Combs v. Norfolk & Western Railway Co.

Present: All the Justices

BOBBY RAY COMBS

v. Record No. 980024 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 6, 1998
NORFOLK AND WESTERN
RAILWAY COMPANY

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge

In this appeal, we consider two issues raised in an action

brought under the Federal Employer’s Liability Act (the FELA),

45 U.S.C. §§ 51-60. First, we address whether the trial court

abused its discretion in allowing a biomechanical engineer to

state an expert opinion regarding the cause of the plaintiff’s

injury. Second, we consider whether the trial court erred in

allowing the defendant to present evidence of safer work methods

the plaintiff could have used in performing the task that

resulted in his alleged injury.

In November 1992, Bobby Ray Combs allegedly was injured

while employed as a sheet metal worker for the Norfolk and

Western Railway Company (N&W). At the time of his alleged

injury, Combs was in the process of fabricating two stainless

steel templates for the bottom of a porcelain toilet which was

to be installed in a passenger railroad car. Combs and a co-

worker, Siegfried Hofmann, began work on the project on a
Friday. At the end of the day, they left the unfinished project

on Hofmann’s workbench.

When work resumed on Monday, Hofmann was assigned to

another task, leaving Combs to finish fabricating the templates.

When Combs attempted to turn the toilet onto its side to remove

the underlying template, the toilet slipped from his grasp. As

Combs lunged forward to catch it, he felt a sharp pain in his

lower back. One month later, Combs underwent surgery for a

ruptured lumbar disc.

Combs filed suit against N&W under the FELA, alleging that

N&W failed to provide safe and suitable tools and equipment,

safe methods of work, and sufficient manpower to perform the

assigned task. In response, N&W denied that it violated any

duty owed to Combs, and alleged that Combs’ injury was caused

solely by his own negligence or, in the alternative, that Combs’

negligence significantly contributed to the accident.

Before trial, Combs filed a motion in limine, requesting

that the court prohibit N&W from presenting evidence of safer,

alternative methods Combs could have used to perform his task.

Combs argued that the holding in Stillman v. Norfolk and Western

Railway Co., 811 F.2d 834 (4th Cir. 1987), should be applied to

prohibit N&W from asserting that he could have performed the job

in a safer manner. The trial court denied Combs’ motion, ruling

that since Combs contended N&W was negligent in assigning a

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"two-person" job to one person, N&W was entitled to present

evidence that the task could have been performed safely by one

person.

At trial, a metal table that was the same width and height

as Hofmann’s workbench was placed in the courtroom and admitted

in evidence as an exhibit. However, the table was shorter in

length than Hofmann’s workbench and had a smooth surface, while

Hofmann’s workbench had a grooved pattern on its surface for use

in measuring materials. A porcelain toilet that was the same

model as the one involved in the accident, and a stainless steel

template of the same size as the one made by Combs, were placed

on the table. During the trial, several witnesses referred to

these exhibits and used them to illustrate aspects of their

testimony.

The following evidence was presented at the trial. Combs

testified that, when he departed from work on Friday, he left

the toilet on top of the first unfinished template. He stated

that he had to move the toilet off the template Monday morning

to complete the job. Combs also stated that he twice told his

supervisor, Kersey R. Harper, that he needed Hofmann’s

assistance to complete the job, but was told that Hofmann was

unavailable and that Combs should just do the best he could.

Harper testified that Combs and Hofmann had completely

finished one template on Friday. Both Harper and the general

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foreman, David Carr, testified that the work remaining to be

done on the second template on Monday required only one worker

and did not require Combs to lift the toilet or to turn it on

its side. Both Harper and Carr testified and demonstrated that

one person easily could move the toilet off the template by

“scoot[ing]” or rocking the toilet.

Harper, Carr, and one of Combs’ co-workers, David Jones,

all testified that it was common practice for employees to ask

another employee to help them when assistance was needed. Jones

stated that he was working at his workbench about twelve feet

away from Combs at the time of the accident, but that Combs did

not request his assistance.

Carr also stated that N&W had a standing rule that if an

employee believed a task could not be done safely, he was

required to halt the task and to report the problem to a

supervisor. Combs acknowledged that he was aware of this

policy. According to Harper, although Combs inquired twice

about Hofmann’s whereabouts on the morning in question, Combs

did not state that he needed help in completing the job.

