RECORD NO. 000069
-; .
NORFOLK AND WESTERN RAILWAY COl\1PANY, Appellant, v.
RONALD L. BOWLES, Appellee.
JOINT APPENDIX
James F. Johnson John A. Gibney, Jr. John D. Eure SHUFORD, RUBIN & GIBNEY Robert S. Ballou Post Office Box 675 JOHNSON, AYERS & MATTHEWS Richmond, Virginia 23218 302 Second Street, S.W. (804) 648-4442 Post Office Box 2200 Roanoke, Virginia 24009-2200 Raphael E. Ferris (540) 982-3666 RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN, P.C. Counsel for Appellant Post Office Box 1791 Roanoke, Virginia 24008-1791 (540) 344-3233
Gregory M. Tobin PRATT & TOBIN, P.C. Post Office Box 179 East Alton, Illinois 62024 Counsel for Appellee
LANTAGNE LEGAL PRINTING 801 East Main Street Suite 1~0 ~ichmo~d , Virginia 23219 (804) 644-0477 A Division of Lantagne Duphcatrn:: ServiCes Table of Contents Page Number
Motion for Judgment filed 7/21/97 ...... 1
Grounds of Defense filed 8/5/97 ...... 4
Defendant's Fourth Motion in Limine filed 2/5/99 ...... 5-A
Excerpts from Transcripts of Proceedings before the Honorable Robert P. Doherty, Jr. on the following dates:
3/4/99 ...... 5-E
3/9/99 ...... 6
Testimony of James Simmons ...... 56 Testimony of William Dowdy ...... 79 Testimony of Michael Shinnick, Ph.D ...... 100 Testimony of Robert Widmeyer ...... 162
3/10/99 ...... 167
Testimony of Michael Shinnick, Ph.D ...... 169 Testimony of Ronald Bowles ...... 219
3/11/99 ...... 296
Testimony of Gary Ramsey ...... 302 Testimony of Michael Solesbee ...... 328
Motion to Set Aside the Verdict filed 4/23/99 ...... 337
Order entered 5/5/99 ...... 340
Letter from the Honorable Robert P. Doherty, Jr. dated 9/9/99 ...... 344
Final Order entered 10/8/99 ...... 351 EXHIBITS
Exhibit A to Brief in Support of Defendant's Motion to Set Aside Verdict - Jury Report - filed 3/9/99 ...... 354
Plaintiff's Exhibit #2 - Photo - filed 3/9/99 ...... 364
Court Exhibit #1 - Jury List - filed 3/9/99 ...... 365
ASSIGNMENTS OF ERROR ...... 369 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF ROANOKE
RONALD L. .BOWLES I ) ) Plaintiff, ) ) vs. ) Civil Action No. Q_)_C\ \- 8~~ ) NORFOLK AND WESTERN RAILWAY ) COMPANY, a Corporation, ) ) Defendant. ) ) PLEASE SERVE SUMMONS ON: ) ) Mr. Wiley F. Mitchell, Jr. ) Registered Agent ) ~-Norfolk Southern Corporation ) .~Three. Commercial Place ) ~ Norfolk, VA 23510-2191 ) ~ MOTION POR JUDGMENT COMES NOW the Plaintiff, RONALD L. BOWLES, and his attorneys,
.;,:. ~ !RATTI BRADFORD & TOBIN, P.C., and RIDER, THOMAS, CLEAVELAND, C3 ) i i RRIS & EAKIN and for his cause of action against the Defendant, 5 ~ N RFOLK AND WESTERN RAILWAY COMPANY, a Corporation, alleges as
.I:~~ llows: ~; t: ·] ~ ·~8 1. That on or about June 23, 1993, and for some time prior
r~~~~mi~ereto 1 • the Defendant 1 NORFOLK AND WESTERN RAILWAY COMPANY 1 a ~~orat~on, was engaged in the business of interstate commerce in ·; '-'?
:.> ~ ;- ...... ~ ~ ~ gtjjd _ throughout the several states of the United States as a common 'g-CJ_or"'lt.O.e z ~ ~ :_:j ~ ~irrier by railroad; and for the purpose thereof did operate and do business in and about the City of Roanoke, in the State of Virginia. 2. This case is being refiled pursuant to Court Order. 3. That at said time and prior thereto, Plaintiff was employed by the Defendant as a machinist and was engaged in the performance of his duties as such worker at the time he was injured
1 on the aforesaid date as hereinafter alleged. 4. That at said time and prior thereto, Defendant was engaged in interstate commerce as a common carrier by railroad, and all or part of Plaintiff's duties as an employee of the Defendant were in furtherance of interstate commerce and closely, directly and substantially affected the same, by reason whereof the rights and liabilities of the parties were governed by the Act of Congress known as the Federal Employers' Liability Act, 45 u.s. Code, Section 51-60. s. That on or about June 23, 1993, Plaintiff was engaged in the course of his employment with Defendant at or near Roanoke, Virginia, when he was caused to be severely and permanently injured while attempting to compress a shock-absorber and was caused to be injured, as a result, in whole or in part, of the carelessness and negligence of the Defendant. 6. That Defendant, by and through its duly authorized agents and employees, was then and there guilty of one or more of the following negligent acts or omissions in violation of the Federal Employers' Liability Act: (a) Failed to provide safe and suitable tools and equipment to perform the task assigned; (b) Failed to provide a reasonably safe place to work; (c) Failed to provide reasonably safe methods of work; (d) Failed to furnish sufficient manpower to perform the task assigned;
6. That as a result, in whole or in part, of one or more of
2
2 the foregoing negligent acts or omissions, Plaintiff sustained severe and permanent injuries to his back, spine, and body resulting in disability and disfigurement and which has caused and will cause him in the future to suffer qreat pain and mental anguish; and he has lost and will in the future lose earninqs he otherwise would have earned but for his injury; and he has been and will in the future be compelled to obligate himself for medical aid and attention; and his future earning capacity has been seriously diminished thereby; All To The Damage of the Plaintiff in a sum of THREE.MILLION DOLLARS ($3,000,000.00).
WHEREFORE, Plaintiff, RONALD L. BOWLES, prays judgment against the Defendant, NORFOLK AND WESTERN RAILWAY COMPANY, a Corporation, in a sum of THREE MILLION DOLLARS ($3,000,000.00), and for costs of suit. RONALD L. BOWLES
PLAINTIFF DEMANDS PRATT, TRIAL BY JURY.
BY: --~~--~--~~~~~~~------GREGORY M. T BI #26571 Attorneys for Plaintiff P. o. Box 179 Route 111 at Airline Drive East Alton, IL 62024 Telephone: (618) 259-8011 RIDER, CLEAVELAND, FERRIS &
BY: DEN A. EAKIN P.O. Box 1791 322 Luck Avenue, SW Roanoke, VA 24008-1791 Telephone: (540) 344-3233
3 3 VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF RO
RONALD L . BOWLES Plaintiff GROUNDS OF DEFENSE v. Case No. 770CL97000825-00 NORFOLK AND WESTERN RAILWAY COMPANY Defendant
For its Grounds of Defense to Plaintiff's Motion for Judg- ment, Defendant states: (1) It admits the allegations contained in paragraphs 1 and 4 of the Motion for Judgment; it admits that on the date referred to in the Motion for Judgment Plaintiff was employed by it as a Machinist; and it denies each and every other allegation con- tained in the Motion for Judgment. (2) It denies that Plaintiff is entitled to recover from it the amount alleged in the Motion for Judgment or any other sum whatsoever. (3) It denies that it has violated any legal duty that it may have owed to Plaintiff. (4) It alleges, as an affirmative defense, that any inju ries and damages that Plaintiff may actually have sustained were caused solely by his own negligence. (5) It alleges, as an affirmative defense, that Plaintiff
LAW OFFICES was guilty of contributory negligence with regard to any injuries IOHNSON. AYERS a MATTHEWS P. 0. BOX 2200 and damages that he may actually have sustained. OANOKE. VA. 2•000 (6) It alleges, as an affirmative defense, that Plaintiff has failed to mitigate his damages. 4 ·- (7) It.·alleges, as an affirmative defense, that the claim set forth against it in the Motion for Judgment is barred by the applicable statute of limitations. Respectfully, NORFOLK AND WESTERN RAILWAY COMPANY
Byy~J~~~Of unsel
James F. Johnson Va. Bar Code 03412 Johnson, Ayers & Matthews P. 0. Box 2200 Roanoke, Virginia 24009 Of Counsel for Defendant
CERTIFICATE OF MAILING
I, James F. Johnson, of counsel for Defendant, hereby certify that a true copy of the foregoing Grounds of Defense was mailed to Gregory M. Tobin, P. 0. Box 179, East Alton, Illinois 62024, and to Lenden A. Eakin, P. 0. Box 1791, Roanoke, Virginia 24008, counsel of record for Plaintiff, this 4~ day of August, 1997.
LAW OFFICES JOHNSON, AYERS & MATTHEWS P. 0. BOX 2200 !OANOKE, ~. z•ooe
- 2 - 5 r
V I R G I N I A :
IN THE CIRCUIT COURT FOR THE CITY OF ROANOKE
RONALD L. BOWLES, ) ) Plaintiff, ) ) DEFENDANT'S FOURTH v. ) MOTION IN LIMINE ) NORFOLK AND WESTERN RAILWAY ) Case No. CL 97000825-00 COMPANY, ) ) Defendant. ) Defendant, Norfolk and Western Railway, by counsel, moves in limine to exclude the testimony of Michael Shinnick regarding certain opinions that he may give as to whether the tasks that Plaintiff was performing at the time of his alleged accident and injury were reasonably safe, and in support thereof, Defendant states as follows:
1. Plaintiff has identified Michael Shinnick as an expert who may testify in this matter regarding a purported ergonomic analysis of Plaintiff's work site. A copy of Mr. Shinnick's reports dated August 14 and October 30, 1998, are attached as Exhibits 1 and 2. 2. Defendant moves to exclude any opinion testimony from Mr. Shinnick based upon conclusions that he has drawn because of subsequent remedial actions taken by the railroad, which testimony this Court has excluded by Order dated January 12, 1999.
3. Defendant expects Plaintiff to elicit opinion
LAW OFFICES testimony from Mr. Shinnick that Defendant had notice that JOHNSON. AYERS & MATTHEWS P 0 BOX 2200 Plaintiff's work task was unsafe because of (a) worker ROANOKE. VA. 2•009 complaints; (b) the hazards of the job "cry out" for hazard
5 -A prevention; and (c) it was a "simple procedure to prevent the
hazards, since the railroad got clamps to complete the task
within a matter of weeks following Plaintiff's alleged accident
and injuries."
4. These opinions involve matters that are within the
range of common, everyday experience. The Supreme Court of
Virginia has repeatedly held that expert testimony regarding
matters within the range of common experience is inadmissible.
See Board of Supervisors v. Lake Services, Inc., 247 Va. 293,
297 (1994) Chapman v. City of Virginia Beach, 252 Va. 186, 191-
192 (1996); David A. Parker Enterprises v. Templeton, 251 Va.
235, 237-238 {1966).
5. Defendant further expects Plaintiff to elicit the
opinion from Mr. Shinnick that the "lifting requirements of
[the] job totally disregarded the American Association of
Railroads recommendations." Yet Mr. Shinnick states within his
report that "any lifting techniques that might have been
presented to employees could not be used when compressing shock
absorbers II Accordingly, Plaintiff should not be
permitted to have Mr. Shinnick testify regarding lifting
requirements or guidelines, since, as Mr. Shinnick states, such
guidelines are not applicable to the task Plaintiff was
performing at the time of his alleged accident and injury.
6. Defendant expects Plaintiff to elicit testimony from
Mr. Shinnick regarding the forces necessary to compress a shock
LAW OFFICES JOHNSON. AYERS absorber. The circumstances under which Plaintiff was a MATTHEWS P 0 BOX 2200 ROANOKE. VA 24009 - 2 - ,-.
compressing a shock absorber at the time of his alleged accident
and injury are not substantially similar to those under which
Mr. Shinnick compressed shock absorbers in that it is impossible
to determine the amount of force that Plaintiff was exerting
upon a shock absorber at the time of his alleged accident and
injury. Further, the amount of force necessary to compress a
shock absorber is variable and acts in indirect proportion to
the force exerted upon the shock absorber.
7. Testimony by Mr. Shinnick regarding the amount of
force placed upon a shock absorber or the body while compressing
a shock absorber are not admissible where the conditions at the
time of the test to determine such force were not substantially
similar. Tittsworth v. Robinson, 252 Va. 151, 154 (1996).
WHEREFORE, Norfolk and Western Railway Company requests the
Court to exclude the ergonomic testimony of Plaintiff's expert
and to grant it such other and further relief as the Court deems
appropriate.
NORFOLK AND WESTERN RAILWAY COMPANY
By: (!h4;ut_ Of Counsel
James F. Johnson, Esquire Virginia State Bar No. 03412 Robert s. Ballou, Esquire Virginia State Bar No. 28080 Johnson, Ayers & Matthews P.O. Box 2200 . Roanoke, Virginia 24009-2200
LAW OFFICES (540) 982-3666 JOHNSON. AVERS (540) 982-1552 (facsimile) 6 MATTHEWS P 0 BOX 2200 Counsel for Defendant ROANOKE. VA 24009 - 3 -
5-G. CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing Defendant's Fourth Motion in Limine was mailed to Gregory M. Tobin, Esquire, Pratt & Tobin, P.C., Route 111 at Airline Drive, P.O. Box 179, East Alton, Illinois 62024, and to Lenden A. Eakin, Esquire, Rider, Thomas, Cleaveland, Ferris & Eakin, P.C., 22 Luck Avenue, s.w., P.O. Box 1791, Roanoke, Virginia 24008-1791, counsel for Plaintiff, this t:ffl-day of February, 1999.
LAW OFFICES JOHNSON. AVERS & MATTHEWS P 0 BOX 2200 ROANOKE. VA 24009 - 4 - Pages fran 3/4/99 Hearing Transcript, pages 3-7. 3
1 The following cause came on to be he:a.r....! .::.:1
2 March 4, 1999 at 11:30 a.m. before the Honorable Roc~~~ ~.
3 Doherty, Jr., Judge of the Circuit Court for the Ci~y 0=
4 Roanoke, sitting in Roanoke, Virginia. 5
t .. 6 THE HONORABLE ROBERT P. DOHERTY, JR.: th.:
7 are here in the case of Bowles v. N & W, CL 8 97-825. We are here on motions.
9 MR. BALLOU: Judge, this is the Defend~nt's 10 fourth Motion in Limine regarding the expected 11 expert testimony of Michael Shinnick.
12 THE COURT: The same doctor we had in the
... 13 last hearing?
14 MR. BALLOU: The same fellow that was lh~re 15 for the last hearing. This is a case set for 16 trial for three days, starting on Tuesday. We 17 have provided to you in connection with the f.lotion 18 in Limine the report of Mr. Shinnick. He has 19 rendered a couple of different reports, but 20 subsequently the October 30, supplemental report 21 contains his opinion regarding liability. 22 We also expect him to give vocational 23 testimony. This goes only to the liability 24 testimony that he is going to give.
~.
CENTRAL VIRGINIA REPORTERS (540)380-5017 5-E. ,...------···14
I i I 1 THE COURT: Okay. I 2 MR. BALLOU: I can provide you a copy vi I
3 the Motion in Limine if it would ba easier fo::: ~· ou
4 to have it.
