CSX Transportation, Inc. v. Casale

Present: All the Justices

CSX TRANSPORTATION, INC.
OPINION BY
v. Record No. 950235 CHIEF JUSTICE HARRY L. CARRICO
November 3, 1995
PATRICK W. CASALE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge

This is the second time this FELA case has come before this

Court. 1 On the first occasion, Patrick W. Casale (Casale),

recovered a $1.17 million judgment against his employer, CSX

Transportation, Inc. (CSX). We reversed the judgment for the

trial court's error in permitting Casale's medical expert to state

that his diagnosis had been confirmed by the hearsay opinion of a

non-testifying physician. CSX Transportation, Inc. v. Casale, 247

Va. 180, 182-83, 441 S.E.2d 212, 213-14 (1994).

We remanded the case for a new trial limited to the issue of

damages, with the direction that "whatever verdict the plaintiff

may receive at a new trial shall be reduced by ten percent because

of the plaintiff's contributory negligence." Id. at 186, 441

S.E.2d at 216. Upon retrial, the jury returned a verdict in favor

of Casale for $2 million, which the trial court reduced to $1.8

million in accordance with our earlier direction. We granted CSX

an appeal limited to the question whether the trial court erred in

admitting the testimony of an economist offered by Casale as an

expert on the subject of Casale's future loss of income.

Casale was first employed by CSX in 1988 as a system

1
FELA is an acronym for the Federal Employers'
Liability Act, 45 U.S.C. § 51 et seq.
maintainer, later becoming a communications maintainer. On

February 20, 1990, he was working atop a sixty-foot pole repairing

communication lines that crossed the Roanoke River in the vicinity

of Weldon, North Carolina. Unexpectedly, a boat snagged a wire

Casale was attempting to install, causing the pole on which he was

working to whipsaw and slam him back and forth against the pole.

As a result, Casale suffered a "chronic lumbosacral spine sprain,"

a "severe left sacro-iliac joint sprain," and "traumatic

arthritis."

From the date of his injury to the time of the second trial,

Casale was seen by approximately thirteen physicians, most of whom

prescribed some type of treatment. Yet, Casale still suffered

pain, discomfort, and depression at the time of trial. He walked

with a limp and used a cane. His injured sacroiliac hip joint

dislocated often, he had difficulty sitting for extended periods

of time, his leg would give way on occasion, and he had problems

sleeping. He continued to take medication, and he used various

home remedies to relieve his discomfort. His injuries were

concededly permanent.

During the four years and seven months from the date of his

injury in February 1990 to the time of the second trial in

September 1994, Casale missed 543 days from work, or more than 50%

of the time he was supposed to be on the job. However, most of

the time was lost in 1990, 1991, and the first nine months of

1992. In October of 1992, Casale's physician at the time reported

that Casale could return to work after October 21 "with no

limitations," and Casale lost no time from work during the
remainder of 1992. He lost only 18 days in 1993 and 35 days in

the first eight months of 1994. From the time of the October 1992

report permitting Casale's return to work until the time of the

second trial, he was not declared medically disqualified from

employment with CSX.

At the time of the second trial, Casale was still employed by

CSX as a communications maintainer, receiving $16.12 per hour in

wages, although CSX had recently abolished his job involving work

on poles because of reductions in personnel and advances in

technology. As a result, Casale had sought and obtained

assignment to CSX's radio repair shop in Rocky Mount, North

Carolina. Casale had received training in Chicago for his new

position and was scheduled to report for work on Monday, October

3, 1994, following the conclusion of the second trial on September

30, 1994.

At the second trial, Casale's counsel announced out of the

presence of the jury that he intended to call Raymond Strangways,

an economist, to testify concerning Casale's "lost income."

Counsel told the court that when Strangways "filed his report with

us he figured the lost income for some reason back to 1992 and

into the future." Counsel further said that "[w]e advised

[Strangways] . . . we did not want to go back to 1992, because Mr.

Casale had been working" and that Strangways had revised his

report to calculate Casale's loss "from today forward in the

future."

CSX objected to what it calls Strangways' "lost future wages

model" on the ground that the witness's testimony would be "based
on the fact that [Casale] is not working now, from now on, and all

the evidence is that he is working." CSX stated that the court

should not "allow [the witness] to testify to something that's

based on [an incorrect] premise." The trial court overruled CSX's

objection and admitted Strangways' testimony. Strangways then took

the stand and testified that, at the direction of Casale's

counsel, he had calculated Casale's future loss of income on the

assumption that Casale either would not work at all after

September 29, 1994, the day Strangways testified, or would work at

a job paying only the minimum wage. On the assumption that Casale

would "never . . . work again," Strangways calculated Casale's

income loss "[s]tarting from today" at $997,000 were he to work

until age 63, at $1,082,000 until age 65, and at $1,297,000 until

age 70. On the assumption that Casale would "work in the future

at a minimum wage job," Strangways calculated Casale's income loss

at $679,000 were he to work until age 63, at $733,000 until age

65, and $866,000 until age 70.

CSX argues there was no evidence to support Strangways'

assumption that, beginning with the day after Strangways

testified, Casale would be permanently disabled from working for

CSX or would only earn the minimum wage working for someone else.

