Present: All the Justices
NORFOLK SOUTHERN RAILWAY COMPANY
v. Record No. 000069 OPINION BY JUSTICE ELIZABETH B. LACY
January 12, 2001
RONALD L. BOWLES
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge
Ronald L. Bowles filed a motion for judgment pursuant to
the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-
60, alleging, inter alia, that Norfolk Southern Railway
Company * (NS) was negligent in failing to provide a reasonably
safe workplace. Bowles sought recovery for injuries he
asserted resulted from NS's negligence. Following a trial,
the jury returned a verdict in favor of Bowles for $1,500,000.
The trial court denied NS's motion to set aside the verdict
and entered judgment in accordance with the jury verdict. On
appeal, NS asserts that the trial court erred in admitting
certain opinions rendered by an expert witness, in refusing to
strike Bowles' evidence on the issue of NS's primary
negligence, and in refusing to grant a continuance or new
trial based on alleged irregularities regarding provision of
*
At the time of filing, the defendant's corporate name
was Norfolk and Western Railway Company. During the course of
litigation the name was changed to Norfolk Southern Railway
Company. Pursuant to a motion granted January 5, 2001, we
refer to the defendant as Norfolk Southern Railway Company in
this opinion.
the jury panel list. For the following reasons, we reject
NS's claims and will affirm the judgment of the trial court.
I. Facts
Bowles was employed by NS in the wheel machine building
at the Shaffer's Crossing shop in Roanoke. For approximately
twenty-six years, Bowles was a shift operator of the wheel
truing machine. When wheels of a locomotive become deformed
through use, cutting edges on the machine return the wheels to
a uniformly round condition. In order for the machine to cut
the wheels, shock absorbers that are mounted on the outside of
the wheels must be moved out of the way. The process involves
pulling the locomotive through the wheel truing machine on
specially constructed rails which raise the wheels of the
locomotive to approximately waist height, allowing the machine
operator access to the shock absorbers.
The operator must remove four bolts that hold a
rectangular plate to the outside of the axle of a wheel set.
The bottom end of the shock absorber is attached to the plate.
The operator pivots the shock absorber and plate up and out of
the way, keeping them in that position while the wheels are
being cut. The shock absorber and plate are then lowered, and
the four bolts are reinserted.
Because the shock absorber expands slightly when
disengaged from the axle, the operator must compress the shock
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absorber in order to realign the plate with the bolt holes.
If an operator does not want to apply manual pressure when
compressing the shock absorber and realigning the plate, he
can use a three-foot long steel pry bar to lever the plate
into position or call for assistance.
On June 23, 1993, as Bowles was manually compressing a
shock absorber and replacing the first bolt, he felt a pain in
his right lower back and upper hip. Bowles ultimately
underwent surgery for a herniated disc and is physically
unable to return to his former job.
II. Expert Opinions
Code § 8.01-401.3 allows a qualified expert witness to
testify in the form of an opinion if the expert's specialized,
technical, or scientific knowledge "will assist the trier of
fact to understand the evidence or to determine a fact in
issue." Bowles' expert, Dr. Michael D. Shinnick, testified
that, based on a reasonable degree of professional certainty,
"the work task was unsafe and had a potential for injury" and
"[a] mechanical device should have been employed to perform
the task of compressing the shock absorber." Dr. Schinnick's
opinions were inadmissible, NS asserts, because they "did not
offer the jury any scientific, technical or specialized
knowledge that was beyond the jury's knowledge, or that
assisted the jury to understand the evidence." This is
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particularly true, NS argues, because witnesses testified at
trial regarding the mechanics of the work task, a full size
model of the relevant portion of the locomotive was in the
courtroom, Bowles demonstrated his actions at the time of the
injury, and photographs of the work site, the investigative
reports, and accident reports were admitted as exhibits.
Thus, NS maintains, the jury had before it the same
information as that utilized by Dr. Shinnick in forming his
opinions.
The fact in issue in this case was whether the employer
provided a safe workplace. Dr. Shinnick was qualified as an
expert in ergonomics analysis and vocational assessment.
Ergonomics is the study of the relationship between people and
the equipment or the systems they use, Norfolk & W. Ry. Co. v.