5 THE COURT: Since Ray was here in our 1-~~
6 hearing, instead of going into gr~at detail, ii \le
7 hit exactly the same points in our last hearing
8 MR. BALLOU: Many of them are the sam~.
9 Let me give you a factual background, I know you 10 heard something on the last case and have sor,i.c-:; 11 knowledge. 12 This is a gentleman who in June of 1993 was
;-·. -- 13 '• compressing a shock absorber on a locomotive when 14 he felt a stinging in his back. He worked a few
15 days after, he felt the pain in his back. He
16 reported the incident on that, on the day that it 17 occurred, and then began to mark off from the 18 railroad on July 14 of 1993 and has not returned 19 to work since. 20 THE COURT: Okay.
21 MR. BALLOU: We expected Mr. Shinnick to 22 render the opinion that it was an unreasonably or 23 an unsafe workplace.
24 THE COURT: Okay.
(......
CENTRAL VIRGINIA REPORTERS (540)380-5017 5-F 5
1 MR. BALLOU: First we provided to ycu a 2 copy of his report or, let me, I will just p£cvlde
3 it to you, Judge, and that way you will hava i~,
4 the October 30th report. 5 First of all, you have already excluded
6 from evidence at this trial the fact that aft~r 7 the incident, the railroad made available to
8 employees a bar clamp that some of them use, S04al~ 9 of them do not use. 10 THE COURT: Right, I remember that. 11 MR. BALLOU: Under subsequent remedial
12 measures and there is the Stillman doctrine. \Ja
~· •.· . 13 expect Mr. Shinnick to base his opinion -- we 14 would ask that you exclude his testimony to the 15 extent he basis his testimony, not that he -- if 16 he can render an opinion otherwise on other 17 evidence.
18 But to allow him to base his opinion in 19 part on the fact that the railroad has changed the 20 job procedure and also that there were statements 21 made afterwards, again which are, we think 22 inadmissible statements, that it was a quote, bad 23 procedure, and that the railroad was looking for a 24 way to change the procedure, those go to
(,_
CENTRAL VIRGINIA REPORTERS (540)380-5017 5-G 6
1 subsequent remedial measures. They are self
2 critical.
3 Review of the job process afterwards a.c~
4 matters that are not only inadmissible but
5 improper for a Jury to consider for purposes o£ 6 arriving at negligence. And to allow the experc
7 opinion to be based in part on evidence that cl 8 Jury can consider for determining negligence 9 gussies up improper evidence into an expert 10 opinion. 11 If his opinion can be rendered on other 12 bases, then that is a different issue. But we 13 would ask because we cannot cross-examine him on ~.. 14 that particular basis without opening the door to 15 inadmissible evidence, we think it is improper. 16 THE COURT: Your argument is the same as 17 you sat here and listened -- 18 MR. FERRIS: Absolutely, Your Honor. 19 THE COURT: I am going to incorporate by 20 reference everything that was said by all parties 21 in the last hearing and the name of which I have 22 just forgotten. 23 MR. BALLOU: It is Ronald Washington v.
24 N & W, CL 96-1307.
CENTRAL VIRGINIA REPORTERS (540)380-5017 5-H 7
i .. 1 THE COURT: So you have a complete r~co£d.
2 It is my understanding and my feeling is that
3 anything that deals with subsequent remedial
4 methods and statements about subsequent remedi~l
5 methods is not admissible at the trial.
6 However, the fact that the expert, assu~aing
7 he qualifies as an expert, the fact that the
8 expert relies as part of his reasoning for his
9 opinion on things that occurred after the 10 incident, such as subsequent remedial methods or
11 new scientific discoveries or something that
12 someone told him, that is something that is
: '• :· .. ·· 13 normally relied on by experts in his field, he can 14 rely on that.
15 And the fact that it's not a good idea for 16 you to cross-examine him about it doesn't mean 17 that you are excluded from cross-examining him 18 about it. That is the same problem a criminal 19 Defendant runs into when, in order to take the
20 stand and rebut the charge against him, he has got
21 to testify that he didn't commit that murder
22 because he was committing a B & E somewhere else. 23 That is a tough decision that you have to 24 make. That is a decision you all have to decide
CENTRAL VIRGINIA REPORTERS (540)380-5017 5-:J: ('·:. 1 in this case. And I will tell the Plaintiff th~t ··.: . 2 they need to be on their toes, talk to this dcetor 3 and let him know that when he gives his opinion,
4 or if he is asked the reasons for his opinion, h~ 5 cannot talk about subsequent remedial measures or
6 anything anyone else told him, or you have b
7 ~strial on your hand.
0 MR. FERRIS: Ue ean't identify it as a
9 subsequent remedial measure. 10 THE COURT: Be can't talk about it. If 11 they came in and provided a new tool that did this 12 work so there wouldn't be pressure on a person's 13 back, he cannot testify to that unless the 14 Defendant specifically asks him that. 15 You are going to have to school this guy 16 because the Defendant certainly has the right to
17 ~ay, What do you base your opinion on. Your
18 client i~ e~ply going to have to give his
19 reasons, excluding the sUbsequent remedi~l
20 measures. And if the Detenaant says, Well, wasn't
21 there something else like subsequent remedi~l
22 measures, then he could testify to it.
23 MR. F!RRISz Can he, however, may that 24 other ways to perform this job that would he safer
CP.NT~AT. VIRGINIA ~B~ORTERS (540)380-5017 5-=r 1 would include? 2 TBE COURT: No, he can't testify as to 3 other safer methods. That is an entirely 4 different issue.
5 MR. BALLOU: You have already ruled on t.hC&t 6 issue. Judge, the second -- 7 THE COURT: I havAn't read Stillman in the
8 last aix months but I road it abo~t 20 times l63t
!> yea~; 1 eve1.-y one u.C 1-Ju~Jje 1-ha.t; came up. You need
10 to read that case. 11 MR. FERRIS: I understand.
12 THE COURT: Okay.
\: 13 MR. BALLOU: Judge, the seoond issue goes, 14 again, to the four-pronged type opinion that 15 Mr. Shinnick we expect to give and that is whnt a 16 reasonable eDployer should do about creating or 17 instituting programs to detect hazards within the 18 workplace and the fact that it did not do so.
19 Again, that is something that sta~s into the 20 province of the Jury. 21 The only issues in this case as to 22 liability are whether the workplace was unsafe and 23 whether the railroad knew or reasonably snould
24 have known. I don't want to say those are the {: . \
CENTRAL VIRGINIA REPOR~ERS (540)380-5017 1 only issues as to liability. But as to
2 determining whether the railroad provided
3 reasonably safe workplaces, the issue is was ~h~
4 job task unsafe and if so, did the railroad -
5 TBE COURT: Knew or should have known.
6 MR. BALLOU: Know or should have known. 7 TBE COURT: Let me see here. Well, first
8 nff, this is exaetly the same point as in the last
9 c~oo.
10 Ma. BALLOU: Precisely, yes, sir.
ll THE COURT: For purposes of the record, I 12 will adopt everything that was said in the last
( . 13 case, what was it, Washington v. N & W on that ·:~·.:.~ ~. 14 particular point. 15 Ana generally speaking, this simply is 16 going to depend on how it comes about at trial, 17 but as a practical matter, he is not going to be
18 able to testify as tn wh~r. the, what the railroad
19 should have done in thic inotanco to m~kc it OQfcr
20 becau&e that falls into Still~~u.
21 ~e is going to be able to say in his 22 opinion why this was an unsafe activity, We are
23 taking about degrees here, too, because like I
24 said in the last case, he is going to be able to .. " .. ! ' •, .,.·,:
CENTRAL VIRGINIA REPORTERS (540)380-5017 5-L- ll
( ...... : 1 say that this particular job was a job that \. 2 requires use of a mechanical device to compress a 3 spring or requires two men or something like 4 that.
5 On the other hand, if he said that exa.c·t
6 same statement and said, There are two safer
7 mAt.hods to do this, one cf which is to have t~o
8 men do it or one of which ia t.o hAve a. mecllAnit:~:tl
9 u~vlce 1 that's inadmissi~le. It he sai~ it ~he
10 other way it is admissible. That is why, that ~as 11 part of the reason for fencing arcund on your 12 answer last time. 13 MR. FERRIS: I am looking at the court
14 reporter to make sure she got it.
15 ~BE COURT: There is a difference. If he 16 says this is unsafe because that is a two-man job,
17 he can testify to th~t.. But he oann~t testify,
1A This is unsafe and tharo ia A 8Afer way to do it
19 And the safer way- l~ Lu have two men do this job.
20 M.a. l:'.t:RRIS: Let me make sure I understand 21 so in educating my witness so that we don't qet 22 into a mistrial situation. If he were to say, 23 This is a meehanical job -- 24 THE COURT: This is where you get into a t.'· . .. t" -: .,. 6
CENTRAL VIRGINIA REPORTERS (S40)3A0·5017 5-M 1 problem, I can't tell you what to say on that.
2 Stillman is the case we are talking about.
3 MR. PERRIS: Well, respectfully, Your
4 Honor, when I read Stillman, I don't read it tl•~t
5 way. You have seen my written objection to your
6 previous ruling basin; your previous rulin9 on 7 Stillman, but keeping that in mind, as l
9 understood StilLman, Stillman involved an
9 individual who said, There are a hundred safer 10 ways to do it or five safer ways to do it and here
11 is how it should have been done. I understand 12 that. But of course, I don't want to revisit, 13 respectfully revisit this since you have already 14 made your ruling. 15 THE COURT: What if what he is lifting 16 weighs four tons and the expert comes in and says,
17 One man shouldn't lift this, this is a job for 12
18 ~en. He can testify to that. Be can't teetify
19 that ~ eafer Alternative in doing thie job would
20 have been to have 12 man. 21 MR. FERRIS: So he can testify that a man 22 shouldn't do this, a machine should be employed to
23 do this? 24 TBE COURTa Sure.
, 'I 1\ '
CENTRAL VIRGINIA REPORTERS (540)380-5017 5-~ 1:3
1 MR. FERRIS: Or a devioe such as --
2 TBE COURT: No, you have got to be 3 careful. He can testify that that is more than 4 one man could lift based on my scales and charts s and so on. That is a two-man lifting job. 6 MR. FERRIS: To give the Court same 7 factual, a little bit better factual basis, this 8 ian't really a lifting procedure as muoh as it is
!J a compression of a shock.
10 'l'fl! COURT: And. they qot their new ll mechanical compressor in afterwards? 12 MR. FERRIS: Yes, sir. i •' ~.. 13 THE COURT: And theoretically that takes 14 less effort from the individual than doing it 15 without7 16 MR. FBRRIS: Yes, sir. 17 THE COURT: Be can't testify as to what
18 thAy h~vP. nnna and you can't testify as to safer
19 meAGureG. If you get, I vill tell you the eame
20 thing I said before, if you get into ~ problem ana 4!1 you need to present same evidence that you are not
22 sure about, stop and let me hear it. I can ~ule 23 once .I hear the evidence. 24 MR. FERRIS: Okay • ...... \ ·'
CEN~RAL VIRGINIA REPORTERS (540)380-5017
5 ... 0 Incorporated pages (2) fran 3/4/99 Hearing Transcript in Washington v. N.W. 10
1 negligence. Subsequent remedial measures, if it
2 is admissible, is only admissible from the
3 standpoint of proving ownership, feasibility.
4 THE COURT: I agree 100 percent with what
5 you are saying. Be is saying these are not
6 subsequent remedial measures that he is testifying
7 to. Be is saying that as an expert, I have looked
8 at this, and says any expert walking in there
9 would have seen that these hazards existed and any 10 expert would have arranged or suggested employee 11 education, training and medical monitoring.
12 MR. BALLOU: That goes to the second bases 13 of the reason to exclude Mr. Shinnick's opinion. 14 First of all, his own report states that it is, it 15 could have easily been seen, and that steps into
16 the province of the Jury to make a determination 17 as to whether this was an unsafe workplace. 18 THE COURT: You started that, I think the 19 expert can come in and say if an expert had been
20 there at that time, this is what the expert would 21 have seen. And this is the, this is what the 22 expert would have said. 23 And since the report itself is not going
24 in, the expert can say, Here are the hazards I see
CENTRAL VIRGINIA REnn~TERS (540)380-5017 5-P· 11
1 in this job and they are there is a problem here
2 because we don't have enough education for the
3 employee or they are not trained properly, there
4 is not hazard prevention control, meaning there is
5 not a gate around this thing or there is not a
6 wench down to lift this up or something.
7 MR. BALLOU: That, Your Honor, is what goes
8 to the Stillman doctrine. The issue in this case,
9 as in every railroad case, is whether the 10 procedure as it was being performed was reasonably 11 safe, whether there are safer alternative ways in
12 performing that procedure 13 THE COURT: Is not admissible. 14 MR. BALLOU: And irrelevant, I agree. 15 THE COURT: Well, not admissible; I am not 16 sure I would go so far as to say irrelevant. 17 MR. BALLOU: It clearly is not admissible 18 for our purposes and allowing him to base any 19 opinion on measures taken afterwards essentially
20 allows him to be rendering an opinion. I can't 21 cross-examine him on it without opening the door
22 to the fact there are subsequent measures. 23 THE COURT: Let's go over it. This deals 24 with him lifting something, right?
CENTRAL VIRGINIA REPORTF.RS (540)380-5017 5-Q ORIGINAL
V I R G I N I A:
IN THE CIRCUIT COURT
* * * * * * * * * * * * * * * * * * RONALD L. BOWLES, Plaintiff,
-vs- CASE NO.: 97-825
NORFOLK AND WESTERN VOLUME I
RAILWAY COMPANY,
Defendant.
* * * * * * * * * * * * * * * * * *
March 9, 1999
9:30 a.m.
HEARD BEFORE:
THE HONORABLE ROBERT P. DOHERTY, JR.
CENTRAL VIRGINIA REPORTERS PO BOX 12628 ROANOKE, VIRGINIA 24027 (540) 380-5017 \
6 2
I I
APPEARANCES:
PRATT & TOBIN East Alton, Illinois BY: GREGORY M. TOBIN, ESQ.
RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN Roanoke, Virginia BY: RAPHAEL E. FERRIS, ESQ.
Counsel on behalf of the Plaintiff
JOHNSON, AYERS & MATTHEWS Roanoke, Virginia BY: ROBERT S. BALLOU, ESQ.
Counsel on behalf of the Defendant * * * * * I N D E X
WITNESSES DIRECT CROSS REDIRECT RECROSS
FOR THE PLAINTIFF
James Simmons 90 106
William Dowdy 114 122 129
Michael Shinnick, Ph.D. 136
Robert Widmeyer 198 219 231
VOIR DIRE
WITNESS PAGE NO.
