Home / Fulltext Opinions / Supreme Court of Virginia / COMBS v. NORFOLK AND WESTERN RAILWAY CO.





November 6, 1998
Record No. 980024




Robert P. Doherty, Jr., Judge
Present: All the Justices


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. Sects. 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

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
"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 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 45? 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."

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 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

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 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
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 Sect. 54.1-2900. The
term "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 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 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 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
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 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

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,

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 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.
, 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

Affirmed in part, reversed in part, and