649 S.E.2d 294
___________
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. Magnum, 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).
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. (See footnote 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.
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. (See footnote 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.
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).
In determining whether the circuit court erred by denying Mr. Jenkins a new trial, we must
review certain evidentiary and procedural rulings made by the court. Our standard of review
for such rulings was set forth in Syllabus Point 1 of McDougal v. McCammon, 193 W.Va.
229, 455 S.E.2d 788 (1995), as follows:
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.
See also Syllabus Point 1, Bell v. Inland Mut. Ins. Co., 175 W.Va. 165, 332 S.E.2d 127
(1985). (“The imposition of sanctions by a circuit court under W. Va. R. Civ. P. 37(b) for the
failure of a party to obey the court's order to provide or permit discovery is within the sound
discretion of the court and will not be disturbed upon appeal unless there has been an abuse
of that discretion.”); Syllabus Point 5, Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598
(1960) (“Whether a witness is qualified to state an opinion is a matter which rests within the
discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless
it clearly appears that its discretion has been abused.”). With these standards in mind, we
now consider the parties' arguments.
In Anderson, this Court reversed an order of summary judgment in favor of the
defendant which was granted after the plaintiff's standard of care expert was prohibited from
testifying because the plaintiff failed to produce the expert's report within the court-ordered
time frame. This Court found in Anderson that a sanction should have been imposed upon
the attorney rather than the client. 215 W.Va. at 489, 600 S.E.2d at 201. Based on Anderson,
Mr. Jenkins argues that the circuit court should have declared a mistrial in his case and
imposed all costs on his attorney. This would have allowed CSX to re-depose Dr. Ducatman
prior to a new trial.
In response, CSX contends that the circuit court did not err by prohibiting Dr.
Ducatman from relying on Dr. Phifer's test results because Mr. Jenkins failed to supplement
his discovery as required by Rule 26(e) of the West Virginia Rules of Civil Procedure.
During his deposition, Dr. Ducatman stated that he had never prescribed any
neuropsychological testing for Mr. Jenkins and that he did not recall reviewing any test
results from Dr. Phifer. CSX acknowledges that Dr. Ducatman has provided expert
testimony in other similar solvent exposure cases and relied upon neuropsychological test
results in doing so. However, in those cases, Dr. Ducatman referred the plaintiff for
neuropsychological testing. Because he did not refer Mr. Jenkins for such testing and
because Mr. Jenkins did not supplement his discovery, CSX says it had no reason to believe
that Dr. Ducatman would give a causation opinion at trial.
CSX further argues that Mr. Jenkins' reliance upon Anderson is misplaced. In that regard, CSX points out that the report at issue in that case was eventually produced before trial. Here, the fact that Dr. Ducatman intended to rely upon Dr. Phifer's test results was not revealed until he began to testify at trial. In sum, CSX argues the trial court's decision to prohibit Dr. Ducatman from testifying about Dr. Phifer's report was in accordance with the Rules of Civil Procedure which are designed to prevent trial by ambush.
In determining whether the trial court erred by excluding Dr. Ducatman's testimony about Dr. Phifer's report, we first look at the requirements of Rule 26 of the West Virginia Rules of Civil Procedure. Rule 26(b)(4) provides, in pertinent part:
Trial preparation: experts. _ Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A)(i) A party may through interrogatories require any other
party to identify each person whom the other party expects to
call as an expert witness at trial, to state the subject matter on
which the expert is expected to testify, and to state the substance
of the facts and opinions to which the expert is expected to
testify and a summary of the grounds for each opinion.
In addition, Rule 26(e) states, in pertinent part:
Supplementation of responses. _ A party who has
responded to a request for discovery with a response that was
complete when made is under no duty to supplement the
response to include information thereafter acquired, except as
follows: (1) A party is under a duty seasonably to supplement that
party's response with respect to any question directly addressed
to:
. . . .
(B) The identity of each person expected to be called as
an expert witness at trial, the subject matter on which the expert
is expected to testify, and the substance of the expert's
testimony.
In this case, it is undisputed that Mr. Jenkins failed to comply with Rule 26(e) because he did
not notify CSX that Dr. Ducatman had reviewed Dr. Phifer's report and intended to rely upon
it to give his opinion at trial regarding the cause of Mr. Jenkins' injury.