Michael Shinnick, who has a doctoral degree in education,

testified as an expert in ergonomics. He stated that when the

toilet slipped to a 45º angle, Combs “absorbed or had the

control of a hundred and ten pounds of force in his right hand

24 inches in front of his body.”

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 Dr. Robert Widmeyer, an orthopedic surgeon, testified that

Combs had three degenerative discs prior to his injury. He

stated that, to a reasonable degree of medical certainty, Combs

ruptured a disc when he engaged in the twisting movement in

attempting to catch the falling toilet. Dr. Curtiss Mull, an

orthopedic surgeon who examined Combs at the request of N&W,

testified that this particular event could have caused Combs’

ruptured disk.

N&W presented the testimony of Daniel J. Schneck, Ph.D.,

who qualified as an expert witness on the subject of

biomechanical engineering. Schneck’s educational background

included a bachelor’s degree in mechanical engineering, a

master's degree in medical science, and a Ph.D. in fluid,

thermal, and aerospace sciences, with a specialization in

biomedical engineering. Although he had completed all the

academic work required for a medical degree, Schneck had not

completed a medical internship or residency and was not licensed

to practice medicine. He is a professor of engineering,

science, and mechanics and is the director of the biomedical

engineering program at Virginia Polytechnic Institute and State

University.

Combs asked the trial court to prohibit Schneck from

stating an opinion regarding the cause of Combs’ ruptured disc.

Combs argued that since Schneck was not a medical doctor, he was

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not qualified to render an “expert medical opinion” about the

cause of a particular injury. The trial court denied Combs'

motion, ruling that such testimony was within Schneck’s

expertise.

Using Combs' own description of how he turned the toilet

onto its side, Schneck testified that the twisting movement used

by Combs resulted in a “G load” of 0.194 on Combs’ spine.

Schneck explained that one G load is equal to a person’s body

weight, and that “.194 G’s [is] 0.194 G’s over and above the one

G.” Schneck compared the load force placed on Combs' spine to

the force generated by starting a lawn mower, "plopp[ing] down"

into a chair, or hopping off a step.

Schneck’s testimony also included the following colloquy

with N&W’s counsel:

Question: Would the task of one person turning a
commode such as this on its side pose a danger of
rupturing a disk beyond that normally associated
with normal daily activities?

Answer: Not at all.
. . . .

Question: [A]re you aware that Mr. Combs did have
degeneration in his lower three disks
which would explain, I guess, a lot of what
you are talking about?

Answer: That is correct. It is conceivable that the
degeneration on this particular day was of such a
nature that there was material that had oozed
out of the disk and because of the way he turned,
the way he moved, whatever it was that he
physically did, he became aware that there was a

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 problem in his back.

It became symptomatic, but it didn’t rupture the
disk at that instant in time.

. . . .

A very benign activity can cause a ruptured disk
to become symptomatic.

At the conclusion of the evidence, the jury returned a

verdict in favor of N&W. The trial court overruled Combs’

motion to set aside the verdict and entered judgment in favor of

N&W. This appeal followed.

On appeal, Combs argues that the trial court erred in

allowing Schneck to give an opinion regarding the cause of

Combs’ ruptured disk. Combs does not challenge Schneck’s

qualifications as a biomechanical engineer, and agrees that the

field of biomechanics is related to the field of medicine.

Combs also concedes that Schneck was qualified to testify about

the compression forces placed on Combs’ spine at the time of the

injury. Combs objects, however, to Schneck’s testimony

concerning the cause of Combs’ ruptured disc, arguing that only

a licensed, medical doctor is qualified to render such an

opinion.

In response, N&W contends that since the study of

biomechanics includes the application of scientific and

engineering principles to determine forces exerted on the human

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body, Schneck was qualified to state an expert opinion regarding

the cause of Combs’ injury. N&W also asserts that Schneck’s

entire testimony was admissible to rebut Michael Shinnick’s

testimony concerning the forces placed on Combs’ spine at the

time of his injury. We disagree with N&W.