Michael Shinnick, Ph.D. 142
I I
CENTRAL VIRGINIA REPORTERS (540} 380-5017 7 3
1
2 E X H I B I T S
3 NUMBER DESCRIPTION PAGE
4 FOR THE PLAINTIFF:
~ 1 Photograph 94
6 2 Photograph 94
7 3 Photograph 96
8 4 Photograph 96
9 5 Curriculum Vitae 181
10
11 PLAINTIFF'S (Refused)
12 LETTER DESCRIPTION PAGE
13 z Compression forces 162
14 y Liberty Mutual Snook
15 1991 Force of Push 163
16 X Ergonomics Job Analysis 163
17 w Videotape 192
18 COURT'S EXHIBIT
19 LETTER DESCRIPTION PAGE
20 1 List of Jurors 89
21
22 23 * * * * * 24
, CENTRAL VIRGINIA REPORTERS (540) 380-5017 8 4
1 The following cause carne on to be heard
2 before the Honorable Robert P. Doherty, Jr.,
3 Judge of the Circuit Court of the City of
4 Roanoke, and a Jury of seven sitting at Roanoke,
5 Virginia, at 9:30a.m., on this, the 9th day of
6 March 1999.
7 Patricia A. Smithlin, RPR, Court Reporter,
8 was duly sworn and the following took place:
9
10 THE CLERK: We have Case Number CL97-825,
11 Ronald L. Bowles versus Norfolk and Western
12 Railway. Is the Plainti-ff ready?
13 MR. FERRIS: We are ready. 14 THE CLERK: Is the Defendant ready?
15 MR. BALLOU: We are, Your Honor.
16 THE COURT: Before we get started we 17 are starting real late. It is five minutes until 18 11:00. We have been hung up because of the snow 19 and a lot of jurors were unable to get in, and we 20 have got three juries going ahead today, and we 21 delayed to allow one of the criminal cases to
22 take the total of 40 jurors that showed up and 23 let them choose first, and then all the rest of
24 the jurors are waiting out in the hallway and we
CENTRAL VIRGINIA REPORTERS (540} 380-5017 9 5
1 will call them in and start with our case. 2 Prior to that time, there is a motion by 3 the Defendant for a mistrial. Would you put your 4 motion on the Record? 5 MR. BALLOU: It is a Motion to Continue, 6 not for a mistrial, and the basis for the motion 7 is that under Section 8.01353 the statute 8 contains mandatory language that the parties are 9 entitled, upon making a proper request to the 10 Court, to receive the list of the expected
11 venires for this particular case along with the 12 juror information contained on that. 13 We made an appropriate request, as I know 14 the Plaintiff did as well, and with the Court's 15 permission I will offer -- I do not have a clean 16 copy of the list that we were provided, but I 17 will provide one for the Court at a break. We 18 understand that the venire as it exists now 19 contains names that were not provided and that is 20 because of the reasons that you explained, that 21 jurors did not show up due to inclement weather. 22 The statute does require that we be 23 provided that information at least 48 hours in 24 advance.
\ CENTRAL VIRGINIA REPORTERS (540) 380-5017 10 6
1 Additionally, because of the inclement
2 weather we understand that many Jurors are
3 concerned about getting home, caring for their t 4 families and so forth, and it would be
5 appropriate to ask for this matter to be
6 continued.
7 We would object to the venire being formed
8 in the way it is.
9 THE COURT: Do you have a response to 10 that?
11 MR. FERRIS: Your Honor, Subsection A of
12 the statute of the section that has been cited by 13 Mr. Ballou 14 THE COURT: Tell me the code section 15 again.
16 MR. BALLOU: 8.01353.
17 MR. FERRIS: It contains a sentence 18 stating that any errors in the list provided
19 shall not be a basis for mistrial or appeal as I
20 recall, and I don't have the statute right in
21 front of me.
22 I would submit to the Court that any
23 omissions from that list would constitute an
24 error under that section of the code, and, hence,
I CENTRAL VIRGINIA REPORTERS (540) 380-5017 11 7
1 would not be fatal to the seating of the Jury and
2 we would like to proceed.
3 MR. BALLOU: The only additional thing I
4 would add, Judge, is that the omissions that were
5 referred to in the statute go only to the Jury
6 information such as name, age, employer and so
7 forth, not the name of the juror itself.
8 THE COURT: Even though you don't have a
9 clean copy of that, let me glance at it real
10 quick. Is that the master list?
11 MR. BALLOU: No, Your Honor. Our office
12 has the master list and then we obtained from the
13 sheriff at the appropriate time beforehand the
14 names of the persons that are going to be called
15 to form the venire for this particular case.
16 THE COURT: You pick up the master list
17 beforehand?
18 MR. BALLOU: Right, that is my
19 understanding.
20 THE COURT: Well, I overrule your motion
21 for continuance, and the reason I do is first off
22 all the names on the master list are certainly
23 there and made available.
24 Today we have had snow and a lot of jurors
CENTRAL VIRGINIA REPORTERS (540) 380-5017 12 8
1 were unable to come in. We have actually got
2 three juries going, the second day of a criminal
3 jury down the hall, the first day of another
4 criminal jury.
5 Because so many people failed to appear
6 because of the weather and because of the flu
7 that is going around, I have simply taken the two
8 jury panels, combined them into one, let the
9 criminal court go through so that they can pick
10 their criminal jury and go forward, and we have
11 what is left, which should be about 28 jurors
12 left.
13 And the majority of those jurors I think
14 are on the small list for the panel provided by
15 the Court. The remainder of them are on the
16 master list that you have, anyhow.
17 So, I overrule your motion taking the
18 position in the ruling that the list that you
19 have, if it doesn 1 t contain all of these jurors,
20 that is simply an error in the information shown
21 on the copy of the jury panel, and 8.0135 is not
22 grounds for mistrial and for that same reason I
23 find it is not grounds for a continuance.
24 The case is scheduled for three days, we
CENTRAL VIRGINIA REPORTERS (540) 380-5017 13 9
1 have counsel from another state, everybody is
2 here and ready to go forward. The fact that we
3 have bad weather outside and may continue for
4 some time simply means that some of these nights
5 we are going to have to go late. We have only
6 got three days scheduled for this trial so we
7 have to finish in that time.
8 Any other motions before we bring in the
9 Jury?
10 MR. TOBIN: Just as a housecleaning
11 matter, Your Honor, Plaintiff had filed a Motion
12 in Limine that had eight subparts. The parties
13 have agreed that subparts or paragraphs one
14 through six will be sustained and Plaintiff will
15 withdraw paragraphs or subparts seven and eight.
16 Is that correct?
17 MR. BALLOU: We have no objection.
18 THE COURT: I went over your Motions in
19 Limine this morning having had hearings in the
20 past on several other groups of Motions in Limine
21 that you submitted, and based on the fact you all
22 told me it had been resolved I didn't go into it
23 anymore.
24 Whatever it is you agreed to as you have
CENTRAL VIRGINIA REPORTERS (540) 380-5017 14 10
1 just stated in the Record, then I order that as
2 the agreement of the parties.
3 Anything else before we bring in the
4 Jury?
5 MR. TOBIN: No, Your Honor.
6 THE COURT: Bring them all in.
7
8 {The Jury entered the Courtroom 9 and the following took place in the
10 presence of the Court and Jury.)
11
12 THE COURT: My name is Pat Doherty, I am
13 one of the circuit court judges here. Today we
14 have a civil case that we are going to try and
15 the civil case is styled or name of the case is
16 Ronald L. Bowles, who is this gentleman seated
17 over here on my right in the dark shirt, versus
18 Norfolk Western Railway Company.
19 First off, I apologize for the delay this
20 morning. The snow has messed everything up. We
21 have three juries going today and criminal cases
22 have priority on the docket.
23 We did not have individually sufficient
24 jurors in each jury panel to start all the cases
CENTRAL VIRGINIA REPORTERS {540) 380-5017 15 11
1 at the same time, and we were forced to wait to
2 start the civil case until after they chose all
3 the criminal jurors. And so I know some of you
4 have been in the other courtroom in the criminal
5 case.
6 We are going to try to make allowances for
7 the weather. This case is scheduled to last for
8 three days, and we will try to move through a
9 little more rapidly at the start of the case
10 here.
11 So that you all know who all the players
12 are, the Plaintiff a Plaintiff is a person who
13 brings the lawsuit is represented by Mr. Greg
14 Tobin seated over here on my right, and Mr. Ray
15 Ferris. The Defendant is represented by Mr.
16 Robert Ballou over here on my left.
17 The reason I am giving you those names is
18 we will ask you some questions about them in a
19 little bit.
20 Sheriff, go ahead and call the panel,
21 please.
22 · A DEPUTY: If I call your name, if you
23 would please come forward and we are going to
24 start on the back row and fill each chair all the
CENTRAL VIRGINIA REPORTERS (540) 380-5017 16 12
1 way across.
2 Dominique Brown, Todd Oltmanns, Kimberly
3 Gallagher, James Stultz, Jerry Huffman, Frederic
4 Law, Susan Epps, Carolyn Cotton, Joy Bishop, Erin
5 Callahan, James Jackson, Cathy Jones, Eugene
6 Lamar, Ethan Harper.
7 The panel has been called, Your Honor.
8 THE COURT: We have 14, good. Those of
9 you sitting in the back, I guess if you have been
10 in one of these already this morning you know
11 that it is too early for you to give that big
12 sigh of relief that you weren't called because
13 you may yet be up here. 14 If you all would also listen to the
15 questions that I ask as we go through here, it
16 might help speeds things up.
17 Can I have all 14 of you up in front turn
18 and face the clerk and raise your right hand to
19 be sworn in.
20
21 (The prospective Jury was sworn.)
22
23 THE COURT: Thank you. I have some canned
24 questions that I need to go through and ask you.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 13
1 When you answer would you please answer out loud,
2 and if your answer is obviously different than
3 everybody else's, raise your hand or do something
4 because I have to ask you a few more questions.
5 When I get finished the lawyers will ask a
6 few questions and what we are going to do is
7 whittle the number here down to seven jurors and
8 one alternate. You won't know who the alternate 9 is.
10 When all of the lawyers' portion of the
11 case is over with and the final argument has been
12 made and you go back to the Jury room to make
13 your final decision, at that time we will tell
14 you who the alternate is.
15 We have the alternate because of the bad
16 weather outside and because somebody might get
17 hurt or sick between now and the three days it
18 might take us to finish this.
19 I already told you that the Plaintiff's
20 name is Ronald L. Bowles and the Defendant is N
21 and W Railway.
22 Are any of you related by blood or
23 marriage to either party or do any of you know
24 either of the parties.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 18 14
1 A JUROR: I am employed with the Norfolk
2 and Southern Railway.
3 THE COURT: What is your job there?
4 A JUROR: Locomotive engineer.
5 THE COURT: I am going to excuse you and
6 won't ask you any more questions.
7 Sheriff, call the next name.
8 A DEPUTY: Cheryl Francis.
9
10 (The prospective juror was sworn.)
11
12 THE COURT: I am going to ask that
13 question again because you need practice at
14 saying yes or no. I have got some of you shaking
15 your heads, but I couldn't tell which way you
16 were doing it so you have to speak up.
17 Are any of you related by blood or
18 marriage to either party or do you know either of
19 the parties?
20 THE JURORS : No.
21 THE COURT: Are any of you officers,
22 directors, stockholders, ~gents or employees of
23 either of the parties?
24 THE JURORS : No .
CENTRAL VIRGINIA REPORTERS (540) 380-5017 19 15
1 A JUROR: I don't know if it matters but I
2 am doing some artwork for the railway right now.
3 THE COURT: On a contract basis?
4 A JUROR: Yes, free-lance artwork.
5 THE COURT: How long have you been doing
6 it?
7 A JUROR: I just started a couple weeks
8 ago.
9 THE COURT: Do you do your work at the
10 railroad?
11 A JUROR: No.
12 THE COURT: You have just got a commission
13 and are completing a commission for the
14 railroad?
15 A JUROR: Right .
16 THE COURT: I am going to leave you on for
17 now. Ma'am?
18 A JUROR: I am a stockholder.
19 THE COURT: I am going to release you
20 then. You can have a seat back over there.
21 Sheriff, call one more.
22 MR. TOBIN: That was Ms. Cotton; is that
23 correct?
24 A JUROR: Cotton, yes.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 20 16
1 A DEPUTY: Rosemary Tench.
2
3 (The prospective juror was sworn.)
4
5 THE COURT: Ma'am, I will ask you the
6 questions I have already asked these others. Are
7 you related by blood or marriage to either party
8 or do you know either of the parties?
9 THE JUROR: No.
10 THE COURT: Are you an officer, director,
11 stockholder, agent or employee of either of the
12 parties?
13 THE JUROR: No, sir.
14 THE COURT: I will tell you again the
15 names of the lawyers. The Plaintiff is
16 represented by Mr. Greg Tobin and Mr. Ray Ferris,
17 and the Defendant is represented by Mr. Robert
18 Ballou, and I guess I probably ought to get the
19 firm names.
20 Mr. Tobin, your firm name?
21 MR. TOBIN: Pratt and Tobin.
22 THE COURT: Where are you located?
23 MR. TOBIN: In Illinois.
24 MR. FERRIS: · Rider, Thomas, Cleaveland,
CENTRAL VIRGINIA REPORTERS (540) 380-5017 21 17
1 Ferris and Eakin and we are here in Roanoke.
2 THE COURT: Mr. Ballou, what is your
3 firm's name?
4 MR. BALLOU: Johnson, Ayers and Matthews
5 and we also are here in Roanoke.
6 THE COURT: All right. Now that you know
7 who the lawyers are, are any of you friends,
8 clients or former clients of any of the lawyers
9 or their law firms?
10 THE JURORS: No.
11 A JUROR: I graduated with Ray Ferris.
12 THE COURT: Graduated from school with
13 him? Do you keep up with Mr. Ferris on a social
14 basis.
15 A JUROR: No.
16 THE COURT: Do you keep up with him on a
17 business basis?
18 A JUROR: No.
19 THE COURT: Would the fact that you
20 graduated from -- what school?
21 A JUROR: Jefferson High School.
22 THE COURT: Would the fact that you
23 graduated from high school with Mr. Ferris
' \ .. 24 prevent you in any way from listening to all the
CENTRAL VIRGINIA REPORTERS (540) 380-5017 22 18
1 evidence in this case, listening to the law as I
2 give it to you, and then going on back with the
3 jury and making a fair and impartial decision?
4 A JUROR: No.
5 THE COURT: This question is for
6 everybody. Do any of you have an interest such
7 as a financial interest in the trial or the
8 outcome of the case?
9 THE JURORS: No.
10 THE COURT: Have any of you expressed or
11 formed an opinion about the outcome of this
12 case? \.;..; j 13 THE JURORS : No .
14 THE COURT: Have any of you acquired any
15 information about the case from either party or
16 from the news media or other sources?
17 THE JURORS : No.
18 THE COURT: Are any of you sensitive or
19 aware of any bias or prejudice for or against
20 either of the parties to this lawsuit?
21 THE JURORS : No .
22 THE COURT: Do any of you know of any
23 reason whatsoever why you could not give a fair
24 and impartial trial to both parties?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 23 19
1 THE JURORS: No.
2 THE COURT: Let me back up. Mr. Tobin,
3 could you tell me what the names of the witnesses
4 you expect to call over the next several days
5 are?
6 MR. TOBIN: Dr. Robert Widmeyer, Dr.
7 William Cobb, Ron Bowles, Diane Bowles, Jim
8 Simmons, William Dowdy and Dr. Michael Shinnick.
9 THE COURT: Mr. Ballou, can you give me
10 the names of potential witnesses from your side?
11 MR. BALLOU: Lynn Ramsey, Mike Solesbee,
12 Bob Corea, Carol Saunders, Dr. Ward Stevens, and '·· ... 13 Dr. Daniel Schneck.
14 THE COURT: Thank you. Are any of you
15 friends with or related to any of the witnesses
16 that the lawyers have just named?
17 THE JURORS : No.
18 THE COURT: Let me tell you I understand
19 that lots of times people don't recognize people
20 by their names when they are given a long list
21 like that, so you might get partway through the
22 trial and suddenly realize that you recognize
23 someone as a friend that you dealt with.
24 All over the Commonwealth there are small
CENTRAL VIRGINIA REPORTERS (540) 380-5017 24 20
1 communities where trials go on every day and the
f judge knows everybody in town, the lawyers know
3 everybody in down and the jurors know everybody
4 in town, and they are still able to get enough of
5 a jury to get a fair jury panel to try the case.
6 So, the mere fact that you know somebody
7 isn't a reason to prevent you from serving on the
8 jury, but if you do recognize that you know
9 somebody please say something at that time.
10 Ma'am?
11 A JUROR: I grew up with Mr. Ferris'
12 sisters. We lived a couple of doors down from
13 them years ago.
14 THE COURT: Would that fact prevent you
15 from listening to the evidence and the law as I
16 give it and render a fair decision?
17 A JUROR: No.
18 THE COURT: You think you can be fair in
19 this case?