“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). Rule 37(b) provides, in pertinent part:
(2) Sanctions by court in which action is pending. _ If a
party or an officer, director, or managing agent of a party or a
person designated under Rules 30(b)(6) or 31(a) to testify on
behalf of a party fails to obey an order to provide or permit
discovery, including an order made under subdivision (a) of this
rule or Rule 35, or if a party fails to supplement as provided for
under Rule 26(e), or if a party fails to obey an order entered
under Rule 26(f), the court in which the action is pending may
make such orders in regard to the failure as are just, and among
others are the following:
(A) An order that the matters regarding which the order
was made or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the
claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or prohibiting
that party from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition
thereto, an order treating as a contempt of court the failure to
obey any orders except an order to submit to a physical or
mental examination;
(E) Where a party has failed to comply with an order
under Rule 35(a) requiring that party to produce another for
examination, such orders as are listed in subparagraphs (A), (B),
and (C) of this paragraph, unless the party failing to comply
shows that that party is unable to produce such person for
examination.
In lieu of any of the foregoing orders or in addition
thereto, the court shall require the party failing to obey the order
or the attorney advising that party or both to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless
the court finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust.
After carefully reviewing the record and considering the parties' arguments,
we are unable to find that the circuit court abused its discretion by prohibiting Dr. Ducatman
from testifying about Dr. Phifer's report. We have explained that “[u]nder the abuse of
discretion standard, we will not disturb a circuit court's decision unless the circuit court
makes a clear error of judgment or exceeds the bounds of permissible choices in the
circumstances.” Hensley v. West Virginia Dep't of Health and Human Res., 203 W.Va. 456,
461, 508 S.E.2d 616, 621 (1998) (quoting Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d
147, 159 (1995)). Given the facts and circumstances in this case, we cannot say that the
court made a clear error of judgment. Moreover, the decision to exclude the testimony was
certainly within the range of permissible sanctions under Rule 37.
We are not persuaded by Mr. Jenkins' argument that this case is similar to Anderson. As noted above, the plaintiff's failure to comply with the discovery rules was
evident in Anderson prior to trial. Upon review of the record in that case, we concluded that
several different sanctions could have been imposed instead of striking the witness including
admonishment and monetary sanctions against the plaintiff's counsel. In the case at bar, Dr.
Ducatman was actually on the stand at trial ready to testify when the court learned that there
had been a violation of Rule 26. The facts of this case are more on point with those of Graham v. Wallace, 214 W.Va. 178, 588 S.E.2d 167 (2003).
In Graham, a former patient brought a medical malpractice action against his
oral surgeon. At trial, the defendant called Dr. Phillip Hutt to testify as an expert in oral and
maxillofacial surgery. Counsel for the defendant elicited testimony from Dr. Hutt about the
proper way to perform a certain procedure even though his opinion on this issue had not been
previously disclosed to the plaintiff. After the jury returned a verdict in favor of the
defendant, the plaintiff sought a new trial on the basis that Dr. Hutt's testimony should have
been excluded. Upon appeal, we determined that the plaintiff had been unfairly surprised by
Dr. Hutt's testimony. 214 W.Va. at 185, 588 S.E.2d at 174.
In Graham, this Court noted that “one of the purposes of the discovery process
under our Rules of Civil Procedure is to eliminate surprise. Trial by ambush is not
contemplated by the Rules of Civil Procedure.” 214 W.Va. at 184, 588 S.E.2d at 173
(quoting McDougal v. McCammon, 193 W.Va. 229, 236-37, 455 S.E.2d 788, 795-96 (1995)).
We further explained that
[t]he discovery process is the manner in which each party in a
dispute learns what evidence the opposing party is planning to
present at trial. Each party has a duty to disclose its evidence
upon proper inquiry. The discovery rules are based on the belief
that each party is more likely to get a fair hearing when it knows
beforehand what evidence the other party will present at trial.
This allows for each party to respond to the other party's
evidence, and it provides the jury with the best opportunity to
hear and evaluate all of the relevant evidence, thus increasing
the chances of a fair verdict.
214 W.Va. at 184-85, 588 S.E.2d at 173-74.
The transcript of the trial proceedings shows that the court considered other
options before ultimately ruling that Dr. Ducatman could not testify about Dr. Phifer's test
results. In that regard, the Court stated:
If this was going to be a month, month and a half trial,
and we were able to do, I would - quite frankly, what I would
do is have you redepose Dr. Ducatman at a time convenient to
everybody so we can - and I've done that many times during a
trial. But they're lengthy trials. We cannot - I just - we don't
have the time to do that now and that's unfortunate.
This Court affords broad discretion in the use of sanctions under the Rules of Civil Procedure
so that circuit judges may run their courtrooms effectively and efficiently manage their
dockets. Based on all the above, we are unable to find that the circuit court abused its
discretion by refusing to allow Dr. Ducatman to testify about Dr. Phifer's report.