Johnson, 251 Va. 37, 41, 465 S.E.2d 800, 804 (1996), and the
ergonomics analysis performed by Dr. Shinnick focused on the
work task of compressing the shock absorber. On the basis of
that analysis and review of other materials and statements,
Dr. Shinnick formed his opinion that the work task was not
safe and that a mechanical device should have been provided to
perform the task.
We conclude that the trial court did not err in admitting
the opinions of Dr. Shinnick complained of by NS. We agree
that common knowledge alone may be sufficient to decide
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whether a task is physically easy or difficult to perform, and
a difficult task may more often result in physical injury.
However, determining whether the task itself is safe is not
solely a function of logic. Whether easy or difficult, a
task's safety for the purpose of imposing liability on an
employer is determined by its effect on the body and whether
there is a need for alternative means of performing the task.
Thus, Dr. Shinnick's opinions were admissible because those
opinions, informed by his acknowledged expertise in the area,
could assist the jury in determining the fact in issue —
whether NS provided a safe workplace.
III. Proof of Negligence
The principles applicable to a personal injury case filed
pursuant to FELA are well-settled. Under FELA, an employer
has a nondelegable, continuing duty to exercise reasonable
care in providing a safe workplace for its employees. Id. at
44, 465 S.E.2d at 805. An employer fails to comply with that
duty if its negligence played even the slightest part in
causing injuries suffered by its employee. Both negligence
and foreseeability must be established by more than a
scintilla of evidence. Norfolk S. Ry. Co. v. Trimiew, 253 Va.
22, 27, 480 S.E.2d 104, 108 (1997). These issues are normally
a matter for the jury. Johnson, 251 Va. at 44, 465 S.E.2d at
805.
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NS asserts that as a matter of law Bowles failed to
produce evidence sufficient to support a jury determination
that NS was negligent or had reason to foresee any
unreasonable risk to those employees performing the task.
Furthermore, NS asserts that it provided a mechanical device,
a pry bar, to help employees perform the job. NS, relying on
Trimiew, asserts that the evidence showed only that
compressing shock absorbers was a difficult or hard task, not
an unsafe task, and, therefore, that the evidence failed to
create a jury issue on the railroad's negligence. As a
result, NS maintains that the trial court erred in denying
NS's motion to strike Bowles' evidence.
The evidence in this case, unlike the evidence in
Trimiew, includes expert testimony that the work was unsafe
and that NS should have provided a mechanical device to
perform the task. See 253 Va. at 28, 480 S.E.2d at 108.
Additional evidence relating to NS's negligence is found in
the testimony of Bowles and of fellow workers James Simmons
and William Dowdy, who described the task as awkward,
cumbersome, and difficult for an employee to perform alone.
Bowles and Dowdy testified that the pry bar was not effective
in all circumstances because it could slip and was awkward.
Bowles further testified that when using the pry bar, he had
incidents that "had not been good."
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The record also contains evidence regarding notice and
foreseeability. Dowdy and Bowles testified that they had
complained to their supervisor about the awkwardness of the
task, and Simmons testified that he had complained at safety
meetings that the task was difficult to perform. Both Simmons
and Dowdy heard Bowles make similar complaints at safety
meetings several times. Following the accident, during a
discussion about Bowles' injury, a supervisor told Bowles that
the "railroad had a poor practice of handling shock
absorbers."
Considering the evidence and all reasonable inferences
therefrom in the light most favorable to the nonmoving party,
as we must, Sloan v. Thornton, 249 Va. 492, 495, 457 S.E.2d
60, 61 (1995), we conclude that the record contained
sufficient evidence regarding foreseeability and negligence by
NS to allow the trial court to submit the issue to the jury
for determination.
III. Jury Panel Lists
NS's final assignment of error involves the application
of Code § 8.01-353. NS maintains that the provision in Code
§ 8.01-353 that a court officer "shall make available . . . a
copy of the jury panel to be used for the trial of the case at
least forty-eight hours before the trial" is mandatory and the
failure to comply with this provision is reversible error.
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In this case, NS's counsel requested and received the
jury panel list forty-eight hours before the scheduled trial.