20 A JUROR: Right.
21 THE COURT: This is a long question. Do
22 any of you have any condition or impairment which
23 in your mind would affect your ability to sit in
24 the jury box, see and hear the witnesses, retain
CENTRAL VIRGINIA REPORTERS (540} 380-5017 25 21
1 their testimony and discuss it with your fellow
2 jurors in the jury room after the case is
3 submitted to you for decision?
4 THE JURORS: No.
5 THE COURT: Let me break that down. What
6 I am trying to find out is is there some sort of
7 physical or mental or emotional problem that is
8 going to cause a problem for you all to stay here
9 for three days and hear this case?
10 THE JURORS : No.
11 THE COURT: We go home about dinner time
12 every night and come back the next day.
13 THE JURORS: No .
14 THE COURT: Let me ask some specific
15 questions. Do any of you have any medications
16 that you have to take during the daytime that you
17 would be in real trouble if you couldn't take
18 exactly at the right time?
19 THE JURORS : No.
20 THE COURT: Are there any of you that have
21 to eat exactly at a certain time during the day?
22 THE JURORS : No .
23 THE COURT: By that I am talking about
24 people with diabetes, hypoglycemia or something
CENTRAL VIRGINIA REPORTERS (540) 380-5017 2S 22
1 like that.
2 Do any of you have medical or dental
3 appointments that you have to get to sometime in
4 the next three days?
5 THE JURORS: No.
6 THE COURT: Do any of you have physical
7 therapy appointments that you have to get to in
8 the next three days?
9 THE JURORS : No .
10 THE COURT: Do any of you have small
11 children that you are taking care of over the
12 next three days during the daytime? . __, 13 THE JURORS : No .
14 THE COURT: Do any of you have elderly
15 family members or friends that you are caring for
16 during the daytime?
17 THE JURORS : No .
18 THE COURT: Do any of you have a real
19 unique excuse that I have forgotten about?
20 THE JURORS : No.
21 THE COURT: If you will turn and I think
22 the lawyers will have some questions for you.
23 MR. FERRIS: Thank you, Your Honor. Good
24 morning, ladies and gentlemen of the Jury. As
CENTRAL VIRGINIA REPORTERS (540) 380-5017 27 23
1 Judge Doherty has told you my name is Raphael
2 Ferris, Ray Ferris, and I have got the pleasure
3 and the honor of representing Ron Bowles in this
4 matter.
5 Just like Judge Doherty told you, his last
6 question was he was going to ask you if any of
7 you had any creative excuses why you shouldn't be
8 on the jury. I am going to try to give you
9 additional reasons, and I don't mean that to be
10 playful with you, but when we sit for jury
11 service there are a lot of different kinds of
12 cases that you are called upon to hear.
13 THE COURT: I don't want to interrupt too
14 often, but we are limited to time. If you could
15 go to your questions so we can move on.
16 MR. FERRIS: Thank you, Your Honor. I am
17 going to ask you some questions to determine
18 whether this is the kind of case that you all
19 ought to be hearing.
20 Judge Doherty asked you if you owned any
21 Norfolk Southern stock. I am going to open up
22 that question a little bit wider. Do any of you
23 own any railroad stock of any kind that you are
24 aware of?
CENTRAL VIRGINIA REPORTERS {540) 380-5017 28 24
1 THE JURORS: No.
2 MR. FERRIS: I have a Mr. Oltmanns. How
3 is your last name spelled?
4 A JUROR: 0-1-t-m-a-n-n-s.
5 MR. FERRIS: Judge Doherty also explained
6 to you that it doesn't disqualify you if you know
7 some of the people involved in the case.
8 We have identified our law firms. I would
9 like to identify for you some of the lawyers in
10 each of the law firms and find out if you know
11 any of those folks, and if you do just say so.
12 Mr. Ballou practices with some gentlemen
13 by the name of James Johnson, Ron Ayers, Ms.
14 Johnny Speight, Ken Ries, John Eure, David
15 Carson, Bill Wallace, Grimes Creasy, and I
16 probably have left out a couple.
17 I practice with Bob Ryder, Bill
18 Cleaveland, Lenden Eakin, and Dick Thomas.
19 Do any of you know any of those
20 individuals or have a social relationship with
21 any of them?
22 THE JURORS: No.
23 MR. FERRIS: Do you have any close
\ 24 relatives or adult children who are employed by
CENTRAL VIRGINIA REPORTERS (540} 380-5017 29 25
1 the railroad? Judge Doherty asked you if you
2 individually were employed.
3 Do you have any close friends, relatives
4 or children who are employed by the railroad?
5 A JUROR: I know some people that are
6 employed by the railroad, but I wouldn't consider
7 them close friends.
8 MR. FERRIS: Do you ever discuss railroad
9 business with them so to speak?
10 A JUROR: No.
11 MR. FERRIS: Do you ever discuss their
12 employment with the railroad at all?
13 A JUROR: No. 14 MR. FERRIS: Your knowledge of them 15 wouldn't affect your ability to give Ron Bowles
16 or the railroad a fair trial in this case? 17 A JUROR: I don't know anything about
18 them.
19 MR. FERRIS: Thank you. Yes?
20 A JUROR: My grandfather worked for the
21 railroad, but he has been deceased for eight
22 years and my other one has been retired for 18
23 years.
24 MR. FERRIS: Both of your grandfathers, ( __ :
CENTRAL VIRGINIA REPORTERS {540) 380-5017 26
1 Ms. Brown, were employed by the Norfolk and
2 Western?
3 A JUROR: Yes, sir.
4 MR. FERRIS: Did you get to know your
5 grandfathers before they passed away?
6 A JUROR: Yes. One was eight years ago,
7 but I was little while they worked there. Both
8 of them had been retired for ten or fifteen
9 years.
10 MR. FERRIS: Did they ever talk to you
11 about working on the railroad or any jobs they
12 did or anything like that?
13 A JUROR: No.
14 MR. FERRIS: Would your knowledge that
15 your grandfathers worked for the railroad, would
16 that affect your ability to listen to the law and
17 the evidence in this case and render both sides a
18 fair trial?
19 A JUROR: No.
20 MR. FERRIS: Yes, ma'am?
21 A JUROR: I have a friend who works for
22 the railroad but we don't discuss it. I am not
23 even sure which department she works in.
24 MR. FERRIS: You are Ms. Francis, for the
CENTRAL VIRGINIA REPORTERS (540} 380-5017 31 27
1 Record?
2 A JUROR: Yes.
3 MR. FERRIS: Is this a close friend of
4 yours?
5 A JUROR: Fairly close.
6 MR. FERRIS: Do you know what she does for
7 the railroad?
8 A JUROR: Something with checks, pays the
9 bills. I am not even sure what department she is
10 in. We never discuss work.
11 MR. FERRIS: That is a good idea. That
12 wouldn't affect your ability to give a fair trial
13 to both sides?
14 A JUROR: No.
15 MR. FERRIS: Anybody else? Yes, sir, Mr.
16 Law.
17 A JUROR: I know quite a few people that
18 works for the railroad but not really close with
19 them, but I know quite a few people.
20 MR. FERRIS: These are social
21 acquaintances of yours?
22 A JUROR: I have seen and speak to them at
23 times.
24 MR. FERRIS: You don't talk business with
CENTRAL VIRGINIA REPORTERS (540) 380-5017 32 28
1 them at all or railroad business at all?
2 A JUROR: No.
3 MR. FERRIS: Would that affect your
4 ability to give either side a fair trial?
5 A JUROR: No.
6 MR. FERRIS: Anybody else?
7 Prior jury experience, how many of you all
8 have served on a jury before? Would that be in
9 this term or in previous terms?
10 A JUROR: Previous.
11 MR. FERRIS: Let's start with Mr. Harper.
12 You have served previously?
13 A JUROR: Thursday.
14 MR. FERRIS: Last week?
15 A JUROR: Yes.
16 MR. FERRIS: What kind of case was it?
17 A JUROR: Civil.
18 MR. FERRIS: Was it a railroad case?
19 A JUROR: No.
20 MR. FERRIS: Have you ever served on a
21 criminal jury?
22 A JUROR: No.
23 MR. FERRIS: Is this the first time you
24 have served on a jury panel during this month ·-
CENTRAL VIRGINIA REPORTERS (540) 380-5017 33 29
1 other than last week?
2 A JUROR: The first time I have served on
3 a jury panel in Roanoke, but I was on a civil
4 case up in New York. That is where I am from 5 originally.
6 MR. FERRIS: How long have you lived in
7 the Roanoke area?
8 A JUROR: It will be ten years in November
9 of this year.
10 MR. FERRIS: What kind of case did you sit 11 on, if you remember, in New York? 12 A JUROR: Personal injury.
13 MR. FERRIS: Mr. Lamar?
14 A JUROR: Probably about ten years ago.
15 MR. FERRIS: Roanoke City?
16 A JUROR: Yes.
17 MR. FERRIS: Do you remember what kind of
18 cases you heard?
19 A JUROR: It was civil but I couldn•t tell
20 you what it was about.
21 MR. FERRIS: Did you sit on any criminal
22 juries?
23 A JUROR: No. i 24 MR. FERRIS: Anybody else? Ms. Bishop,
CENTRAL VIRGINIA REPORTERS (540) 380-5017 34 30
1 what kind of injury did you sit on?
2 A JUROR: It was a civil case about ten
3 years ago in U.S. District Court.
4 MR. FERRIS: Have you served on any juries
5 or been called and struck from any juries this
6 term of court in Roanoke City?
7 A JUROR: I have not sat on one yet during
8 this period.
9 MR. FERRIS: The civil one in Federal
10 Court is the only one you have sat on; is that
11 right?
12 A JUROR: Yes.
13 MR. FERRIS: Anybody else? Mr. Law?
14 A JUROR: Back in the early '70s, I can't
15 really recall. I wasn't picked.
16 MR. FERRIS: But you were called for
17 service?
18 A JUROR: Yes.
19 MR. FERRIS: So, you have not actually sat
20 in the box and decided a case?
21 A JUROR: No.
22 MR. FERRIS: Thank you very much. Mr.
23 Huffman?
I' \ 24 A JUROR: About four years ago I had jury
CENTRAL VIRGINIA REPORTERS (540) 380-5017 35 31
1 duty here in Roanoke on two criminal cases but I
2 have never been on a civil case.
3 MR. FERRIS: You remember the standard of
4 proof in a criminal case is beyond a reasonable
5 doubt. It's what
6 THE COURT: I don't want to get into that
7 right now. I will tell the Jury there are
8 different standards of proof in civil and
9 criminal cases and I will instruct you
10 specifically with regard to the standard of proof
11 that you will use in a civil case.
/ ( 12 I don't want to mix them up or start
13 trying to get into the difference between
14 criminal and civil at this stage.
15 MR. FERRIS: Thank you. Ms. Francis, did
16 you serve?
17 A JUROR: Yes, a civil case here last
18 Thursday.
19 MR. FERRIS: Would that have been the same
20 case we just talked about?
21 A JUROR: Yes.
22 MR. FERRIS: It did not have anything to
23 do with the railroad?
( 24 A JUROR: Yes.
CENTRAL VIRGINIA REPORTERS (540} 380-5017 32
1 MR. FERRIS: Is that the only jury you have
2 sat on?
3 A JUROR: Yes, sir.
4 MR. FERRIS: Anybody else? Have any of 5 you all ever worked as a claims adjustor, for 6 instance, or in any loss control capacity in your 7 employment histories?
8 A jUROR: No.
9 MR. FERRIS: Are any of you all members of
10 a union or have any union affiliation of any
11 kind?
12 THE COURT: I don't think that the union
13 question is relevant to this case, so I am not 14 going to allow you to ask that.
15 MR. FERRIS: Thank you, Your Honor. Are 16 any of you all independent business people, own
17 your own businesses?
18 THE JURY: No, sir.
19 A JUROR: I am a musician.
20 MR. FERRIS: You are a musician, Mr. Law? 21 Anybody else?
22 A JUROR: I have a typing service in my
23 home.
( 24 \ MR. FERRIS: Anybody else?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 33
1 THE JURY: No.
2 MR. FERRIS: The Court will instruct you
3 on the law and the evidence in this case, and I
4 just want to mention to you very briefly
5 sometimes folks get confused between these kinds
6 of cases and workers' compensation cases.
7 This is a case that involves an injury on
8 the railroad and Mr. Bowles is a former employee
9 of the Norfolk and Western, Norfolk Southern
10 Railway, and is suing for an injury that he
11 incurred on the railroad.
12 THE COURT: That is really part of the
13 Opening Statement, not part of the questions for
14 the Jury.
15 MR. FERRIS: Thank you, Your Honor. I was
16 going to ask them if they had any preconceived
17 notions about workers' compensation and whether
18 it should apply in this case and whether they
19 could follow the law and the evidence if
20 instructed otherwise by the Court.
21 THE COURT: Well, that is something that
22 if it comes up I will look at separately.
23 MR. FERRIS: Thank you, Your Honor.
24 Have any of you all ever incurred an l~_.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 38. 34
1 injury on the job?
2 THE JURY: No.
3 MR. FERRIS: Have any of you all ever been
4 involved in a lawsuit either as a Plaintiff or as
5 a Defendant, meaning have you ever been sued or
6 sued somebody?
7 THE JURY: No.
8 MR. FERRIS: Have any of you all ever --
9 yes, ma'am?
10 A JUROR: I was in a car accident,
11 hit-and-run accident.
12 MR. FERRIS: So you must have been the
13 Plaintiff?
14 A JUROR: . Right .
15 MR. FERRIS: How long ago was that?
16 A JUROR: Ten years.
17 MR. FERRIS: Did that case go to trial?
18 A JUROR: No.
19 MR. FERRIS: Has anybody else either been
20 hit or involved in an accident in any way that
21 resulted in a lawsuit?
22 Has anybody here ever had a back injury
23 that required surgery?
( 24 THE JURY : No .
CENTRAL VIRGINIA REPORTERS {540) 380-5017 39 35
1 MR. FERRIS: Do any of you have any close
2 relatives or children or friends that have had to
3 have surgery as a result of a back injury?
4 THE JURY: No.
5 MR. FERRIS: Does anybody here have any
6 religious or other reservations when it comes to
7 lawsuits, when it comes to folks using the legal
8 system, the constitutional system, to recover for
9 injuries if they prove their case?
10 And I don't want to put anybody on the
11 defensive with that question, but there are a lot
12 of folks that are very close to me, friends of
13 mine, who don't believe in suing no matter what
14 happens, and I just am asking you all if you have
15 any kind of reservations, personal reservations,
16 that would prevent you from hearing this case or
17 would give you some hesitation about rendering a
18 verdict in favor of the Plaintiff because you
19 feel like it is just not right to bring a
20 lawsuit.
21 THE JURORS: No.
22 MR. FERRIS: Now, the Court is going to
23 instruct you at the end of tQe case as to the law
24 in this case, and there are two kind of damages
CENTRAL VIRGINIA REPORTERS (540) 380-5017 40 36
1 that if we prevail
2 THE COURT: I understand that you are
3 getting into questions of the instructions, but
4 there are some areas that I am not going to let
5 you ask questions on, and I am not going to let
6 you ask questions on their feelings or opinions
7 about damages.
8 You have a right to a fair and impartial
9 jury and I will instruct them on the law. You
10 can ask them whether or not they are going to
11 follow the law. I am not going to --
12 MR. FERRIS: May I have a side bar with
13 the Court on the Record?
14 THE COURT: Yes.
15 Ladies and gentlemen, let me explain to
16 you. There are several times during the case
17 when issues come up and sometimes I will have to
18 discuss them outside of the presence of the
19 Jury.
20 Right now we are going to have a brief
21 discussion outside your presence. The court
22 reporter and the lawyers will come with me, you
23 all remain where you are.
24
CENTRAL VIRGINIA REPORTERS (540) 380-5017 37
1 (The Court and opposing Counsel
2 left the Open Courtroom.)