Mr. Jenkins next argues that Dr. Ducatman's testimony concerning the cause
of his injury was sufficient even without any reference to Dr. Phifer's test results and
therefore, the circuit court abused its discretion by refusing to allow the jury to consider his
expert opinion. The circuit court concluded that because Dr. Ducatman could not “diagnose”
Mr. Jenkins with toxic encephalopathy caused by exposure to solvents, the jury could not
consider his testimony regarding Mr. Jenkins. Mr. Jenkins points out that while Dr.
Ducatman stated that he could not “diagnose a causal relationship” without the
neuropsychological report, he still gave strong statements regarding his injury. In particular,
Dr. Ducatman testified that he was “convinced that Mr. Jenkins had a memory problem . .
. convinced he had very substantial solvent exposure . . . convinced that he did not have other
important risk factors other than solvent exposure.” Mr. Jenkins argues that these opinions
were sufficient evidence of causation under FELA and Rule 702 of the West Virginia Rules
of Evidence (See footnote 6) to be presented to the jury.
In response, CSX asserts that Dr. Ducatman's specific testimony about Mr.
Jenkins was properly stricken because he could not testify that Mr. Jenkins' alleged memory
problems were caused by occupational solvent exposure. CSX maintains that Dr.
Ducatman's testimony that he was “convinced” that Mr. Jenkins had a memory problem and
had been exposed to solvents was simply insufficient evidence of causation. Mr. Jenkins
claimed he suffered from a specific medical disease, i.e., solvent-induced toxic
encephalopathy, but Dr. Ducatman was unable to make that diagnosis. Thus, CSX reasons
that Dr. Ducatman's testimony regarding Mr. Jenkins was properly excluded.
In Gardner v. CSX Transportation, Inc., 201 W.Va. 490, 499, 498 S.E.2d 473,
482 (1997), this Court explained that plaintiffs who file FELA actions are required to “prove
the traditional common law elements of negligence: duty, breach, foreseeability, and
causation.” (Citations omitted). Therefore, “[t]o 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, Gardener. This Court has held that,
“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).
Having carefully reviewed Dr. Ducatman's testimony, we do not believe it
warranted a reasonable inference by the jury that Mr. Jenkins suffered an injury that was
proximately caused by the conduct of CSX. While Dr. Ducatman stated that he was
convinced that Mr. Jenkins had memory problems, was exposed to solvents, and had no other
risk factors, he also testified during cross-examination as follows:
Q: You've seen Mr. Jenkins one occasion, as you've testified,
correct?
A: Yes.
Q: You did not diagnose a causal relationship between the
exposure you set forth and his memory problem, correct?
A: That's right.
In light of the fact that Dr. Ducatman specifically stated that he could not make a diagnosis
of toxic encephalopathy caused by exposure to solvents, we are unable find that the trial court
abused its discretion in instructing the jury to disregard Dr. Ducatman's testimony regarding
Mr. Jenkins.
Finally, Mr. Jenkins contends that the circuit court erred by finding that Dr.
Phifer's testimony regarding the cause of his injury was not sufficient to support his claim.
In essence, Mr. Jenkins argues that a neuropsychological expert's testimony alone is
sufficient to establish causation for a brain injury. He notes that in Dolen v. St. Mary's
Hospital of Huntington, 203 W.Va. 181, 506 S.E.2d 624 (1998), this Court found that a
dentist who was an oral surgeon but not a medical doctor was qualified to give an expert
opinion in a medical malpractice case arising out of the defendant's failure to diagnose the
plaintiff's broken jaw. Mr. Jenkins also points out that in Akers v. Cabell Huntington Hosp.,
Inc., 215 W.Va. 346, 355, 599 S.E.2d 769, 778 (2004), a case involving psychological
injuries that the plaintiff developed after being subjected to sexual harassment on the job, this
Court stated that “the determination of a psychologist's competence to render an expert
opinion based on his findings as to the presence or absence of mental disease or defect must
depend upon the nature and extent of his knowledge; it does not depend upon his claim to
the title of psychologist or psychiatrist.” (Citation omitted).
Mr. Jenkins maintains that Dr. Phifer's status as a neuropsychologist should
have had no bearing on whether he could diagnose and give a causation opinion for Mr.
Jenkins' medical injury. He contends that because the circuit court determined that Dr.
Phifer possessed the requisite educational background and experience to qualify as an expert
in clinical and forensic neuropsychology pursuant to Rule 702 of the West Virginia Rules of
Evidence, his opinion concerning the cause of Mr. Jenkins' injury should have been given
the same consideration in terms of admissibility as any other qualified expert, including a
medical doctor, in the area of brain injuries.
In response, CSX argues that the circuit court did not abuse its discretion by
prohibiting Dr. Phifer from testifying as to cause of Mr. Jenkins' injury. CSX states that
contrary to the contention of Mr. Jenkins, the issue is not whether a neuropsychologist can
qualify as an expert, but whether Dr. Phifer was qualified to render an opinion when he
clearly admitted that he was not capable of doing so. CSX concludes that the court properly
precluded Dr. Phifer from giving causation testimony because that was not his area of
expertise.