The issue whether a witness is qualified to render an

expert opinion is a question submitted to the sound discretion

of the trial court. Poliquin v. Daniels, 254 Va. 51, 57, 486

S.E.2d 530, 534 (1997); King v. Sowers, 252 Va. 71, 78, 471

S.E.2d 481, 485 (1996); Tazewell Oil Co. v. United Va. Bank, 243

Va. 94, 110, 413 S.E.2d 611, 620 (1992). The record must show

that the proffered expert witness has sufficient knowledge,

skill, or experience to render him competent to testify as an

expert on the subject matter of the inquiry. King, 252 Va. at

78, 471 S.E.2d at 485; Griffett v. Ryan, 247 Va. 465, 469, 443

S.E.2d 149, 152 (1994); Noll v. Rahal, 219 Va. 795, 800, 250

S.E.2d 741, 744 (1979). The fact that a witness is an expert in

one field does not make him an expert in another field, even

though the two fields are closely related. Tazewell Oil Co.,

243 Va. at 110, 413 S.E.2d at 620; VEPCO v. Lado, 220 Va. 997,

1005, 266 S.E.2d 431, 436 (1980).

The practice of medicine includes the diagnosis and

treatment of human physical ailments, conditions, diseases,

pain, and infirmities. See Code § 54.1-2900. The term

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“diagnose” is defined as “to determine the type and cause of a

health condition on the basis of signs and symptoms of the

patient." Mosby's Medical Dictionary 480 (5th ed. 1998). Thus,

the question of causation of a human injury is a component part

of a diagnosis, which in turn is part of the practice of

medicine.

Schneck was qualified at trial as an expert in the field of

biomechanical engineering and he was competent to render an

opinion on the compression forces placed on Combs’ spine at the

time of the incident. However, Schneck was not a medical doctor

and, thus, was not qualified to state an expert medical opinion

regarding what factors cause a human disc to rupture and whether

Combs’ twisting movement to catch the toilet could have ruptured

his disc.

We disagree with N&W’s contention that this testimony was

admissible to rebut Shinnick’s testimony concerning the

compression forces caused by Combs’ actions at the time of the

incident. Shinnick did not state an opinion concerning the

cause of Combs’ ruptured disc. Therefore, his testimony did not

provide a basis for the admission of medical causation

testimony, and we hold that the trial court abused its

discretion in allowing Schneck to testify on such matters.

While this error requires reversal of the trial court’s

judgment, we will address Combs’ remaining arguments because

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they involve issues that will arise in the retrial of this case.

Combs contends that the trial court erred in allowing N&W to

present evidence to prove that the assigned task could have been

performed safely by one person. He argues that the holding in

Stillman v. Norfolk and Western Railway Co., 811 F.2d 834 (4th

Cir. 1987), should have been applied in this case to prohibit

the introduction of such evidence. There, the Court of Appeals

prohibited an employee in a FELA action from introducing

evidence of safer equipment his employer could have provided to

do a job. 811 F.2d at 838. Combs argues that since primary

negligence and contributory negligence are subject to the same

proof requirements, the Stillman ruling should apply to prevent

N&W from showing that Combs could have performed his job in a

safer manner. We disagree with Combs’ argument.

In Stillman, the employee sought to present testimony that

use of an overhead crane would have provided a safer method for

installing gears in railway cars rather than the forklift

provided by the employer. Id. The court ruled that such

evidence was inadmissible because the relevant inquiry was

whether the employer had exercised reasonable care for the

employee’s safety, not whether the employer could have provided

safer equipment for performing the job. Id.

We hold that Stillman is inapplicable here because that

ruling was based on a party’s attempt to prove negligence “in a

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vacuum” by showing that safer equipment could have been used,

irrespective of whether the equipment actually used met the

standard of reasonable care. In contrast, N&W’s evidence was

directly relevant to the issues presented by the parties’

pleadings, namely, whether N&W exercised reasonable care in

providing manpower to do the job and whether Combs exercised

reasonable care in performing his assigned task. Combs asserted

that N&W was negligent in assigning a “two-person” job to one

person. To defend against that claim, N&W was entitled to show

that the task assigned to Combs could be performed safely by one

person, and that Combs chose an unsafe method of performing a

task when safer alternative methods were available.

