Jenkins v. Csx Transp., Inc.

• Citation: 649 S.E.2d 294
• Decision Date: 17 May 2007
• Docket Number: No. 33179.,33179.
• Parties: Gary JENKINS, Plaintiff Below, Appellant v. CSX TRANSPORTATION, INC., Defendant Below, Appellee.
• Court: Supreme Court of West Virginia

649 S.E.2d 294

Gary JENKINS, Plaintiff Below, Appellant v. CSX TRANSPORTATION, INC., Defendant Below, Appellee.

No. 33179.

Supreme Court of Appeals of West Virginia.

Submitted April 3, 2007.

Decided May 17, 2007.

Concurring Opinion of Justice Davis May 21, 2007.

Dissenting Opinion of Justice Starcher June 29, 2007.

Syllabus by the Court

1. "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

2. "The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard." Syllabus Point 1, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995).

3. "Rule 37 of the West Virginia Rules of Civil Procedure is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules, i.e., Rules 26 through 36." Syllabus Point 1, Shreve v. Warren Assoc., Inc., 177 W.Va. 600, 355 S.E.2d 389 (1987).

4. "To prevail on a claim under The Federal Employers' Liability Act, 45 U.S.C. § 51 (1939), a plaintiff employee must establish that the defendant employer acted negligently and that such negligence contributed proximately, in whole or in part, to plaintiff's injury." Syllabus Point 6, Gardner v. CSX Transportation, Inc., 201 W.Va. 490, 498 S.E.2d 473 (1997).

5. "`Medical testimony to be . . . sufficient to warrant a finding by the jury of the proximate cause of an injury is not required to be based upon a reasonable certainty that the injury resulted from the negligence of the defendant. All that is required to render such testimony . . . sufficient to carry it to the jury is that it should be of such character as would warrant a reasonable inference by the jury that the injury in question was caused by the negligent act or conduct of the defendant.' Syllabus point 1, in part, Pygman v. Helton, 148 W.Va. 281, 134 S.E.2d 717 (1964)." Syllabus Point 2, Sexton v. Grieco, 216 W.Va. 714, 613 S.E.2d 81 (2005).

6. "In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court must determine whether the proposed expert (a) meets the minimal educational or experiential qualifications (b) in a field that is relevant to the subject under investigation (c) which will assist the trier of fact. Second, a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify." Syllabus Point 5, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).

7. "In an action prosecuted under the Federal Employers' Liability Act, negligence of the defendant need not have been the sole proximate cause of the injury, but the negligence of the defendant must have contributed to the cause of the injury in some degree." Syllabus Point 2, Crookham v. New York Central Railroad Co., 144 W.Va. 196, 107 S.E.2d 516 (1959).

Robert F. Daley, Sharon A. Gould, Robert Pierce & Associates, P.C., Pittsburgh, PA, for Appellant.

James W. Turner, William H. Harkins, Jr., Huddleston Bolen, L.L.P., Huntington, for Appellee.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Circuit Court of Ohio County entered on February 17, 2006. In that order, the court denied the motion of the appellant and plaintiff below, Gary Jenkins, for a new trial in this action filed pursuant to the Federal Employers' Liability Act (hereinafter "FELA"), 45 U.S.C. § 51, et seq., against the appellee and defendant below, CSX Transportation, Inc.¹ Mr. Jenkins alleged that he suffered a brain injury as a result of exposure to solvents while he was employed by CSX. Mr. Jenkins sought a new trial after the court granted CSX's motion for judgment as a matter of law upon finding that Mr. Jenkins was unable to provide sufficient evidence of causation at trial.

In this appeal, Mr. Jenkins contends that the circuit court abused its discretion by first, limiting and then later, excluding a portion of the testimony of his medical expert. Mr. Jenkins further argues that the circuit court abused its discretion in limiting the testimony of his expert in the field of neuropsychology such that he could not give an opinion as to the cause of Mr. Jenkins' alleged brain injury. Mr. Jenkins seeks a new trial. This Court has before it the petition for appeal, the designated record, and the briefs and argument of counsel. For the reasons set forth below, the final order is affirmed.