Hence, CSX concludes, the trial court should have ruled
2
Strangways' testimony inadmissible.
2
CSX also argues on brief that Strangways' "lost future
wages model" was further flawed because the evidence did not
support the use of age 70 as the ending date for the
calculation of Casale's loss of income. CSX correctly
points out that Casale himself testified he intended to
retire at age 65. However, because CSX did not timely
object to Strangways' use of age 70, we will not consider
 Casale argues on the other hand that "[t]here is evidence to

support the assumption of Dr. Strangways that Casale would not be

able to work for . . . CSX [after the date Strangways testified]

and was unable to work for CSX at the time of trial."

Furthermore, Casale says, "the calculations of Dr. Strangways were

supported by specific medical and vocational evidence that Casale

would never be able to do the radio shop job" in Rocky Mount,

North Carolina. This job, Casale points out, required him to lift

and install radios in CSX trains and vehicles and involved

bending, stooping, crouching, and working in awkward positions.

Therefore, Casale concludes, the trial court did not err in

admitting Strangways' testimony.

Casale called as witnesses three physicians who testified

concerning Casale's employment in CSX's radio repair shop in Rocky

Mount. Dr. Michael Decker, a treating physician, testified that

he would not "recommend" a job for Casale that involved lifting

heavy objects, working in awkward positions, and reaching and

bending. Dr. James Carr, another treating physician, stated that

it was not "a good idea" for Casale to work in a job that requires

him "to lift, carry, climb, stoop, crouch, [and] work in cramped

or confined spaces." Dr. Arthur Wardell, an evaluating physician,

said that it would not be within Casale's "abilities" to perform

any work that required the lifting of heavy objects or involved

bending over and getting into awkward positions.
(..continued)
the point. Rule 5:25. In any event, the ending date is
immaterial in view of our holding infra that there was no
basis for Strangways' use of the day after he testified as
the beginning date of Casale's loss of income.
 Casale also called Herman Bates, a vocational

rehabilitation counselor, who made a vocational evaluation of

Casale. Bates testified that the "work skills" Casale had

developed at CSX were not transferable "into other areas" of

employment and that, "should [Casale] be able to return to work"

in alternative employment, it would be in a sedentary position

paying the minimum wage.

There are several difficulties with Casale's position that

"[t]here is evidence to support the assumption of Dr. Strangways

that Casale would not be able to work for . . . CSX [after the

date Strangways testified] and was unable to work for CSX at the

time of trial." In the first place, while Casale wants this Court

to accept the testimony of his medical witnesses and his

vocational rehabilitation counselor to support his position, he

testified himself that he did "have a job" and still "collected a

paycheck" at the time of trial and that he had sought the job in

CSX's Rocky Mount radio repair shop, had accepted training in

preparation for the job, and intended to report for work in his

new position on the Monday following the conclusion of the second
3
trial.
As a general rule when two or more witnesses
introduced by a party litigant vary in their statements
of fact, such party has the right to ask the court or
3
On brief, Casale says he made clear in his testimony
he had "talked with a co-worker at the [Rocky Mount radio
repair] shop and found that the job was more demanding than
he expected and thus he had reservations about working full
time five days a week eight hours a day." But even after
testifying in this manner, Casale insisted that he planned
to report to work on the Monday following the conclusion of
the second trial.
 jury to accept as true the statements most favorable to
him. . . . This is not true, however, as to the
testimony which he gives himself. No litigant can
successfully ask a court or jury to believe that he has
not told the truth. His statements of fact and the
necessary inferences therefrom are binding upon him. He
cannot be heard to ask that his case be made stronger
than he makes it, where, as here, it depends upon facts
within his own knowledge and as to which he has
testified.

Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922).

Casale cannot ask that he be allowed to make his case

stronger by having this Court accept the favorable evidence

concerning his alleged inability to work while disregarding his

own testimony that he was working at the time of the second trial

and would report for work in his new job the first of the

following week. These are facts within his own knowledge. He is

bound by his testimony, and it tends to show that Strangways had

no basis for his "lost future wages model." But there is more.

At different times during the course of the trial, the trial

judge characterized Strangways' "lost future wages model" in terms

that can only be described as disparaging. During the discussion

on CSX's objection to Strangways' testimony, CSX's counsel argued

that the testimony erroneously would be "based on the fact that

[Casale is] no longer working." Responding, the trial judge

indicated that if he were CSX's counsel, he would not object

because it would be saying to the jury: "[W]e're going to give

you this stuff and it's absolutely ridiculous. The man is still

working today."

During a discussion on a request by Casale to use during

closing argument a chart depicting Strangways' model, CSX's
counsel objected, stating: "[F]or [Casale] to use a visual

display that's inaccurate is the problem." The trial judge

responded: "It isn't accurate. It's based on an improper

assumption." Then, when Casale's counsel asserted that the chart

was "based on the evidence," the judge replied: "It is based on

evidence, that is correct, but the evidence has been shown to be

faulty." Finally, during argument on post-trial motions, the

judge stated that he had "some concern with . . . the

admissibility of Dr. Strangways' evidence [because] his

assumptions are based on facts which are not in evidence."