3
4 THE COURT: We are outside the presence of
5 the Jury and I guess we have got several motions.
6 What is your motion?
7 MR. FERRIS: My motion is to permit me to
8 ask questions as to whether this Jury can follow
9 the Court•s instructions if they should find in
10 favor of the Plaintiff to award economic as well
11 as consequential damages.
12 There are folks who simply do not believe
13 that consequential damages should be awarded no
14 matter what the Court instructs them.
15 THE COURT: You mean punitive.
16 MR. FERRIS: No. It is damage for pain
17 and suffering and disability.
18 There are some folks that simply don•t
19 believe it. In fact, there is a very well known
20 radio personality who is on here in the evenings
21 here in Roanoke who regularly is questioning the
22 legal system, why we permit those kinds of
23 damages to be awarded in courtroom situations.
( . 24 That is the law in Virginia, is that those '
CENTRAL VIRGINIA REPORTERS (540) 380-5017 42 38
1 damages are permitted should the Jury feel that
2 they have been proven, and I just want to make
3 sure that none of these Jurors believe that under
4 no circumstances would they award such damages if
5 you instructed them on the law in that respect.
6 THE COURT: Do you want to respond?
7 MR. BALLOU: I think, first of all, the
8 Court has wide discretion in being able to limit
9 voir dire even in a civil case, and the Court is
10 exactly correct.
11 The question is proper to ask whether they
12 can follow the law as instructed by the Court and
13 given the evidence, and to ask them, the venire,
14 to go into particular types of damages he is
15 asking the Jury to start prejudging the case, and
16 I think it is an improper question.
17 THE COURT: I think the way that was
18 corning out was an improper question. I am not
19 going to allow you now to give the Jury an
20 explanation of what the law is with regard to
21 compensatory damages or any other kind of damages
22 and then ask them can they award those damages.
23 If you want to ask some general questions
24 without going into a long detailed explanation
CENTRAL VIRGINIA REPORTERS (540) 380-5017 43 39
1 and your general question is somewhat in the area
2 of does anyone here, if we have proven our case,
3 have difficulty in awarding damages for losses
4 and for pain and suffering or something like
5 that, one question hit it and go on, you can do
6 that.
7 I don't want the case tried in voir dire,
8 and so the way you were going I am not changing
9 my mind on that. If, on the other hand, you ask
10 some other question very briefly, hit it and go
11 on without going into a long explanation, then
12 you can do that.
13 MR. FERRIS: If the Court will ask the
14 question I will be satisfied with that.
15 THE COURT: I'm not going to voir dire the
16 Jury. So, you can decide.
17 Did you have any motions?
18 MR. BALLOU: Judge, first of all, any
19 references to workers' comp are completely
20 improper and we would ask there be no further
21 reference to workers' comp.
22 I would note that of the venire called
23 that I believe eight were names that were not
24 previously provided, in further support of our
CENTRAL VIRGINIA REPORTERS (540) 380-5017 44 40
1 previous motion.
2 THE COURT: All right. I accept that and
3 as far as your previous motion my ruling stands
4 on that.
5 As far as this comment about workmen's
6 comp, it has no place in this case and I have
7 been in cases where somebody has asked for a
8 mistrial when workers' comp was asked, and so be
9 warned not to mention that again.
10 I think I would cause more problem by
11 trying to make some sort of curative instruction.
12 MR. BALLOU: I would expect to ask for a
13 mistrial the next time it is brought up.
14 THE COURT: I think it would be real
15 difficult the next time workers' comp is brought
16 up not to. You have got to be real careful about
17 and you were more careful about questions
18 concerning are any of you a claims adjustor,
19 because you almost can't ask that question and
20 not get somebody to start talking about insurance
21 in the case.
22 Mentioning insurance puts you the same as
23 workers• comp and you don't want to bring in
24 something that is going to cause a mistrial.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 45 41
1 MR. FERRIS: Of course, insurance is not
2 relevant at all in this case. My reason for
3 asking
4 THE COURT: Nor is workmen's comp. I am
5 not arguing with you. You are past that point.
6 I am telling you if a question comes up
7 again and you ask something where you are
8 inviting the Jury to start talking about
9 insurance, you may well end up tainting that
10 entire bunch of jurors we have in here today, and
11 I don't have any doubt in my mind that if
12 workmen's comp is brought up again we are going
13 to have a real problem on our hands.
14 I am not sure whether that would be a
15 mistrial or not, but it would be awful close and
16 Mr. Ballou has already told us that he is going
17 to ask for a mistrial if it comes up again. Be
18 careful about workmen's comp.
19 All right. Are you clear on my rulings?
20 MR. FERRIS: Yes, sir. I am going to have
21 the Court Reporter read me what you said to make
22 sure I asked the question in that way.
23 THE COURT: If you ask her to do that,
24 don't do it in front of the Jury.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 46 42
1 MR. FERRIS: I'm going to ask her right
2 now.
3
4 (The portion of the Record referred
5 to was read by the reporter.)
6
7 (The Court and opposing Counsel
8 returned to the Open Courtroom.)
9
10 THE COURT: We will try to limit the times
11 when we leave you here staring into space to deal
12 with cases like this. Usually we will give you a
13 break.
14 The trouble is there are cokes and coffee
15 and bathrooms back in the jury room, and despite
16 the fact that we take a five-minute break it
17 takes about ten to twenty minutes to cycle a jury
18 through there, and I don't want to take real,
19 real long breaks if we can help it simply for
20 discussion that has to be done outside the
21 presence of the Jury.
22 Please give Mr. Ferris your attention
23 again.
24 MR. FERRIS: Thank you, Your Honor.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 47 43
1 Ladies and gentlemen of the Jury, if the
2 evidence should develop in such a way that you
3 find for the Plaintiff, is there anybody here who
4 cannot award damages for both economic and
5 consequence damages for pain and suffering?
6 Is there anybody here who cannot do that?
7 THE JURY: No.
8 MR. FERRIS: Ms. Epps, you are doing some
9 work for the railroad. How long have you been
10 doing that?
11 A JUROR: Just a couple weeks. It is just
12 an art job on the side that a friend of mine
13 referred to them. I haven't even met the man
14 that I am doing it for.
15 MR. FERRIS: You are not dealing with any
16 of the people who have been named in this --
17 A JUROR: No.
18 MR. FERRIS: Would that affect your
19 ability to hear both sides of the case and render
20 a fair verdict?
21 A JUROR: No.
22 MR. FERRIS: Your Honor, I think those are
23 all the questions I have.
\ \...._ 24 MR. BALLOU: I have just a couple
CENTRAL VIRGINIA REPORTERS (540) 380-5017 48 44
1 questions.
2 Ladies and gentlemen, sometimes a
3 corporation is called a corporate citizen just
4 like us as individuals are citizens. All
5 corporations and individuals stand on equal
6 footing.
7 Is there anyone here that believes they
8 can give both Mr. Bowles as an individual and the
9 railroad as a corporation the same fair shake
10 when you leave to decide the case?
11 THE JURY: Yes.
12 MR. BALLOU: I think Mr. Ferris asked
13 anyone -- if he did I apologize for repeating the
14 question -- has anyone here ever suffered an
15 injury to their low back?
16 THE JURY: No.
17 MR. BALLOU: Do any of you have family
18 members that have had low back injuries?
19 A JUROR: My father.
20 MR. BALLOU: What kind of injury?
21 A JUROR: He had a ruptured disc that he
22 did on the job twice.
23 MR. BALLOU: Where did your father work?
24 A JUROR: He did at Ingersoll-Rand and
CENTRAL VIRGINIA REPORTERS {540) 380-5017 49 45
1 after that he was working for the Roanoke Iron
2 Bridge Works the second time he got hurt.
3 MR. BALLOU: Was your father operated on?
4 A JUROR: Yes.
5 MR. BALLOU: Who was his doctor?
6 A JUROR: Dr. Ferry. I think he is
7 retired now.
8 MR. BALLOU: Ms. Callahan?
9 A JUROR: My sister, she was in a car
10 accident and she hurt the lower back.
11 MR. BALLOU: How long ago was that?
I 12 A JUROR: I 92.
13 MR. BALLOU: Has she recovered?
14 A JUROR: She has pain every once in a
15 while.
16 MR. BALLOU: Ms. Jones, how long ago was
17 it that your father was injured?
18 A JUROR: It has been quite a few years.
19 He is on disability now.
20 MR. BALLOU: Is there anyone else that has
21 family members with a low back injury?
22 THE JURORS: No.
23 MR. BALLOU: That is all the questions I
I t ·~ 24 have.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 50 46
1 THE COURT: Thank you. Before we go onto
2 the next stage, are there any motions any of the
3 lawyers want to make?
4 MR. FERRIS: I have no motions, Your
5 Honor.
6 MR. BALLOU: None, Your Honor.
7
8 (Strikes were made.)
9
10 THE COURT: All right. If you up front
11 will turn and face me and we will start into the
12 next phase of this, and that is whittling the 13 number down to eight.
14 What is going on right now is the lawyers 15 are going through the process to strike those of
16 you who are going to be excluded from the Jury, 17 and again, I have got some material I need to go
18 over with you. So, I will try to explain what is
19 going on with that process and try to anticipate
20 some of your questions that you might have and
21 answer them as we go forward.
22 First off, if we have 14 of the world's
23 most perfect jurors I still have to get rid of
24 six of you. Don't feel bad for being struck from
CENTRAL VIRGINIA REPORTERS (540) 380-5017 51 47
1 the Jury.
2 The way we are going to, the lawyers had a
3 little bit of information about you, they had
4 your name and address, whatever information you
5 put down on those cards, where you worked, I
6 think, and maybe your age or something like
7 that. They had that information plus my guess is
8 they asked friends and associates do you know
9 this person or that person whose name was on the
10 Jury list.
11 Based on that and based upon your
12 appearance here today and based upon your
13 responses to some of the questions that I and
14 they have already asked you, they are now going
15 through and trying to decide which six of you
16 will not be on the Jury. That will get us down
17 to eight jurors.
18 I will choose one of you to be the
19 alternate juror and we won't tell you who that
20 ·is. So, the case will be decided by seven
21 jurors. We will have an extra one in there as an
22 alternate.
23 Now, first off, what you are going to be
24 looking at is this case is going to go for three
CENTRAL VIRGINIA REPORTERS (540) 380-5017 52 56
1 afternoon and it won't be in there tomorrow or
2 the next day.
3 If any of you have personal telephones,
4 either turn them off or deliver them to the
5 sheriff and tomorrow leave them at home.
6 If you will listen to the sheriff as he
7 calls your name, have a seat in the back.
8 A DEPUTY: If I call your name if you
9 would please have a seat in the back.
10 Jerry Huffman, Cathy Jones, Joy Bishop,
11 Dominique Brown, Susan Epps, and Eugene Lamar.
12 THE COURT: If I can have the remaining
13 eight of you now turn and face the clerk, we will
14 swear you in as Jurors in this case. 15
16 (The Jurors were duly sworn.)
17
18 THE COURT: It takes us an hour to get
19 food over here once you have ordered it and so we
20 are going to take a break right now. It is right
21 at noon, we will take about a 15-minute break.
22 There are cokes and coffee. Any of you who want
23 to order your lunch sent in, we have got a menu
24 we will give you. The sheriff will make
CENTRAL VIRGINIA REPORTERS (540) 380-5017 53 88
1 AFTERNOON SESSION
2 THE COURT: Call your first witness.
3 MR. BALLOU: Judge, the only thing I would
4 offer into evidence is the list of the jurors
5 that we were given by the sheriff who were going
6 to be called in. We have retyped that with the
7 information on them about address and employment
8 and so forth.
9 THE COURT: This is something that you had
10 typed up or the sheriff had typed up?
11 MR. BALLOU: It is something that our
12 office typed up. The list of the names are the
13 jurors that the sheriff's office told us were
14 going to be called. Renee Wright, we understand,
15 is the deputy that pulled the jury and gave us
16 that information.
17 THE COURT: I will mark this just as
18 Court's Exhibit Number 1 so that you have a
19 Record of it in there.
20
21 (The Court's Exhibit Number 1 was
22 marked and entered into the Record.)
23
24 THE COURT: Court Exhibit Number 1
CENTRAL VIRGINIA REPORTERS (540) 380-5017 54 89
1 consists of three or four pages of typed names,
2 occupation, age and spouse's occupation and
3 addresses of the jurors, and this was prepared by
4 defense counsel from the names that were provided
5 him by the sheriff upon his request in accordance
6 with the statute.
7 What the sheriff actually sent you was the
8 master list and designated certain ones on the
9 master as being the jurors that are going to be
10 called?
11 MR. BALLOU: I think what happened is we
12 already had the master and then Ms. Wright
13 advised us which of those off the master it would
14 be. She didn't send us anything.
15 THE COURT: The jurors that we have here
16 today are on the master list, but were not
17 designated by the sheriff as the ones who were
18 called for this case?
19 MR. BALLOU: That is correct.
20 THE COURT: Is there anything else we need
21 to take up before we bring the Jury in?
22 MR. FERRIS: I don't think so, Your Honor.
23 MR. BALLOU: No, Your Honor.
24 THE COURT: Bring the Jury in.
CENTRAL VIRGINIA REPORTERS {540) 380-5017 55 91 Mr. Simmons - Direct
1 Q How are you employed?
3 Q How long have you worked for the Norfolk
4 Southern?
5 A Twenty-six years.
6 Q Prior to your employment with the Norfolk
7 Southern you held several different jobs; is that
8 correct?
9 A That's correct.
10 Q You are a native of the Montgomery County
11 area, I believe; is that correct?
12 A That is correct.
13 Q Mr. Simmons, what is your current job
14 classification at the Norfolk Southern?
15 A Machinist.
16 Q Before becoming a machinist, what if any
17 other jobs did you perform?
18 A For the railroad?
19 Q Yes, sir.
20 A Machinist welder.
21 Q How long have you been designated
22 specifically a machinist?
23 A Twenty-six years.
Q What is your current assignment there at
CENTRAL VIRGINIA REPORTERS (540) 380-5017 56 92
Mr. Simmons - Direct
1 Norfolk Southern?
2 A Machine wheel operator.
3 Q What is a wheel operator?
4 A It is a person that trues the wheels on
5 locomotives, brings them from the one state to the
6 original shape, form.
7 Q When you say true, is there another word
8 you would use to describe what true means?
9 A True means conforming or reshaping a worn
10 wheel.
11 Q How is that done, Mr. Simmons?
12 A The locomotive is placed in the wheel
13 building, which is the building with the wheel machine
14 mounted in the floor of the building. The locomotive is
15 then pulled inside. We disassemble the caps which are
16 the ends of the axles. There is a cap placed over the
17 axle.
18 You have to take the shock absorber off,
19 raise it if not remove it, expose the ends of the axle,
20 raise the machine to place the centers, which are two
21 sides of the machine, into the axle, and you have
22 hydraulics to raise the cutting bars up to the wheels.
23 They rotate approximately 2,500 to 3,000 rpm's and the
24 wheel rotates about one revolution per seven or eight
CENTRAL VIRGINIA REPORTERS (540) 380-5017 57 93 Mr. Simmons - Direct
1 minutes. It's a very slow procedure, the wheel, but the
2 rotating cutting bars rotate rather fast.
3 Q How long have you been operating the true 4 machine?
5 A Twelve years.
6 Q Who trained you to do that operation at
7 the railroad?
8 A Mr. Bowles, Ronald Bowles.
9 Q That would be the Plaintiff in this case;
10 is that correct?
12 Did any other folks train you?
14 Did you receive any formalized training of
15 a classroom or seminar or video or anything
16
18 How about any written documentation, was
19 any written documentation provided to you to tell you how
20 to go about this operation?
