Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
Koontz, JJ., and Whiting, Senior Justice
NORFOLK AND WESTERN RAILWAY COMPANY
OPINION BY
v. Record No. 950210 SENIOR JUSTICE HENRY H. WHITING
November 3, 1995
ROBERT E. PURYEAR
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
In this appeal, we are asked to decide whether a litigant's
written summary of those parts of the testimony favorable to his
case is admissible into evidence as an exhibit. We are also
asked to determine whether the trial court improperly ruled that
a proper foundation was laid for the admission of certain tests
relied upon by an expert witness.
Robert E. Puryear worked for the Norfolk and Western Railway
Company (N & W) for 32 years, first as a fireman and an engineer,
and then, starting in 1975, as a foreman. While he was a fireman
and an engineer, Puryear rode on N & W's locomotives every
working day, and while a foreman, he rode on N & W's locomotives
three days a week. Less than a year before his retirement from N
& W in September 1987, Puryear was advised that he suffered from
hearing loss.
Two years after retiring, Puryear filed this damage action
against N & W under the Federal Employers' Liability Act (FELA),
45 U.S.C. §§ 51 et seq. In this action, Puryear alleged that N &
W violated a duty of care imposed upon it by FELA in exposing him
to excessive noise from its locomotives, equipment, and horns,
thereby causing his hearing loss. During a jury trial, the trial
court admitted certain exhibits and expert testimony over N & W's
objection. The jury returned a verdict of $150,000 in favor of
Puryear upon which final judgment was entered. N & W appeals,
assigning, among other things, the admission of this evidence as
error.
Puryear testified that, between 1961 and 1975, he spent 50%
of his working time riding on General Motors EMD GP-9
locomotives; another 10% of his working time during this period
was spent on locomotives he described as "Alcos." From 1972 to
1975, Puryear also made approximately 60 trips on General Motors
EMD-F-7 locomotives. While a foreman, Puryear also rode on
General Electric Company C-36-7 locomotives at least one day out
of the three days each week that he rode on N & W locomotives.
Puryear testified about the loud noise created by the engines and
equipment on the GP-9, F-7 and Alco locomotives and the horns of
the C-36-7 locomotives.
Dr. Angelo Campanella, one of Puryear's expert witnesses on
the measurement of sound, testified about the noise levels on N &
W's F-7, GP-9, and C-36-7 locomotives. According to Dr.
Campanella, tests which he and other experts had performed
indicated that the horn on the C-36-7 locomotive and the engines
and equipment of the F-7 and GP-9 locomotives produced noise in
excess of sound levels fixed by Federal Railroad Administration
(FRA) regulations at the time FELA employees were exposed to such
noise. *
*
The court ruled that the FRA noise standards fixed N & W's
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Except for Puryear's testimony that the Alco locomotives
made more noise than the F-7 locomotives, there was no evidence
that any of the other types of locomotives and equipment on which
Puryear rode during the balance of his employment exceeded FRA
noise standards. In fact, Campanella testified that an SD-40
locomotive of the same model on which Puryear rode 40% of the
time from 1961 to 1975 had been tested and found not to exceed
those standards.
Puryear and his experts on the cause and effect of hearing
loss testified that his hearing loss developed during his
employment with N & W. However, N & W's expert in the same
field, who examined Puryear after this controversy arose and had
also reviewed hearing tests performed upon Puryear in 1987, 1989,
and 1994, opined that Puryear's significant hearing loss occurred
after he retired, due to an aging phenomenon known as
presbycusis. Thus, the evidence conflicted on the issues of the
amount of Puryear's exposure to the allegedly excessive noise of
some of N & W's locomotives and equipment and whether that
exposure caused his hearing loss.
Against this background, we consider whether the trial court
erred in admitting into evidence two exhibits relevant to these
conflicts. The first exhibit was Puryear's written summary of
(..continued)
duty of care and no error has been assigned to that ruling.
Therefore, it became the law of the case.
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his testimony on the amount of time he spent on locomotives that
he and Dr. Campanella regarded as excessively noisy. The second
exhibit was a chart prepared by Dr. Campanella, based on the
information in Puryear's summary. This chart summarized Dr.
Campanella's testimony on his calculations of Puryear's periods
of exposure to the excessive noise of these locomotives.
N & W contends that these exhibits should not have been
admitted into evidence because they summarized only those parts
of Puryear's oral testimony favorable to his contentions and
because, during its deliberations, the jury might have placed
more weight on these written summaries than on their collective
recollection of the actual testimony. Puryear responds by
claiming that "[t]his Court has routinely approved the admission
of summary exhibits into evidence."
None of the cases relied upon by Puryear deals with the
issue of the admissibility of summaries or charts of favorable
parts of oral testimony upon a contested issue. In Peterson v.