These observations of the trial judge were eminently correct.

Yet, he felt it was for the jury to determine whether a proper

foundation had been laid for Strangways' testimony. We take a

different view. In Swiney v. Overby, 237 Va. 231, 377 S.E.2d 372

(1989), a wrongful death action, the question was whether the

trial court erred in admitting expert testimony regarding the

stopping distance of one of the vehicles involved in an accident.

In calculating the stopping distance, the experts used an assumed

brake condition and speed of the vehicle in question.
4
Interpreting Code § 8.01-401.1, we held that admission of the
4
At the time Swiney was decided, Code § 8.01-401.1 read
as follows:

In any civil action any expert witness may give
testimony and render an opinion or draw inferences from
facts, circumstances or data made known to or perceived
by such witness at or before the hearing or trial
during which he is called upon to testify. The facts,
circumstances or data relied upon by such witness in
forming an opinion or drawing inferences, if of a type
normally relied upon by others in the particular field
of expertise in forming opinions and drawing
inferences, need not be admissible in evidence.
expert testimony was erroneous, stating:
Qualification of an expert witness does not insure
admission of his every statement and opinion. Code
§ 8.01-401.1 allows an expert to express an opinion
without initially disclosing the basis for the opinion
and to base the opinion on hearsay evidence otherwise
inadmissible. It does not, however, relieve the court
from its responsibility, when proper objection is made,
to determine whether the factors required to be included
in formulating the opinion were actually utilized. If
all the factors are not utilized, the court should
exclude the opinion evidence.

Id. at 233, 377 S.E.2d at 374 (citations omitted). And in Lawson

v. John Doe, 239 Va. 477, 391 S.E.2d 333 (1990), another wrongful

death case, the question was whether the trial court erred in

excluding the testimony of an expert regarding the horizontal

velocity needed for a board to slide along a pavement to the spot

where it was found if it started its slide from a point near the

location where a hat and shirt belonging to the deceased were

discovered. In affirming the trial court's action, we said:
Here, the plaintiff concedes, as, indeed, he must,
that his expert would have had to assume that the board
began its slide along the pavement "opposite the
location of the hat and shirt." No evidence established
that location as the beginning point of the board's
slide, and only an assumption could have supplied this
missing, essential factor.

We do not read Code § 8.01-401.1 as sanctioning the
(..continued)

The expert may testify in terms of opinion or
inference and give his reasons therefor without prior
disclosure of the underlying facts or data, unless the
court requires otherwise. The expert may in any event
be required to disclose the underlying facts or data on
cross-examination.

A 1994 amendment to Code § 8.01-401.1 pertains to the
examination of experts concerning statements contained in
published treatises, periodicals, or pamphlets on certain
subjects. Acts 1994, c. 328. The amendment is inapposite
here.
 admission of expert testimony based upon a mere
assumption which, as here, has no evidentiary support.
Hence the trial court did not err in excluding the
proffered testimony.

Id. at 483, 391 S.E.2d at 336.

Furthermore, Code § 8.01-401.1 is based, with minor

alterations, upon Federal Rules of Evidence 703 and 705, and we

have held that "the construction given to those rules by the

federal courts is instructive." McMunn v. Tatum, 237 Va. 558,

565, 379 S.E.2d 908, 911-12 (1989). In Tyger Constr. Co. v.

Pensacola Constr. Co., 29 F.3d 137 (4th Cir. 1994), cert. denied,

___ U.S. ___, 115 S.Ct. 729 (1995), the district court admitted

the testimony of an expert concerning construction methods and

assessment of cost overruns on a building project, despite the

objection that the expert did not have an adequate basis for his

opinion. The district court held that if an expert does not have

an adequate basis for his opinion, it is for counsel to bring out

the deficiencies on cross-examination and for the jury to decide

what weight, if any, the opinion should be given. Id. at 143.

The Fourth Circuit Court of Appeals reversed, stating:
It was an abuse of discretion for the trial court
to admit [the expert's] testimony . . . . The court may
not abdicate its responsibility to ensure that only
properly admitted evidence is considered by the jury.
Expert opinion evidence based on assumptions not
supported by the record should be excluded.

Id.

In summary, the question before the trial court was one of

the admissibility of evidence, not its weight -- a strictly legal

question. It was for the trial court, therefore, not the jury, to

decide whether the foundation had been laid for the introduction
of Strangways' testimony. Since the evidence did not support the

assumption upon which Strangways based his "lost future wages

model," the trial court should have excluded the testimony.

As a last resort, Casale argues that if the admission of

Strangways' testimony was erroneous, the error was harmless. We

disagree. Strangways was the only expert economist to testify on

the question of Casale's future loss of income, and his testimony

was bound to have made a lasting impression on the jury. The

conclusion is inescapable that admission of the testimony was

prejudicial to CSX.

For the error in admitting Strangways' testimony, we will

reverse the judgment of the trial court and remand the case for a

new trial, limited to the question of damages. Again, we direct

that whatever verdict Casale may receive at a new trial shall be

reduced by ten percent because of his contributory negligence.

Reversed and remanded.