21 A The process of truing the wheels, there
22 was.
23 Q How was that distinguished from anything
24 else that you have told us?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 58 94
Mr. Simmons - Direct
1 A It gives the complete detail of the
2 operation of the machine.
3 Q Of the machine that actually grinds the
4 wheel?
5 A That's correct.
6 Q Are there any written directions or
7 instructions of any kind at Norfolk Southern that you are
8 aware of to tell you how to do the other operation you
9 spoke about, which was capping or uncapping?
10 A None.
11 Q I want to show you a photograph and ask
12 you if you recognize what this is.
13
14 (Plaintiff's Exhibit Numbers 1 and 2 were
15 marked for Identification.)
16
17 MR. FERRIS: For the Record, I am showing
18 the witness what has been previously marked for
19 identification purposes as Plaintiff's Exhibits 1
20 and 2.
21
22 BY MR. FERRIS:
23 Q This is Number 1, Mr. Simmons, and this is
24 Number 2. I am going to ask you if these two photographs
CENTRAL VIRGINIA REPORTERS (540) 380-5017 59 95 Mr. Simmons - Direct
1 accurately reflect the shock that you just described and
2 the area that the work was performed on in the truing
3 shop?
4 A That is one of them, yes. We have several
5 types of shops, but that is one and one of the mounting
6 brackets on it.
7 Q I am going to ask you to use one of these
8 photographs to explain to the Jury what you just did very
9 briefly a minute ago about capping and uncapping and
10 moving the shock. Which one would you prefer?
11 A This one.
12 Q If you would like I will hold it for you
13 and let you point to the photograph, and tell the Jury
14 exactly what you are talking about. Where is the
15 locomotive when it is viewed like this?
16 THE COURT: Before you go into that so
17 that somebody reading the Record in the future
18 knows what you are talking about, would you tell
19 us what the number of that picture is?
20 MR. FERRIS: We are .looking at Plaintiff's
21 Exhibit Number 2. I will offer it into evidence,
22 Your Honor. Shall we just go ahead and do that
23 and let you mark it as accepted as an exhibit?
24 THE COURT: Any objection?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 60 96 Mr. Simmons - Direct
1 MR. BALLOU: No objection.
2 THE COURT: That will be marked
3 Plaintiff's Exhibit Number 2.
4
5 (The document having previously been
6 marked Plaintiff's Exhibit Number 2
7 was entered into the Record.)
8
9 MR. BALLOU: If it would aid the Court,
10 the four photographs that I know Mr. Ferris has
11 and may want to put in are of the locomotive that
12 Mr. Bowles was working on at the time of his
13 injury. If it would aid the Court, we would
14 stipulate to that.
15 THE COURT: You have got four of those.
16 If you will hand those to the sheriff we will
17 mark those accordingly.
18 MR. FERRIS: I am handing the sheriff
19 Numbers 1, 3 and 4.
20
21 (The above-mentioned documents were marked
22 Plaintiff's Exhibit Numbers 1, 3 and 4 and
23 entered into the Record.)
24
CENTRAL VIRGINIA REPORTERS (540) 380-5017 61 97 Mr. Simmons - Direct
1 BY MR. FERRIS:
2 Q Mr. Simmons, referring to Plaintiff's
3 Exhibit Number 2, tell the Jury what we are looking at
4 here and where we would be in the shop at this point in
5 time when the shock is in this position.
6 A This locomotive has just arrived in the
7 shop. It hadn't reached the wheel true machine as of
8 yet. It's a few feet from the machine.
9 We have to remove the shock, the four
10 bolts on this particular shock, and raise it up, place a
11 spacer under this -- and it is sitting hanging on an
12 angle -- to miss the wheel machine when it goes through.
13 Q Basically to get this apparatus out of the
14 way?
15 A Yes, that is the purpose. Then take the
16 center piece out of it. It is a little center so that
17 the alignment bars, which are the centers, can go into
18 the end of this axle.
19 This is raised out of the way and, of
20 course, once it goes through we proceed to the next
21 wheel.
22 Q Then do you remove the shocks out of the
23 way before you perform the truing?
24 A Yes, it is completely out of the way. The
CENTRAL VIRGINIA REPORTERS (540) 380-5017 62 98
Mr. Simmons - Direct
1 locomotive is put on the machine, this wheel is turned.
2 You move to the next wheel and this one will go to the
3 far side of the locomotive.
4 Q When you refer to the wheel being turned,
5 you mean that the truing machine is actually applied to 6 it and the wheel is ground; is that correct?
7 A That's correct. It has reached its
8 original state of conformation. This will move on and
9 the next one will come by.
10 When this one is through we reassemble
11 this. Most of the time we usually cut two to three
12 wheels on this -- this is considered a truck. This frame
13 has two other sections, and once it passes the machine
14 we will use this desk as an example of the wheel 15 machine.
16 The locomotive is coming across. Once it
17 gets across to the other side it is on another level the
18 same as the first level, and we will complete these three
19 wheels, move the locomotive down, start a second truck,
20 which is the same setup, and assemble those shocks and
21 caps back in the original position as you see it now.
22 Q How is that done?
23 A Meanwhile, this shock hanging here has a
24 tendency to extend itself.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 63 99 Mr. Simmons - Direct
1 Q What do you mean extend itself? What part
2 extends?
3 A The shock absorber itself. Not all the
4 time, but most of the time it will, and when it reaches
5 the other side it is too low to align with these four
6 holes again.
7 Q Now, you are pointing to the four bolts?
.a A The four mounting bolt holes. It will be
9 down here somewhere. You have to compress it to make it
10 align with these four holes again.
11 Q How was that compression operation
12 completed in 1993?
13 A If it is not too far down you have to push
14 it by hand I mean, but if it is too far down you have
15 to push it by hand, but if it stops along here you can
16 put a pry bar and push it back up, place it on this
17 section, a metal section, and push it back into
18 position.
19 A lot of times it will extend past that
20 position and you will have to push it by hand.
21 Q Where are you standing or where is the
22 operator standing when this particular procedure is
23 performed?
24 A The operator is in -- may I get up?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 64 100
Mr. Simmons - Direct
1 Q Yes.
2 A In a pit area like so. The locomotive is
3 along here, this section would be, and you have to catch
4 this shock and push it back up into position.
5 Q For the Record, you are describing
6 catching the shock. Tell the Court where you are
7 catching the shock in relation to your body.
. 8 A It will usually be right here .
9 Q Which is where?
10 A A little bit above my belt or I will get
11 down and push it up.
12 Q And that is necessary to line the bolts up
13 so you can put the assembly back together?
14 A Put the assembly back and once that is
15 done that is complete.
16 Q Is that a difficult procedure?
17 A More than likely most of the shocks are
18 fairly new and they are pretty stiff. It would almost
19 have to be because of the shock itself is a shock
20 absorber, just what it says, and it keeps the locomotive
21 wheels steady on the rail.
22 It's much like it is on your automobile.
23 With a bad shock the car has a tendency to weave. That
24 one is pretty stiff and I am not too sure how much
CENTRAL VIRGINIA REPORTERS (540) 380-5017
~~ 101 Mr. Simmons - Direct
1 pressure, but it is between I can guess 60 and 125.
2 MR. BALLOU: I object.
3 THE COURT: I sustain the objection for 4 him guessing as to some weight or pressure.
5
6 BY MR. FERRIS:
7 Q Rather than guess, do you have an
.8 estimate?
9 MR. BALLOU: Your Honor.
10 THE COURT: I am really not sure the
11 difference between a guess and an estimate, but I
12 sustain that objection.
13
14 BY MR. FERRIS:
15 Q I asked you if it was difficult. Have you
16 ever discussed this procedure and the difficulty of it
17 with any of your supervisors or the safety folks at
18 Norfolk Southern?
19 A I have.
20 Q Did you ever make a report to them about
21 this procedure and ever tell them anything about it?
22 A I have given oral reports during our
23 safety meetings about the procedure being pretty
24 difficult, because one man has to do all the pushing
CENTRAL VIRGINIA REPORTERS (540) 380-5017 66 102
Mr. Simmons - Direct
1 himself.
2 Q Was there a problem with just one man
3 doing it?
4 A Sometimes.
5 MR. BALLOU: Your Honor, he is asking him
6 to start rendering opinions at this point in
7 time.
8 MR. FERRIS: I can rephrase the question.
9 THE COURT: If the question is one that is
10 going to ask for or elicit an opinion, I sustain
11 that objection.
12
13 BY MR. FERRIS:
14 Q Have you ever asked for help to compress
15 the shock?
16 A I have.
17 Q Why did xou ask for help?
18 A It was too difficult for me to push it
19 back by myself.
20 Q Were you ever present during safety 21 meetings with Ron Bowles?
22 A Yes.
23 Q Did you ever hear Ron mention that
24 particular procedure at safety meetings?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 67 103
Mr. Sim~pns - Direct
1 A Yes, I have.
2 MR. BALLOU: Hearsay, Your Honor.
3 MR. FERRIS: Your Honor, it is not offered
4 for the truth of the matter. It is offered as to
5 whether or not it was mentioned and that puts
6 them on notice of the defect.
7 MR. BALLOU: It is still hearsay, Your
8 Honor.
9 MR. FERRIS: Hearsay is a statement made
10 out of court offered for the truth of the matter
11 contained therein. I am not offering whether or
12 not it was, in fact, difficult but whether Ron
13 Bowles made the complaint.
14 THE COURT: I overrule the objection for
15 that limited purpose.
16
17 BY MR. FERRIS:
18 Q Do you need for me to repeat the question?
19 THE COURT: You already asked the
20 question.
21
22 BY MR. FERRIS:
23 Q Answer the question.
24 A It was difficult. I have asked for help.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 68 104
Mr. Simmons - Direct
1 MR. FERRIS: Your Honor, I don't think he
2 remembers the question.
3
4 BY MR. FERRIS:
5 Q Did you ever hear Ron Bowles complain
6 about the difficulty of that procedure at a safety
7 meeting or to any of his supervisors?
8 A During the safety meetings the supervisors
9 were present when he made his complaint.
10 Q Do you know how many times? Was it more
11 than once?
12 A Several times.
13 Q Do you remember what the response was?
14 MR. BALLOU: Now it is hearsay.
15 THE COURT: Sustain that objection.
16
17 BY .MR. FERRIS:
18 Q Mr. Simmons, you weren't present when Ron
19 Bowles was injured, were you?
20 A No, I wasn't.
21 Q You don't know anything from your personal
22 knowledge about his injury except for what you have heard
23 from other people?
24 A No, I don't.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 69 lOS Mr. Simmons - Direct
l Q Did you ever in your complaints or
2 mentionings to the supervisors or the safety committee,
3 did you ever mention that the procedure was awkward or
4 unsafe?
5 A Yes, I did.
6 MR. BALLOU: This is calling for
7 opinions. He can tell him what he told him.
8 THE COURT: You are calling for an
9 opinion. He can testify as to what it was he
10 told the supervisor or the people in the safety ll meeting. If, in fact, he told them an opinion he
12 can testify to that.
13 However, I think that objection also dealt
14 with leading questions in this particular area.
15 I sustain the objection with regard to leading.
16
17 BY MR. FERRIS:
18 Q Can you tell us if you remember what
19 exactly you told your supervisors about this procedure?
20 A I had difficulty compressing the shock
21 alone and I requested some help. In fact, I had one of
22 the supervisors to assist me in putting one of the shocks
23 back in position.
24 Q But the question was do you recall what
CENTRAL VIRGINIA REPORTERS (540) 380-5017 70 106
Mr. Simmons - Direct
1 you told the supervisor? Not that you just registered 2 your complaint. What did you tell the supervisor?
3 A I had difficulty with the shock absorber
4 being compressed and it was rather stiff, too heavy, too
5 hard for me to push it back alone.
6 Q These complaints, did they take place
7 before Ron Bowles was injured?
8 A Before and after.
9 Q Thank you. Those are all the questions I
10 have for you. Please answer any questions Mr. Ballou may
11 have or the Court.
12
13 CROSS-EXAMINATION
14
15 BY MR. BALLOU:
16 Q Mr. Simmons, I believe you testified you
17 were not present when Ron Bowles was injured; is that
18 correct?
19 A That is correct.
20 Q So, you, in fact, don't know exactly what
21 he was doing when he was injured; is that right?
22 A No, I don't.
23 Q You began working on the wheel machine as
24 I understand it in 1987; is that correct?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 71 107 Mr. Simmons - Cross
1 A Yes.
2 Q You were working the wheel machine as what
3 was called the bull gang?
4 A That's correct.
5 Q In fact, you were not working the wheel
6 machine full time, is that correct, at that time?
7 A I was relief work two days a week.
8 Q You worked two days a week. In fact, you
9 were Ron Bowles' relief worker?
10 A That is correct.
11 Q In fact, it was Ron Bowles that trained
12 you on how to operate the wheel machine; is that correct?
13 A That's correct.
14 Q Ron Bowles was the person that did -- let
15 me back up. The full-time workers there in 1993 were
16 R.A. Pack, Bob Pack, and Paul, a fellow by the name of
17 Mr. Paul; is that right?
18 A That is correct.
19 Q In fact, you replaced Mr. Bowles after he
20 left work with the railroad; is that right?
21 A That is correct.
22 Q The training that you received on the
23 operation of the wheel machine -- it is a process as I
24 understand, is that correct, the wheel process? The
CENTRAL VIRGINIA REPORTERS (540) 380-5017 72 108
Mr. Simmons - Cross
1 locomotive comes into the building and the machinist 2 breaks down the locomotive, trues the wheels and then 3 puts the locomotive back; is that right?
4 A That's correct.
5 Q You received classroom training on how to
6 operate the machine itself; is that right?
7 A That is correct.
8 Q That is the computer driven machine that
9 the machinist will input certain numbers on the number of
10 cuts they want and how deep the cuts they want and so
11 forth?
12 A No; it is manual.
13 Q But you punch in what you want -
14 A No.
15 Q -- and then the wheel machine does the 16 work; is that right?
17 A It does the work but you have to gauge the
18 wheel and feed the wheel.
19 Q That is what you received training on; is
20 that right?
21 A That is correct.
22 Q Then the machinist that taught you -- who
23 was Ron Bowles -- taught you how to break down a
24 locomotive; is that right?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 73 109 Mr. Simmons - Cross
1 A That is correct.
2 Q He taught you that back in 1987; is that
3 right?
4 A Yes.
5 Q You well understood what your job was
6 there on the wheel machine; is that right?
7 A That is correct.
8 Q He taught you the process of capping and
9 uncapping the axles; is that correct?
10 A That's right.
11 Q You understood what was necessary to uncap
12 the axles and then how to recap them; is that right?
13 A Yes.
14 Q This involved sometimes having to compress
15 the shock absorbers?
16 A That is correct.
17 Q In fact, it was very frequent that you
18 would have to compress the shock absorbers; is that
19 correct?
20 A That's correct.
21 Q There was nothing unusual at all about
22 having to compress shock absorbers after a wheel had been
23 trued; is that right?
A No, it wasn't unusual.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 .. 74 110
Mr. Simmons - Cross
1 Q In fact, as an operator on the wheel
2 machine you would compress how many shock absorbers in
3 any one given night?
4 A It was usually four shock absorbers on one
5 locomotive.
6 Q You would do about one locomotive per
7 night?
8 A Yes.
9 Q You would compress, therefore, about four
10 every night?
11 A All of them wouldn't need compressing.
12 Some of them would hold its position.
13 Q But roughly around four shock absorbers
14 would be recapped, is that fair to say?
15 A That's right.
16 Q Now, you talked a little bit about the
17 wheel process and the locomotive coming into the
18 building. Actually it comes in on what is called raised
19 rails; is that right?
20 A That's correct.
21 Q That allows the machinist to have an area
22 on either side of those rails that is about waist high,
23 the rails are about waist high; is that right?