Neme, 222 Va. 477, 281 S.E.2d 869 (1981), we specifically stated
that "the only question presented by this assignment of error is
whether the plaintiff's lay opinion [of her injuries and
disabilities] and the supporting exhibit [summarizing part of the
plaintiff's oral testimony] were admissible to prove causal
connection between her injuries and her capacity to work." Id.
at 483, 281 S.E.2d at 872. Thus, we were not deciding whether
the plaintiff's summary of her testimony was admissible as an
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exhibit. In Marefield Meadows, Inc. v. Lorenz, 245 Va. 255, 264,
427 S.E.2d 363, 368 (1993), and Avocet Development Corp. v.
McLean Bank, 234 Va. 658, 667, 364 S.E.2d 757, 762 (1988), we
approved the introduction of exhibits that summarized voluminous
documentary evidence that was not in dispute.
And, contrary to Puryear's reading of Scott v. Greater
Richmond Transit Co., 241 Va. 300, 305, 402 S.E.2d 214, 218
(1991), and Horne v. Milgrim, 226 Va. 133, 138, 306 S.E.2d 893,
895 (1983), we indicated in those cases that written exhibits
repeating oral testimony given at trial, either by a witness or
by the reading of depositions, should not be introduced into
evidence as exhibits because of the danger that the summarized
oral testimony may receive more emphasis than other oral
testimony. Indeed, we further indicated in Scott that the reason
a written version of the oral testimony in that case should not
be made an exhibit was because a jury can take exhibits into the
jury room pursuant to Code § 8.01-381. 241 Va. at 305, 402
S.E.2d at 218.
Puryear claims that these exhibits were not argumentive, but
were merely illustrative aids. However, his counsel's argument
belies this claim. His counsel argued that Puryear had no duty
to make N & W's case for it and agreed that if Puryear could
introduce these written summaries into evidence as exhibits, N &
W could likewise introduce an exhibit emphasizing the periods of
time that Puryear rode on locomotives which did not exceed the
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FRA noise standards. Thus, if we adopted Puryear's contention,
jury trials could become a battle of charts and summaries of oral
testimony, shifting the jury's attention away from traditional
considerations of each witness's credibility and the jury's
obligation to decide the case based upon its collective
recollection of all the evidence.
Although these summaries of Puryear's oral testimony might
have been used as aids in the presentation of his case, we
conclude that they were clearly inadmissible into evidence as
exhibits. This is because, when admitted into evidence and taken
into the jury room, the summaries of this testimony could have
been reviewed during the jury deliberations and thus would have
impermissibly emphasized Puryear's version of the facts to the
prejudice of N & W.
And, contrary to Puryear's contention, the admissibility of
such summaries is not subject to the discretion of the trial
court. A "trial court has no discretion to admit clearly
inadmissible evidence because 'admissibility of evidence depends
not upon the discretion of the court but upon sound legal
principles.'" Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d
820, 823 (1986)(quoting Crowson v. Swan, 164 Va. 82, 92, 178 S.E.
898, 903 (1935)). Thus, we hold that the trial court erred in
admitting the written summaries into evidence.
Because of the error in admitting the written summaries of
testimony, we will reverse the trial court's judgment and remand
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the case for a new trial. Since the evidence may not be the same
at the new trial, we will not decide whether a proper foundation
was laid for the admission of some of the tests relied upon by
Dr. Campanella in forming his opinion of the excessive noise
levels to which Puryear was exposed.
Reversed and remanded.
JUSTICE KOONTZ, dissenting.
I concur with the majority's decision that the written
summaries of those parts of the testimony favorable to Puryear's
case were erroneously admitted into evidence as exhibits.
Specifically, I agree that the adoption of the practice of
admitting summaries of oral testimony would result in a battle of
charts and summaries of oral testimony, shifting the jury's
attention away from traditional considerations of each witness's
credibility and the jury's obligation to decide a case based upon
its collective recollection of all the evidence. In my view,
however, the error in this case was harmless. See Code
§ 8.01-678.
N & W contends that "the admission of [Puryear's] exhibits,
and their use in the jury room, prejudiced [N & W] and unfairly
elevated the credibility and persuasiveness of oral testimony
offered by [Puryear's] witnesses." The sole question of fact
relevant to this evidence was whether Puryear's hearing loss and
tinnitus were attributable to his exposure to excessive noise on
his job at N & W. While the exhibits erroneously admitted may
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have emphasized the evidence showing this to be the case, the
record as a whole nonetheless supports the jury's verdict
attributing Puryear's hearing loss and tinnitus to conditions of
his employment. Accordingly, I do not see that N & W was
prejudiced by the erroneous admission of the exhibits and would
hold that error to be harmless, substantial justice for the
parties having been achieved.
Furthermore, because I find no error in the second issue
raised by N & W, I would affirm the jury's verdict and award.
Accordingly, I respectfully dissent.
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