Norfolk Southern Ry. Co. v. Rogers

• Court: Virginia Supreme Court
• Writing for the Court: Cynthia D. Kinser
• Citation: Norfolk Southern Ry. Co. v. Rogers, 621 S.E.2d 59, 270 Va. 468 (2005)
• Decision Date: 04 November 2005
• Docket Number: Record No. 050160.
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY, Successor in Interest to Norfolk and Western Railway Company v. Dale ROGERS.

621 S.E.2d 59

NORFOLK SOUTHERN RAILWAY COMPANY, Successor in Interest to Norfolk and Western Railway Company v. Dale ROGERS.

Record No. 050160.

Supreme Court of Virginia.

November 4, 2005.

J.A. Stalnaker (Daniel T. Campbell, Norfolk; Wilcox & Savage, on briefs), for appellant.

David S. Schnitzer (Bondurant Law, on brief), Portsmouth, for appellee.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

This appeal involves an action brought by Dale Rogers under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (2000), against Norfolk Southern Railway Company.¹ Rogers alleged that, during his employment at Norfolk Southern, he was exposed to both asbestos and silica, Norfolk Southern knew or should have known about such exposure, and despite such knowledge, Norfolk Southern failed to provide him with a reasonably safe place to work. A jury returned a verdict in favor of Rogers with regard to his silicosis claim.²

On appeal, Norfolk Southern challenges the admission of certain testimony by Richard A. Vogel, Jr., an industrial hygienist who testified as an expert on behalf of Rogers, as well as the sufficiency of the evidence supporting the jury verdict. We find that Vogel's challenged testimony lacks an adequate factual foundation and that, without his testimony, the evidence is insufficient as a matter of law on the issue of Norfolk Southern's negligence. Thus, we will reverse the circuit court's judgment in favor of Rogers.

I. FACTS AND PROCEEDINGS

Rogers was employed as a "maintenance of way" laborer for Norfolk Southern between 1981 and 1998.³ Maintenance of way crews are responsible for the upkeep and maintenance of the railroad track structures to ensure the safe passage of trains. Rogers worked in the maintenance of way department during his entire career with the railroad. He spent about eight years of that time working outside the Tidewater area of Virginia in locations such as West Virginia and Ohio.

Rogers' work on the railroad tracks sometimes involved rock known as "ballast," which provides a foundation and drainage for railroad tracks. Different railroads use different types of rock as ballast, and the silica content of the rock varies depending on its type. Rogers stated that, during the course of his employment with Norfolk Southern, the composition of the ballast used remained consistent and "[y]ou [could] see sparkles on most of it."

Rogers' crew dumped ballast on the railroad tracks in different ways depending on the type of railroad car containing the ballast. Some cars required workers to shovel the ballast from inside the car through an opening to other workers waiting outside the railroad car who then controlled the flow of ballast with ropes. Other cars dumped the ballast directly onto the tracks. Rogers testified that his job was dusty, and that dumping ballast on the tracks was the dustiest aspect of his duties. According to Rogers, the second dustiest job was operating a piece of equipment called a "double broom," which swept the tracks forwards and backwards after the ballast had been dumped. Other tasks performed by Rogers included repairing the tracks, welding damaged track sections, removing railroad ties, and installing switch panels. From time to time, he also operated a "ballast regulator," which was used to get a sufficient amount of ballast back in the track after a repair, and an "undercutter," a machine used to remove old ballast from a track before new ballast was dumped.

Rogers explained that the dust associated with his various jobs on the maintenance of way crew came from under the tracks, from the dirt surrounding the tracks, and from the ballast. He related that his clothes were covered with dust and dirt after a typical shift of working on the tracks. Because Rogers worked on a "section gang," his exposure to ballast was not continuous; he might be exposed one day and not the next. By the 1990's, Rogers was not dumping ballast on a regular basis.

In 2003, Rogers began experiencing some shortness of breath. He saw Dr. Richard C. Bernstein, a pulmonologist, in July 2003. Dr. Bernstein diagnosed Rogers as having "early silicosis" — "destruction of the lung[s] from silica."⁴ Dr. Bernstein based his opinion on Rogers' description of his occupational history and exposure to dust, chest x-rays, and breathing tests. He opined that Rogers' silicosis was caused by exposure to silica while working on the railroad track.