24 A That's right.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 75 111 Mr. Simmons - Cross
1 Q And then the locomotive trucks or where
2 the wheels are are around chest high; is that fair to
3 say?
4 A The cap part of it, yes.
5 Q So that we can be talking off the same
6 picture, this is Plaintiff's Exhibit Number 2. This is
7 the bottom of the wheel; is that correct?
8 A That is correct.
9 Q That would be sitting at about waist high?
10 A Yes.
11 Q This cap area, this elongated area, would
12 be somewhere around chest high?
13 A In that position it would be.
14 Q This is the capped position?
15 A That is correct.
16 Q Now, as I understand it the purpose of the
17 shock absorber is to dampen motion within the locomotive;
18 is that right?
19 A Yes.
20 Q So, the shock absorber is designed to 21 move, to expand in and out; is that correct?
22 A That is correct. 23 Q You have compressed shock absorbers
24 manually; is that right?
CENTRAL VIRGINIA REPORTERS {540} 380-5017 76 112
Mr. Simmons - Cross
1 A Yes.
2 Q That is a task that you have done?
3 A I have, yes.
4 Q You would agree, would you, that the best
5 way to compress the shock absorber is by using a slow
6 steady pressure?
7 A That is the way we had to do it, yes.
8 Q It is by providing a constant amount of
9 pressure, is what makes you able to close the distance;
10 is that right?
11 A Sometimes to start you have to push it a
12 little harder so that once you extend it sometimes it
13 will hang and you have to push it harder to get it
14 started.
15 Q Now, you mentioned that in certain
16 circumstances you can use a pry bar to compress a shock
17 absorber, and you mentioned about compressing the shock
18 absorber putting a pry bar on this area down here?
19 A Uh-huh.
20 Q Is that right?
21 A That's right.
22 Q That is called a pedestal cap?
23 A Exactly.
24 Q This is about how far below the bottom of
CENTRAL VIRGINIA REPORTERS (540) 380-5017 77 113 Mr. Simmons - Cross
1 this cap?
2 A It is about four to five inches below 3 that.
4 Q So, it would be fair to say that a shock
5 absorber that was two inches lower, a pry bar could be
6 put in here and it could be used to lever up the shock;
7 is that correct?
8 A If it stopped at that position it would
9 be, but most of the time it would go past that.
10 Q My question is for compressing a shock
11 absorber on this configuration here about two inches, a
12 pry bar can be placed on the pedestal cap and then it can
13 be compressed; is that right?
14 A I'd say if it stopped there it would.
15 Q At two inches if it stopped it would. In
16 fact, you have called for help when you needed help on
17 other shock absorbers; is that correct?
18 A I only had to have help once on it. This
19 was after he was injured and I didn•t want to apply any
20 more pressure on it.
21 Q Now, during the time that you were working
22 on the wheel machine you are not aware of anyone before
23 Ron Bowles being injured; is that correct?
24 A No.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 78 114
Mr. Simmons - Cross
1 MR. BALLOU: Nothing further, Your Honor.
2 THE COURT: Is he free to leave?
3 MR. FERRIS: Yes, sir.
4
5 (The Witness was excused
6 from the Witness Stand.}
7
8 THE COURT: Call your next witness.
9 MR. FERRIS: I call Mr. Dowdy.
10
11 WILLIAM DOWDY,
12
13 was called as a witness and after having first been duly
14 sworn to tell the truth, the whole truth, and nothing but
15 the truth, was examined and testified as follows:
16
17 DIRECT EXAMINATION
18
19 BY MR. FERRIS:
20 Q State your name for the Court, please.
21 A William Dowdy.
22 Q Mr. Dowdy, how are you employed?
23 A A machinist at Norfolk Southern.
24 Q How long have you been a machinist for
CENTRAL VIRGINIA REPORTERS (540) 380-5017 79 115 Mr. Dowdy - Direct
1 Norfolk Southern?
2 A Thirty years.
3 Q Have you ever worked any other jobs at
4 Norfolk Southern other than that of a machinist?
5 A No, sir, I haven't.
6 Q Can you tell us, please, where you are
7 currently working as a machinist at Norfolk Southern?
8 A At the Shaffers Crossing locomotive shop.
9 Q Were you working at the Shaffers Crossing 10 shop at any time prior to June of 1993?
11 A Yes, sir, I was.
12 Q Had you ever performed a job there that is 13 called truing which would be truing the wheels on a
14 locomotive?
15 A Yes, sir.
16 Q Where did you perform that work, there at
17 Shaffers Crossing?
18 A Yes, sir.
19 Q Who taught you how to do that job? 20 A There were several people, Paul Smith, Ron
21 Bowles. They are the two that come to mind.
22 Q You weren 1 t trained by just Ron Bowles; is 23 that correct?
24 A No, sir, I wasn't.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 80 116
Mr. Dowdy - Direct
1 Q In your training did you receive any
2 specialized training by way of written documentation or
3 seminars or classroom instruction or anything like that
4 other than on-the-job training for that particular job?
5 A No, sir, I didn•t.
6 Q If you would, please, tell us just
7 basically how that procedure works. What do you do when
8 you true a wheel?
9 A First, the locomotive would be moved onto
10 the wheel truing machine, the shock absorbers and axle
11 end caps would be removed so the shocks could be folded
12 up out of the way, and then it would be moved over the
13 machine to where it would need to be picked up.
14 That wheel would be picked up on either of
15 the rollers and a section of rail would retract, and then
16 the wheel -- excuse me -- then the axle would be centered
17 on spindles, which come into the end of the axle
18 predrilled at a taper, and then the cutter part of the
19 machine would be raised up to the wheel, the cutter
20 spindle started, the rollers to turn the wheel would be
21 started.
22 I left out gauging it to the cutters, but
23 the cutters would be raised up to the wheel and the wheel
24 would be turned one time, possibly two, three
CENTRAL VIRGINIA REPORTERS (540) 380-5017 81 117
Mr. Dowdy - Direct
1 revolutions, at which time it would be conformed back to
2 specifications for it to be returned to the road.
3 Q How did you get to the wheel to get that
4 cutter to it?
5 You mean to the axle?
6 Q Yes.
7 A You remove the axle end cap and the shock
8 absorber if there is one on that wheel.
9 Q There is more than one kind of shock
10 absorber; is that correct?
A
12 Q Are some of them removable completely?
13 A Some are, yes, sir.
14 Q Are all of them removable?
15 A No, sir.
16 Q The ones that cannot be removed, do they
17 have to stay on the locomotive while this work is being
18 done?
19 A Yes, sir, they do.
Q
21 is being done?
22 A The ones that have to remain?
23 Q The ones that have to remain, yes.
24 A They are folded up and a bolt or whatever
CENTRAL VIRGINIA REPORTERS (540} 380-5017 82 118 Mr. Dowdy - Direct
1 is used on that particular one would be wedged in to hold
2 it out at ideally straight out.
3 Q And then you move the machine in and you
4 do the work; is that correct?
5 A You move the locomotive onto the machine.
6 Q How is that bolt and assembly put back
7 together?
8 A After it is moved off the cutters, the
9 axle end cap goes back on and then the shock is lowered
10 down, the bolts are lined up with the end of the journal
11 box.
12 Q I am going to show you what has been
13 marked and admitted into evidence as Plaintiff's Exhibit
14 Number 2. Is this what you are talking about here, the
15 shock and the end cap?
16 A Yes.
17 Q Show the Jury what you are talking about
18 when you are talking about the shock.
19 A This is the shock absorber from here to
20 here.
21 Q The end cap?
22 A This placement here.
23 Q How is the shock absorber lined up with
24 the wheel after the truing procedure is completed?
CENTRAL VIRGINIA R19~RTERS (540) 380-5017 119
Mr. Dowdy - Direct
1 A Just pressed up. Normally they would
2 release. This is where I was talking about you put the
3 bolt behind it. They would release.
4 Q What do you mean release?
5 A Expand. In other words, if this were cut
6 loose here, it would immediately start. As the whole end
7 shock bled off it would --
8 Q You are moving your hand downward.
9 A Yes.
10 Q For the Jury•s sake, what we are looking
11 at here, the shock which is in the center of the picture,
12 we have actually got two pieces there, is that right, the
13 lower which is a plunger that goes inside the upper one?
14 A It is all one piece but this lower part
15 works inside of the upper part.
16 Q Right. Is this the part that you are
17 talking about that expands?
18 A Yes, sir.
19 Q How do you get that back into position?
20 A Normally you would get under it and just
21 push it up. Depending on the age of the shock it could
22 take more to push some up than others.
23 Q You say it takes more to push some up than
24 others. Have you ever talked to anybody at Norfolk
CENTRAL VIRGINIA REPORTERS (540) 380-5017 84 120
Mr. Dowdy - Direct
1 ·southern about how much energy or effort it takes to push
2 that shock up?
3 A No, sir.
4 Q You have never talked to anybody about
5 that particular procedure?
6 A I know it is a lot. I don't know what --
7 no, sir. I know it is a lot.
8 Q Pardon me?
9 A I know it is a lot. It takes a lot of
10 pressure to compress that shock again, but as far as
11 anybody giving me instructions and telling me what it did
12 take, no, sir.
13 Q I guess maybe I haven't made my question
14 clear and I am sorry. Did you ever complain to anybody
15 about the amount of effort it takes to push that shock?
16 A Yes, I have.
17 Q To whom did you complain?
18 A The supervisor over the wheel machine.
19 Q Do you remember what exactly you told the
20 supervisor over the wheel machine about that particular
21 procedure?
22 A That it was awkward, cumbersome and heavy
23 and it made my back hurt basically.
24 Q What did the supervisor respond?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 85 121 Mr. Dowdy - Direct
1 A Normally it was "Well, we will look into
2 it. II
3 Q The education that I asked you about 4 earlier, did any of those supervisors ever offer you any 5 additional education or instruction as to how that shock 6 should be compressed? 7 A No, sir.
8 Q Did any of them ever tell you you were
9 doing it incorrectly?
10 A No, sir.
11 Q The way you were doing it, was that the
12 way Mr. Bowles as well as the other gentleman that you
13 talked about instructed you how to do it?
14 A Yes, sir.
15 Q You weren't present when Ron Bowles was 16 injured; is that correct?
17 A No, sir.
18 Q You don't know anything about that
19 particular set of circumstances except for what you have
20 heard from other people; is that right?
21 A That's right.
22 MR. FERRIS: Thank you. Those are all the
23 questions I have.
24
CENTRAL VIRGINIA REPORTERS (540} 380-5017 86 122 Mr. Dowdy - Cross
1 CROSS-EXAMINATION
2
3 BY MR. BALLOU:
4 Q Mr. Dowdy, you worked on and off the wheel
5 machine, you weren't there constantly; is that correct?
6 A That is correct.
7 Q The longest you worked the wheel machine
8 full time was a year and a half; is that right?
9 A Yes, sir.
10 Q About the time or at the time that Ron
11 Bowles began to mark off or left work with N&W you
12 weren't working the wheel machine; is that right? 13 A No, sir, I wasn't.
14 Q In fact, the full-time workers were Mr. 15 Pauley and Pack; is that right?
16 A Yes.
17 Q I take it Ron Bowles was one of the
18 persons that trained you on how to operate the wheel 19 machine?
20 A Yes, sir, he was.
21 Q The other person was a fellow by the name 22 of Paul Smith; is that correct?
23 A Yes.
24 Q Paul Smith is another machinist?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 87 123 Mr. Dowdy - Cross
1 A Yes, sir.
2 Q He had the same job essentially as Ron
3 Bowles; is that right?
4 A Yes.
5 Q The training that you received through Mr.
6 Smith and Mr. Bowles included to teach you how to take
7 off the end caps; is that correct?
8 A Yes, sir.
9 Q And to teach you how to raise the shock
10· absorbers out of place so that they would clear the wheel
11 machine; is that right?
12 A Yes, sir.
13 Q And to teach you how to prop those up?
14 A That's right.
15 Q The training they also gave you included
16 how to reverse that process, how to lower the shock
17 absorbers; is that right?
18 A To the best of their knowledge.
19 Q They also taught you how to realign the 20 caps; is that right?
21 A Yes.
22 Q What we are talking about if I am correct,
23 Mr. Dowdy, when you talk about the training for
24 recapping, all that it is is getting these four bolt
CENTRAL VIRGINIA REPORTERS (540) 380-5017 88 124
Mr. Dowdy - Cross
1 holes lined back up so you could reattach that cap; is
2 that correct?
3 On that locomotive, yes.
4 This is what is called a GP60; is that
5
7 That is made by a company called EMD?
8 Yes, General Motors.
9 The wheel machine operators see a lot of
10 different types of locomotives that come through there,
11 is that right?
12 A Two types; GE and EMD.
13 Q And they have different configurations?
14 A Yes.
15 Q And on that one, Plaintiff•s Exhibit
16 Number 2, it is a matter of realigning the four bolt
17 holes to recap the end cap; is that correct?
18 A Yes, sir.
19 Q After you finished your training with Mr.
20 Smith and Mr. Bowles you understood the process, didn•t
21 you?
22 A Yes, sir.
23 Q You understood that that process included
24 sometimes having to compress shock absorbers; is that
CENTRAL VIRGINIA REPORTERS (540) 380-5017 89 125
Mr. Dowdy - Cross
1 correct?
2 A Yes.
3 Q In fact, it was not unusual that you would
4 have to compress shock absorbers; is that right?
5 A With Mr. Smith it was unusual because none
6 of the engines had shocks at that time.
7 Q But once shocks came through -- if they
8 didn't have shocks you wouldn't have to compress them; is
9 that right?
10 A This is true.
11 Q Once shock absorbers started to come
12 through and that was in the late '70s, early '80s; is
13 that right?
14 A Yes, sir.
15 Q Once shock absorbers came through, you
16 understood that you had to compress the shocks; is that
17 right?
18 A Yes.
19 Q How many wheels would you true and shocks
20 you would have to align in any given night?
21 A Anywhere from six to eight wheels, four
22 shocks per locomotive.
23 Q So about four
24 A Four to six.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 90 126 Mr. Dowdy - Cross
1 Q -- per night?
2 A Depending on which wheels you turned.
3 Q When I say per night I mean per shift.
4 A Right.
5 Q The railroad runs three shifts; is that
6 right?
7 A Yes.
8 Q And running locomotives through there
9 during each shift?
10 A Yes.
11 Q So, that is a fair estimate for each 12 shift?
13 A Yes.
14 Q Now, the locomotive when it comes through
15 it comes into the wheel building on what is called raised 16 rails; is that right?
17 A Yes, sir.
18 Q Those rails are about three feet high and 19 there is a walkway on either side; is that correct? 20 A There is a walkway on each side about two 21 and a half feet high.
22 Q About waist high for you?
23 A No, below my waist, mid thigh.
24 Q So, the shock absorber assembly is right
CENTRAL VIRGINIA REPORTERS (540) 380-5017 91 127 Mr. Dowdy - Cross
1 around your chest; is that right?
2 A Yes, sir.
3 Q The manner in which you compress shock
4 absorbers is to use a slow steady compression; is that
5 right?
6 A Yes.
7 Q Because, in fact, by pushing any harder or
8 faster it doesn't compress them any faster, does it?
9 A No.
10 Q In fact, the shock absorbers, they are 11 hydraulic?
12 A Yes.
13 Q They don't have a spring back?
14 A No.
15 Q If you let go of them while you are 16 compressing them -- they are attached at the top?
17 A Yes.
18 Q If you let go it doesn't spring back on
19 you?
20 A No, but it will start moving.
21 Q It will start leaking out on you but that
22 is a slow movement?
23 A You have to keep tension against it as you
24 are compressing it.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 92 128
Mr. Dowdy - Cross
1 Q Now, another way of compressing shock
2 absorbers is to use a pry bar; is that right?
