Jenkins v. CSX Transportation, Inc.

649 S.E.2d 294, 220 W. Va. 721
CourtWest Virginia Supreme Court
DecidedJune 29, 2007
Docket33179
StatusPublished
Cited by14 cases

This text of 649 S.E.2d 294 (Jenkins v. CSX Transportation, Inc.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jenkins v. CSX Transportation, Inc., 649 S.E.2d 294, 220 W. Va. 721 (W. Va. 2007).

Opinions

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 [724]*724the 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 Ducat-man, 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. Du-catman was asked if he had reviewed any neuropsychological test results from Dr. Phi-fer. 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. Ducat-man 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 [725]*725and 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. Dueatman had reviewed the report and was available to be deposed. Dr. Dueatman 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 neuropsy-chological report.

Thereafter, Dr. Dueatman 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. Dueatman 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. Dueatman’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 neu-ropsychological 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.

[726]*726Syllabus 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.

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Bluebook (online)
649 S.E.2d 294, 220 W. Va. 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-csx-transportation-inc-wva-2007.