I. FACTS

On August 19, 2002, Mr. Jenkins filed suit against CSX, his former employer, alleging that he suffered from a specific medical condition known as toxic encephalopathy² as a result of excessive exposure to occupational solvents during his employment.³ During discovery, Mr. Jenkins named Alan Ducatman, M.D., as his medical causation expert. While Dr. Ducatman was the only medical doctor designated by Mr. Jenkins, he also listed Dr. James Phifer, a neuropsychologist, as an expert witness.

On November 19, 2004, CSX deposed Dr. Ducatman. During the deposition, Dr. Ducatman was asked if he had reviewed any neuropsychological test results from Dr. Phifer. In response, Dr. Ducatman testified that, "I do not recall seeing a report from Dr. Pfeiffer [sic] relating to this patient. It does not mean that I haven't seen one." Having not reviewed Dr. Phifer's report, Dr. Ducatman did not give an opinion with regard to the cause of Mr. Jenkins' brain injury. At the end of the deposition, CSX reserved the right to re-depose Dr. Ducatman in the event that he was provided Dr. Phifer's report to review. However, CSX never reconvened Dr. Ducatman's deposition.

Dr. Ducatman was called to testify at trial on behalf of Mr. Jenkins on June 16, 2005. Dr. Ducatman began his testimony by discussing the general science regarding the connection between exposure to solvents and injuries to the brain. When Dr. Ducatman began to address Mr. Jenkins' specific injury, CSX objected on the grounds that it never had an opportunity to depose Dr. Ducatman after he reviewed Dr. Phifer's report. CSX stated that it had not been informed that Dr. Ducatman had reviewed Dr. Phifer's report and that he was going to rely upon it to give an opinion as to the cause of Mr. Jenkins' injury. The circuit court sustained CSX's objection stating that it was Mr. Jenkins' duty under Rule 26 of the West Virginia Rules of Civil Procedure to file a supplemental disclosure or otherwise notify CSX that Dr. Ducatman had reviewed the report and was available to be deposed. Dr. Ducatman was allowed to continue his testimony but only to the extent that he could form an opinion regarding Mr. Jenkins' injury without any reference to Dr. Phifer's neuropsychological report.

Thereafter, Dr. Ducatman testified that, "At the time I saw Mr. Jenkins, I was convinced he had a memory problem. I was convinced that he had very substantial solvent exposure, and I was convinced he did not have other important risk factors than the solvent exposure." On cross-examination, Dr. Ducatman acknowledged that without the benefit of neuropsychological information, he was unable to "diagnose" Mr. Jenkins with memory loss caused by exposure to solvents during his employment. The circuit court then instructed the jury to disregard Dr. Ducatman's testimony as it related to Mr. Jenkins because he "did not diagnose a causal relationship between Mr. Jenkins' exposure and any memory problem."

The jury then heard testimony from Dr. Phifer who was qualified as an expert in the area of clinical and forensic neuropsychology. Dr. Phifer gave testimony with regard to general causation and solvent injuries to the brain. Thereafter, the circuit court excused the jury and then heard additional testimony from Dr. Phifer regarding Mr. Jenkins.⁴ Dr. Phifer opined within a reasonable degree of neuropsychological certainty or probability that Mr. Jenkins' deficits are consistent with toxic encephalopathy as a result of his exposure to solvents during his employment. Dr. Phifer acknowledged though that diagnosis of toxic encephalopathy requires two elements: the medical component and abnormal neuropsychological testing results. As a non-physician, Dr. Phifer stated that he was unable to offer a medical diagnosis of Mr. Jenkins and could only testify about his neuropsychological testing results.

After hearing the testimony, the court concluded that Dr. Phifer's opinion was not sufficient to support a finding of causation especially in light of Dr. Ducatman's testimony that he was unable to make a diagnosis of solvent-induced toxic encephalopathy. Mr. Jenkins offered no additional evidence of causation. CSX then moved for judgment as a matter of law and the court granted the motion. Thereafter, Mr. Jenkins filed a motion for a new trial which was denied in the final order entered on February 17, 2006. This appeal followed.

II. STANDARD OF REVIEW

As set forth above, Mr. Jenkins has appealed the final order of the circuit court which denied him a new trial.⁵ This Court has held that,

Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va....