Our conclusion is supported by the decisions of other

courts in FELA actions. For example, in Gish v. CSX

Transportation, Inc., 890 F.2d 989 (7th Cir. 1989), an employee

alleged, among other things, that the employer railroad failed

to provide him adequate help and equipment to lift a manhole

cover. The railroad denied any negligence, and presented

evidence that the employee could have asked his supervisor for

help or used one of several safe alternative methods to remove

the manhole cover, rather than failing to use proper care in

“yanking” at the cover himself. Id. at 991-93. On the basis of

this evidence, the court approved the jury’s finding that the

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employee’s own negligence partially contributed to his injury.

Id. at 993.

Likewise, in Wadiak v. Ill. Cent. Ry. Co., 208 F.2d 925

(7th Cir. 1953), evidence of a plaintiff’s choice of an improper

method of moving a cargo barrel formed the basis for the court’s

reversal of a judgment for the employee. The plaintiff injured

himself when he and another employee decided to move the barrel

by hand without seeking additional manpower or using nearby

equipment that the plaintiff admitted was adequate to perform

the job. Id. at 927-28. The court held that, as a matter of

law, the evidence showed that the plaintiff was injured because

he voluntarily adopted an unsafe, rather than a safe, method of

performing his job. Id. at 929; see also Dixon v. Penn Cent.

Co., 481 F.2d 833, 836 (6th Cir. 1973); McGivern v. Northern

Pac. Ry. Co., 132 F.2d 213, 217-18 (8th Cir. 1942).

These decisions illustrate the principle that an employee’s

voluntary choice of an unsafe method to perform a job, instead

of alternative safe methods available to him, may be admitted in

evidence in defense of a claim that the employee’s injuries were

proximately caused by the employer’s negligence. Combs’

complaint, however, is not limited to this question of law. He

further argues that N&W’s use of demonstrative evidence to

present proof of safe alternative methods was inadmissible

because the demonstrations were performed under circumstances

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not substantially similar to the conditions existing in the N&W

shop on the day Combs was injured. N&W responds that Combs’ own

use of the table and toilet in questioning a witness precludes

the complaint he raises here. We agree with N&W.

In his redirect examination of Kersey Harper, Combs’

counsel engaged in the following exchange:

Question: Walk over here and show these folks how you
were holding the commode on . . . the day
when you tried to do the recreation. Were
you cradling it or holding it differently?

Answer: I was not cradling it.

Question: No. Let’s you and I show the jurors how
you were doing it . . . . You were holding
it like this, right?

Answer: Yes, sir.

Question: And like this, right?

Answer: Right.

Question: So that you would have hold of it when you
tilted it up, and if it slipped off like it
did then and got away from you on this
table, you would have a good firm grip on
it. You tried to recreate, took your hand
off in one of the pictures and did like
that, didn’t you?

Answer: I tried to recreate where he told me that he
had his hands.

The record indicates that the table used at trial, which

was introduced into evidence by N&W and used throughout its

case, was substantially different from the workbench Combs used

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on the day of the accident. However, we do not reach the merits

of Combs’ claim that use of the various exhibits as

demonstrative evidence constituted reversible error, because

Combs used the same exhibits in presenting demonstrative

evidence on his own behalf. Generally, when a party

unsuccessfully objects to evidence that he considers improper

and then introduces on his own behalf evidence of the same

character, he waives his earlier objection to the admission of

that evidence. Hubbard v. Commonwealth, 243 Va. 1, 9, 413

S.E.2d 875, 879 (1992); Saunders v. Commonwealth, 211 Va. 399,

401, 177 S.E.2d 637, 638 (1970); Hoier v. Noel, 199 Va. 151,

155, 98 S.E.2d 673, 676 (1957); see Brooks v. Bankson, 248 Va.

197, 207, 445 S.E.2d 473, 478-79 (1994). While the presentation

of rebuttal evidence does not give rise to such a waiver, Combs’

use of the exhibits during re-direct examination of Harper went

beyond mere rebuttal. See Hubbard, 243 Va. at 9-10, 413 S.E.2d

at 879.

For these reasons, we will reverse in part, and affirm in

part, the trial court’s judgment, and remand the case for a new

trial consistent with the principles expressed in this opinion.

Affirmed in part,
reversed in part,
and remanded.

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