In Syllabus Point 5 of Gentry v. Magnum, 195 W.Va. 512, 466 S.E.2d 171
(1995), this Court held that,
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.
Having carefully review the record in this case, it is clear that the circuit court found that Dr.
Phifer satisfied the first inquiry required by Gentry. However, the court concluded that Dr.
Phifer's area of expertise did not qualify him to give an opinion as to the cause of Mr.
Jenkins' injury. The decision was based upon the following testimony elicited from Dr.
Phifer by counsel for CSX:
Q: The point is, you make no medical diagnosis, correct?
A: I made a neuropsychological diagnosis.
Q: Yeah. And as Mr. Satterley [counsel for Mr. Jenkins] asked
you, neuropsychology is an important component of a medical
diagnosis of solvent-induced toxic encephalopathy, correct?
A: Yes.
Q: You must also have a companion medical diagnosis for the
two to go together, is that right?
A: Well again, from a neuropsychological perspective, I can say
it's consistent. But again that _ we're stepping out of clinical
things into forensic things.
I'm saying that in terms of the standard of proof
necessary in a court of law, so I'm saying that's really not for me
to decide whether something meets the standard of proof. I'm
saying, from a clinical perspective, it was consistent, but that in
and of itself may or may not meet the standard of proof. Q: Your opinion is, from neuropsychology, you feel that he had
the findings necessary for the neuropsychological component of
this diagnosis to be satisfied, correct?
A: Yes, sir.
Q: You still must have the medical component, correct?
A: Well, I would, certainly would _ I mean, what I said was I
know of _ I don't have the medical component _ I know of no
other competing hypothesis, but I don't have that medical
component in the meantime.
Based upon this testimony, we find that the circuit court did not abuse its
discretion by prohibiting Dr. Phifer from giving an expert opinion as to the cause of Mr.
Jenkins' injury. Unlike the dentist in Dolen who we determined was qualified to give an
expert opinion because his practice included diagnosing broken jaws and reading thousands
of x-ray films, it is clear that Dr. Phifer was not qualified to give an expert opinion because
he cannot make the medical determination necessary for a diagnosis of solvent-induced toxic
encephalopathy. While we said in Akers that a psychologist could not be prohibited from
giving psychiatric testimony simply because he or she did not have a medical degree, we
emphasized that in order to be qualified to give the testimony, the expert must have the
“background, training, and expertise.” 215 W.Va. at 356, 599 S.E.2d at 779. Here, it is clear
that Dr. Phifer was prohibited from giving a causation opinion at trial not because he was a
neuropsychologist as opposed to a medical doctor, but because he acknowledged that he was
not qualified to make the required diagnosis. Accordingly, the circuit court did not abuse its
discretion in excluding the testimony of Dr. Phifer.
Having found that the circuit court did not abuse its discretion in limiting and
excluding portions of the testimony of Dr. Ducatman and Dr. Phifer, we must affirm the
circuit court's decision denying Mr. Jenkins a new trial. Absent evidence of causation, the
circuit court's decision to grant CSX judgment as a matter of law was proper. See Syllabus
Point 6, Gardner, supra. In reaching our decision today, we were, of course, mindful of the
fact that under FELA, “the test of a jury case is simply whether the proofs justify with reason
the conclusion that employer negligence played any part, even the slightest, in producing the
injury or death for which damages are sought.” Rogers v. Missouri Pacific Railroad Co., 352
U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493, 499 (1957).
This does not mean, however, that FELA plaintiffs need make
no showing of causation. Nor does it mean that in FELA cases
courts must allow expert testimony that in other contexts would
be inadmissible. It means only that in FELA cases the
negligence of the defendant “need not be the sole cause or
whole cause” of the plaintiff's injuries. See Oglesby v. Southern
Pacific Trans. Co., 6 F.3d 603, 608 (9th Cir.1993). FELA
plaintiffs still must demonstrate some causal connection
between a defendant's negligence and their injuries. Id[.]
Claar v. Burlington Northern R.R. Co., 29 F.3d 499, 503 (9th Cir. 1994). In Syllabus Point
2 of Crookham v. New York Central Railroad Co., 144 W.Va. 196, 107 S.E.2d 516 (1959),
this Court held that, “In an action prosecuted under [FELA], 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.” (Emphasis added). In this
case, Mr. Jenkins was unable to provide sufficient evidence from which a jury could have
determined that he suffered an injury that was caused in some degree by the conduct of CSX.
Affirmed.