On the issue of Norfolk Southern's negligence, Rogers called Richard A. Vogel, Jr. as an expert in the field of industrial hygiene. In developing his opinions, Vogel reviewed "[a] number of depositions, answers and questions related to interrogatories, medical histories, work histories taken by a physician," and excerpts from historical documents recording various proceedings of the Association of American Railroads (AAR).⁵ Vogel also spoke with Rogers about his work history and watched a video depicting a maintenance of way crew dumping ballast.⁶

Vogel began by discussing portions of the AAR historical documents. The documents demonstrated that, as early as 1932, the AAR was concerned about the hazards of exposure to silica dust. Reading from the documents, Vogel testified that "[p]neumoconiosis, derived from pneumo, [meaning] lung, and konis, [meaning] dust, is a condition that may be caused by any kind of dust entering the lung, but we as railroad surgeons are undoubtedly more interested in silicosis and asbestosis than any other types." He continued, "[s]ilicosis is caused by breathing free silica into the lungs." The documents also stated that silicosis is a dust disease and a person can contract it only by breathing silica dust.

Based on the information found in the AAR historical documents, Vogel opined that the railroad industry, as of 1935, had recommended standards for industrial hygiene with regard to silica exposure. Those standards included educating workers about the hazard, using methods to limit exposure to dust, providing respirators to workers, using ventilation to control dust levels, using certain handling methods to reduce the emission of dust, and taking measurements to determine the concentration of hazardous material in the air.

Continuing, Vogel testified that the applicable industrial hygiene standards in place during Rogers' employment period were the Occupational Safety & Health Administration (OSHA) standards.⁷ 29 C.F.R.1910.1000 (2000). OSHA regulates worker exposure to silica-containing materials, and the allowable silica level has been constant since 1972. Vogel explained that the level of allowable silica is "based on the percentage of silica in a compound. Ten milligrams per cubic meter divided by the percentage of silica plus two, so it's a moving target. The higher the silica content in the material, the lower the level."

To perform this calculation, the silica content of the material being tested must be known. On direct examination, Vogel was asked:

Q: Is it essential to the calculation to know what the silica content is of the material you're testing?

A: You have to know, otherwise all you're evaluating is exposure to airborne dust.

Q: And that could be from any source?

A: True.

During both his direct testimony and cross-examination, Vogel admitted that he did not know the type of rock that Rogers was exposed to during his employment with Norfolk Southern, nor did he know its silica content.⁸ He agreed that "[i]n order ... to state whether somebody's at risk, you need to know the volume of the substance they were exposed to" and that determination is made by taking an air sample and measuring that sample against the applicable "threshold limit value." Vogel stated that he had not conducted testing with regard to either Rogers' work or similar work performed by other maintenance of way crews. Nevertheless, Vogel testified that "[v]isible dust is an indication that there are no controls or limited control measures in effect ... [and i]f you can see visible dust, there's likely to be a much larger percentage of dust that is not visible to the naked eye." According to Vogel, "[a] visible dust cloud is an indicator of conditions that could generate a respiratory hazard and it's something that should trigger sampling." (Emphasis added.)

Even though he did not know the type of ballast Rogers worked with or its silica content, Vogel opined that Norfolk Southern failed to comply with industrial hygiene standards relating to exposure to silica dust because Norfolk Southern never warned Rogers about the hazards of working with ballast. Furthermore, according to Vogel, Norfolk Southern did not train Rogers in the proper handling of the silica-containing materials, provide workers with respiratory protection, or conduct air samples. Finally, Rogers asked Vogel:

Q: [B]ased on your education, training and certification as an industrial hygienist, based on your review of the existing relevant literature, based on your knowledge of railroad industry practices, based on your viewing of the videotape depicting ballast dumping that is admitted as Plaintiff's Exhibit 1, based on your discussions with Mr. Rogers concerning his work history from 1981 to 1997, based on the then existing OSHA permissible exposure limits, based on the applicable railroad industry standards in effect during the period of his employment, do you have an opinion as to a reasonable degree of industrial hygiene certainty as to whether or not Mr. Rogers was exposed to silica dust during the years of his employment with Norfolk Southern in an amount that exceeded a reasonably safe level?

A: Based on all those factors, yes, I believe he did.

Norfolk Southern objected to this question on the basis that an adequate foundation had not been established for Vogel's opinion. The circuit court overruled the objection and allowed that question along with the following one:

Q: And, Mr. Vogel, based on all those same things ... do...