The only evidence on this subject showed that he

predominantly worked on railroad tracks in areas where

limestone ballast was used.12

12
On brief, Rogers argues that testimony from one of
Norfolk Southern’s witnesses that he observed Rogers
wearing a respirator at times, establishes that Rogers was
exposed to unsafe levels of silica dust. We do not agree.

27
 Even knowing that Rogers worked with limestone

ballast, which is information Vogel did not have, the

record is void of evidence as to the silica content of such

rock. See Young, 288 F.2d at 501 (silica content of

ballast rock ranged from 34 percent to 100 percent);

Wooden, 862 F.2d at 562 (rocks on railroad trackbed

contained 100 percent silica). At best, the evidence

showed that Rogers, while working with limestone ballast,

was exposed to a visible dust cloud. But, Rogers’ own

expert, Vogel, admitted that, unless the silica content of

the material is known, any testing just measures exposure

to airborne dust that could come from any source. Vogel

further admitted that, to determine the allowable silica

level, it is essential to know the silica content of the

tested substance. Furthermore, Rogers testified that dust

to which he was exposed came not only from ballast but also

from under the railroad tracks and from dirt surrounding

the tracks.

Thus, we conclude that the evidence was insufficient,

as a matter of law on the issue of Norfolk Southern’s

negligence, to sustain the jury verdict. In reaching this

Moreover, Rogers testified that he never wore a respirator.
See Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652,
656 (1922) (“No litigant can successfully ask a court or
jury to believe that he has not told the truth.”).

28
conclusion, we agree with Rogers that “specific dose

evidence” is not required. Nevertheless, a plaintiff with

silicosis seeking damages under FELA must present some type

of evidence, such as silica content of the offending

substance, from which a jury can reasonably infer that the

plaintiff was exposed to levels of silica dust that

exceeded reasonably safe levels, i.e., that exceeded the

TLV. See supra note 9.

III. Conclusion

Vogel’s challenged testimony was inadmissible under

the rules for admission of expert testimony in Virginia.

His testimony that Rogers was exposed to amounts of silica

dust that exceeded reasonably safe levels lacked an

adequate factual foundation. The remainder of the evidence

presented was insufficient as a matter of law on the issue

of Norfolk Southern’s negligence. Norfolk Southern cannot

be held liable on a theory of exposure to excessive amounts

of silica dust when there was no evidence of exposure to

silica dust beyond exposure to a dust cloud of unknown

content. Rogers failed to prove “some act of negligence”

by Norfolk Southern. Hughes, 247 Va. at 116, 439 S.E.2d at

413. Therefore, we will reverse the judgment of the

29
circuit court and enter final judgment for Norfolk

Southern.13

Reversed and final judgment.

13
In light of our decision, it is not necessary to
address Norfolk Southern’s remaining assignments of error.

30