However, on the day of trial, a number of potential jurors
called for jury duty could not get to the courthouse due to
inclement weather. Because only approximately forty potential
jurors arrived, all the potential jurors were put into a
combined pool. This pool was used first for picking a jury
for a criminal case scheduled for trial. The remaining
twenty-eight potential jurors were then made available for
Bowles' trial. The eight-member jury ultimately chosen from
this pool for Bowles' case consisted of six persons who were
not on the jury panel list previously furnished to NS's
counsel. This was error, NS concludes, and the trial court
should have granted either NS's motion for a continuance or
NS's motion for a new trial.
Furnishing counsel with a jury panel list is part of a
statutory procedure for the impaneling of jurors. That
procedure involves three separate stages at which potential
jurors are identified prior to choosing the final members of
the jury. The first stage is the creation of a master jury
list. The master jury list is assembled annually by jury
commissioners and utilized for the following twelve month
period. Code § 8.01-345. At the second stage, a list of
potential jurors is drawn from the master list for service
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during a term of court. Code § 8.01-348. Counsel in jury
cases to be tried during that term have access to this term
list. Code § 8.01-351. The final stage is the creation of
the jury panel list, the list at issue in this case. The
judge indicates the number of persons needed to hear the trial
of a case and that number is selected from the term list.
Code § 8.01-355. Those selected are notified to appear in
court on a day directed by the court. Code § 8.01-353.
Notification must be given by mailing summonses seven days
before the potential jurors are to appear. Code § 8.01-298.
Alternative methods for identifying and securing
potential jurors also are provided by statute. Code § 8.01-
353 allows a judge to verbally direct a person already
summoned for a jury panel to appear at a later date. Also, if
"a sufficient number of jurors summoned cannot be obtained for
the trial of any case, the judge may select from the names on
the [master jury list] the names of as many persons as he
deems necessary and cause them to be summoned to appear
forthwith for the trial." Code § 8.01-355. Finally, both
Code §§ 8.01-352 and –353 restrict the use of certain
irregularities or errors in providing information or selecting
potential jurors as the basis for objections, mistrials, or
reversible errors on appeal.
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The right to a jury trial is one of the cornerstones of
our legal system, and complying with the procedures for
insuring the presence of a fair and impartial jury is of the
highest priority. As NS argues, an important part of that
process is the ability of the parties to investigate potential
jurors for information which may disqualify a juror for cause
or otherwise impact the jury selection process. However, the
statutory scheme does not contemplate that a full and accurate
jury panel list will always be available for counsel forty-
eight hours before the trial of the case. For example, the
statutes specifically allow the trial judge to delay the
appearance of previously-summoned members of a jury panel and
to call persons on the term list to serve for a particular
trial, even though those persons were not on the jury panel
list. Code §§ 8.01-353, -355. These provisions recognize
that unanticipated circumstances requiring alternative means
of securing a jury panel will arise. In these circumstances,
the members of the actual jury panel necessarily will vary
from those persons listed on a jury panel list provided forty-
eight hours before trial.
Thus, even assuming without deciding that the requirement
in Code § 8.01-353 regarding provision of the jury panel list
is mandatory, as NS argues, the mandatory nature of that
provision cannot extend to requiring that the jury panel list
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provided to counsel prior to trial be identical to the actual
jury panel when circumstances require reconstitution of the
jury panel.
The need to reconstitute the jury panel under the
circumstances of this case was clear and has not been
challenged by NS. No error was assigned to the manner in
which the trial court reconstituted the jury panel nor was
there any assignment of error that the resulting jury was not
impartial. In arguing that the provisions of Code § 8.01-353
are mandatory, NS posits that the failure to comply with the
statute "constitutes, in and of itself, injustice," but NS
does not cite to any specific prejudice resulting from the
trial court's action. NS's only complaint is that the jury
panel list supplied before the trial did not accurately
reflect the true makeup of the jury panel. Accordingly, we
conclude that the trial court did not err in denying NS's
motions for a continuance and for a new trial because some of
the jury panel members were not identified in the jury panel
list given to NS prior to trial.
In summary, for the reasons stated, we hold that the
trial court did not err in admitting the opinions of Dr.
Schinnick, in submitting the issue of NS's negligence to the
jury, and in denying NS's motions for a continuance and a new
trial based on a discrepancy between the jury panel list and
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members of the jury panel. Accordingly, the judgment of the
trial court will be affirmed.
Affirmed.
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