3 A Yes, sir.
4 Q Or it's sometimes called a pinch bar; is
5 that right?
6 A Yes.
7 Q On the GP60 locomotive you could take a
8 pinch bar and place it on this area down here, which is
9 called a pedestal cap; is that right?
10 A Yes.
11 Q And compress the shock absorber up; is
12 that right?
13 A Yes, sir.
14 Q Another way you could do it with these
15 four bolt holes out is to put the pinch bar -- the short
16 end of the pinch bar through these holes and line it up
17 with the bolt hole if it was about an inch or two away?
18 A Once you got within an inch of it, two
19 inches possibly.
20 Q An inch or two inches?
21 A An inch.
22 Q If it was around two inches you could use
23 the pedestal cap; is that correct?
24 A Yes.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 93 129 Mr. Dowdy - Cross
1 Q When you would compress with the pry bar
2 you didn't have to compress manually?
3 A That is correct.
4 Q During the time that you were working the
5 wheel machine or the time that you have been at Shaffers
6 Crossing before Ron Bowles was injured, you weren't aware
7 of anyone else injured compressing shocks?
8 A No, sir.
9 MR. BALLOU: Nothing further, Your Honor.
10 MR. FERRIS: Your Honor, I have some
11 follow-up based on the Cross-Examination. If I
12 may proceed.
13
14 REDIRECT EXAMINATION
15
16 BY MR. FERRIS:
17 Q Mr. Dowdy, referring you again to
18 Plaintiff's Exhibit Number 2, which is what Mr. Ballou
19 was referring to, if you are going to use the pry bar the
20 plate would have to be in an area where the pry bar would
21
22 MR. BALLOU: Object to leading.
23 THE COURT: Sustain the objection.
24
CENTRAL VIRGINIA REPORTERS {540) 380-5017 94 130
Mr. Dowdy - Redirect
1 BY MR. FERRIS:
2 Q Where would the plate have to be in order
3 for you to be able to use the pry bar?
4 A It would have to be -- the pry bar comes
5 to a point probably a quarter inch thick and that would
6 be the toe in the pry bar. It would have to be within I
7 would say an inch again.
8 Q Now, where does the plate have to be in
9 order for you to use the pry bar in the hole where the
10 bolts were based upon what Mr. Ballou was asking you a
11 minute ago?
12 A It would have to be within an inch of the
13 hole and be down against this if that is pulled out.
14 This is a rubber bushing up here.
15 Q Can you tell us whether or not this
16 particular I guess you call it a train -- whether this
17 is really what the trains look like when they come in for
18 this kind of work?
19 A I think that is a general.
20 Q Are they nice and clean like this?
21 A They are clean, but a lot of times they
22 still have water running off of them because having come
23 off the test line they go through an engine wash.
24 Sometimes they are placed immediately onto the wheel
CENTRAL VIRGINIA REPORTERS (540) 380-5017 95 131 Mr. Dowdy - Redirect
1 machine.
2 Q Might they also have substances other than 3 water on them?
4 A Yes, sir.
5 Q Like what?
6 A They could still have oil, grease, the
7 chemicals that were used in cleaning.
8 Q If oil, grease or chemicals are present in
9 this area when you go to perform that function, does that
10 make a difference as to whether or not you decide to use
11 the pry bar?
12 A It would make a difference to me.
13 Q Why?
14 A The bar could slip. You are talking about 15 a one-inch basically round bar prying against a
16 three-eighths inch plate and --
17 Q When you say three-eighths inch, what is
16 three-eighths inches, is that the lip?
19 A That is the thickness of that cap there 20 you showed me.
21 Q Have you ever been instructed to always 22 use the pry bar when you perform that operation?
23 A No, sir.
Q Has anybody from the safety committee --
CENTRAL VIRGINIA REPORTERS (540) 380-5017 96 132
Mr. Dowdy - Redirect
1 when they find you are not using the pry bar, have you
2 been reprimanded for not using the pry bar?
3 A No, sir.
4 Q Do you always use the pry bar?
5 A No, sir.
6 Q Why not?
7 A I don•t know.
8 Q Is it possible to always use the pry bar?
9 MR. BALLOU: Your Honor --
10 THE COURT: I sustain the objection. It
11 is objection for leading questions and asking for
12 expert opinion.
13 MR. FERRIS: Is it possible for him to
14 always use a pry bar?
15 MR. BALLOU: Again, these are pictures of
16 the locomotive that is involved and we need to
17 confine our questions to a GP locomotive for one,
18 and two, he is asking for opinions.
19 THE COURT: And you have him on Redirect
20 and you are limited to what the questions and the
21 areas that were asked on Cross-Examination, and
22 the questions are leading and you are asking for
23 opinions.
24 MR. FERRIS: I will withdraw the question,
CENTRAL VIRGINIA REPORTERS (540) 380-5017 97 134 Mr. Dowdy - Redirect
1
2 BY MR. FERRIS:
3 Q Were you ever present at a safety meeting
4 when Ron Bowles complained about this procedure?
5 A Yes, sir.
6 MR. BALLOU: Your Honor, it is beyond the
7 scope of Cross.
8 THE COURT: It is, but he could just.call
9 him back as his own witness. I am going to allow
10 that.
11
12 BY MR. FERRIS:
13 Q Were you ever present at safety meetings
14 when Ron Bowles complained about the compression of the
15 shocks?
16 A Yes.
17 Q Did he complain more than one time?
18 A Yes, he did.
19 Q Did he complain about the amount of effort
20 it took to compress the shock?
21 A Yes.
22 MR. FERRIS: Thank you. Those all the
23 questions I have.
24 MR. BALLOU: Nothing further, Your Honor.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 135
Mr. Dowdy - Redirect
1 THE COURT: Thank you, sir. You can step
2 down.
3
4 (The Witness was excused
5 from the Witness Stand.)
6
7 MR. FERRIS: Our next witness is going to
8 require the use of the video equipment. If.the
9 Court wants us to take a short break or I will
10 just wheel it out and do it right this minute.
11 THE COURT: Can you wheel it out and do it
12 right away?
13 MR. FERRIS: Yes, sir.
14 THE COURT: I guess we will take a
15 five-minute break.
16
17 (A recess was taken off the Record.)
18
19 MICHAEL SHINNICK,
20
21 was called as a witness and after having first been duly
22 sworn to tell the truth, the whole truth, and nothing but
23 the truth, was examined and testified as follows:
24
CENTRAL VIRGINIA REPORTERS (540) 380-5017 99 136 Dr. Shinnick - Direct
1 DIRECT EXAMINATION
2
3 BY MR. TOBIN:
4 Q Would you state your name, please.
5 A Yes, Michael D. Shinnick.
6 Q What is your profession?
7 A My profession is work injury management
8 which includes ergonomics and vocational rehabilitation.
9 Q Where are your offices located?
10 A I have two offices, one in Blacksburg,
11 Dynamics Research Group at Research Park, 670 Sunshine
12 Farm Lane, and I have an office in Roanoke on 2nd Street,
13 1130 2nd Street, Southwest, Virginia, Physical Medicine
14 and Rehabilitation.
15 Q In terms of your educational background
16 have you obtained a Bachelor of Science degree?
17 A Yes, I did.
18 Q Where was that from?
19 A Florida State University in 1968.
20 Q Do you also hold a master's degree?
21 A Yes, sir.
22 Q What was the focus of your master's?
23 A It is from Auburn University, 1971, in
24 rehabilitation counseling and psychology.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 100 137
Dr. Shinnick - Direct
1 Q Additionally do you hold a doctorate
2 degree?
3 A Yes, I do.
4 Q What is the focus of your doctorate?
5 A The focus was in the Department of
6 Rehabilitation specializing in service systems for
7 individuals who have acquired handicapping or vocational
8 disabilities.
9 Q Additionally, do you engage in
10 post-doctoral studies?
11 A Yes. From 1979 to '91 I took
12 post-doctoral studies in industrial engineering and what
13 was called then human factors, now it is called
14 ergonomics. It is essentially the study of work
15 processes and procedures and relationships of people to
16 work.
17 Q In terms of professional certifications,
18 are you professionally certified in any areas?
19 A Yes, sir.
20 Q What areas would that include?
21 A I am certified in a number of areas. One
22 is as a certified vocational evaluator from the National
23 Commission on Certification of Work Adjustment and
24 Vocational Evaluation. That is a national certificate
CENTRAL VIRGINIA REPORTERS (540) 380-5017 101 138 Dr. Shinnick - Direct
1 that is renewed every five years based on study, 2 contributions to the field.
3 Q What does a vocational evaluator do?
4 A It is a person who assesses an
5 individual's aptitudes, past work history as far as
6 skills acquired, perhaps their disability or limitation
7 that they acquire and what transferable skills they may
8 have, if any, to other jobs, and may even involve
9 assisting the person in obtaining employment.
10 Q Additionally are you board certified in 11 the area of ergonomics?
12 A Yes.
13 Q Could you explain to the Jury what the
14 study of ergonomics involves?
15 A The study of ergonomics is the
16 relationship of people to work, and what I did
17 essentially is the rehabilitation side is the people's
18 side, the ergonomics, human factors, is the work element,
19 and they combine so that in ergonomics I can study a job,
20 what it requires from a safety standpoint, from a
21 biomechanical standpoint, from a lifting requirement, and
22 either match a person to that job or accommodate or 23 change that job so that an individual could do it or it 24 is within safe parameters to be done or that work task
CENTRAL VIRGINIA REPORTERS (540) 380-5017 102 139
Dr. Shinnick - Direct
1 safely completed.
2 Q You are board certified in that area?
3 A Well, I am board certified as a work
4 management and ergonomics trainer by the International
5 MODAPS Association. I am also certified as a diplomate
6 by the American Board of Forensic Examiners as a
7 specialist in ergonomics, work injury management and
8 rehabilitation.
Q Additionally are you a registered
10 vocational expert?
11 A Yes, and that is for Social Security
12 Administration. I will testify in cases of people who
13 have applied for disability regarding their
14 transferability of skills and if there are jobs that they
15 could do in the economy.
16 Q You are a consultant then to the Social
17 Security Administration?
18 A Yes. I am also certified by the State of
19 Virginia as a certified rehabilitation provider.
20 Q Can you just briefly outline your
21 professional work experience?
22 A Yes. I have been a professor since I got
23 my doctorate in 1977 through 1985 in the Department of
24 Rehabilitation. During that time I did post-doctoral
CENTRAL VIRGINIA REPORTERS (540) 380-5017 103 140
Dr. Shin~~ck - Direct
1 training in the Department of Engineering. I also
2 traveled to Australia to study ergonomics and work injury
3 assessment in the workplace.
4 In 1986 I started -- well, I started
5 Dynamics Research Group earlier, but I went full time
6 with Dynamics Research Group which provides consulting
7 and training for companies like Ford Motor Company, UAW,
8 Abbott Labs, Boeing, Roadway Express, and a lot of
9 smaller companies and associations that require training
10 in how to analyze the job, how to assess individuals, how
11 to minimize risk factors in the workplace.
12 Q Have you had occasion to issue a number of
13 publications?
14 A Yes.
15 Q What is the general nature of those
16 publications?
17 A They have to do with assessing the
18 individual rehabilitation and engineering. There are a
19 number of articles that I have written for, for example,
20 Industrial Engineering, Work Measurement Systems. I
21 shared responsibility with workers at Ford. I have
22 published articles such as the Common Language for
23 Analyzing Work, which talks about assessing an individual
24 in the job.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 . 104 141
Dr. Shin~ick - Direct
1 I published book chapters regarding a
2 partnership between rehabilitation and engineering
3 related to human factors, ergonomics and coordinating
4 that with assessing individuals.
5 Q Have you been awarded various grants in
6 the course of your consultations?
7 A Yes, I have.
8 Q Can you explain what that involved?
9 A There have been a number of grants that I
10 was awarded at Auburn University. A number of them were
11 training grants in which I would receive a grant to train
12 people in the southeastern United States who were
13 professionals in say rehabilitation and how to measure
14 work; for example, how to apply work simplification, how
15 to apply work safety methods.
16 During that process I also hired human
17 factors engineers, industrial engineers to assist in
18 conducting that training.
19 I received grants in independent living,
20 in maximizing a person's capacity to function in life
21 with a severe disability and so forth.
22 MR. TOBIN: Your Honor, I would at this
23 time request permission to examine Dr. Shinnick
24 as an ergonomic and vocational expert.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 105 142 Dr. Shinnick - Direct
1 MR. BALLOU: We would like to voir dire.
2 THE COURT: Go ahead.
3
4 VOIR DIRE EXAMINATION
5
6 BY MR. BALLOU:
7 Q Your undergraduate degree is from Florida
8 State Business School; is that correct?
9 A Yes.
10 Q That was a major in hotel and restaurant
11 management; is that correct?
12 A It was a double major in finance and hotel
13 and restaurant management, yes.
14 Q In connection with that degree you took
15 classes that included marriage; is that correct?
16 A Yes. I was getting married and it was a
17 preparatory course.
18 Q Beginning golf; is that correct?
19 A Yes.
20 Q Food service engineering?
21 A Yes.
22 Q Hotel and restaurant operation; is that
23 correct?
24 A Yes.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 106' 143
Dr. Shinnick - Voir Dire
1 Q Principles of economics?
2 A Yes.
3 Q Housekeeping?
4 A Yes.
5 Q Music appreciation?
6 A Probably, yes.
7 Q Now, these courses don't have anything at
8 all to do with the railroad industry; is that correct?
9 A No.
10 Q They also don't have anything to do with 11 ergonomics; is that correct?
12 A No.
13 Q You graduated from Florida State and went 14 on and got a master's degree; is that correct? 15 A Yes.
16 Q That is a degree in rehabilitation 17 counseling and psychology? 18 A Yes.
19 Q Again, that does not involve the railroad
20 industry; is that correct? 21 A Not directly. It may as far as assessing
22 an individual who has been injured.
23 Q You received a doctorate in education from
24 Auburn University?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 107 144
Dr. Shinnick - Voir Dire
1 A Yes.
2 Q Again, that did not have anything to do
3 with the railroad industry; is that correct?
4 A Not specifically with the exception of,
5 again, working with someone who has acquired an injury.
6 Q But in your doctorate and your master's
7 you didn't study the railroad industry?
8 A No, I did not.
9 Q While you were working on your doctorate
10 you were the head of the Division of Vocational
11 Rehabilitation at the Achievement Center in Opelika,
12 Alabama; is that correct?
13 A No. I was at Opelika, Alabama, as a
14 program coordinator for almost two years after I got my
15 master's degree and before I entered the doctoral
16 program.
17 Q But, again, that was not involved in the
18 study of the railroad industry or work sites of the
19 railroad industry; is that correct?
20 A No.
21 Q You next worked for the Professional
22 Rehabilitation Facility, Personnel and Management, Work
23 Adjustment and Vocational Rehabilitation; is that
24 correct?
CENTRAL VIRGINIA REPORTERS (540) 380-5017
108 145
Dr. Shin~ick - Voir Dire
1 A At Auburn University as a research
2 associate.
3 Q Again, you were not studying the railroad
4 industry?
5 A No.
6 Q Or its work sites; is that correct?
7 A That is correct.
8 Q After that you worked as a coordina~or of
9 Rehabilitation Management Training Programs at Auburn?
10 A Yes.
11 Q Again, that didn't have anything at all to
12 do with the study of railroad industry or any of the
13 railroad work sites; is that correct?
14 A That's correct.
15 Q From 1979 to 1981 you were the director of
16 independent living in a project dealing with severely
17 handicapped individuals; is that correct? 18 A Yes.
19 Q Again, that didn't have anything at all to
20 do with the railroad industry?
21 A No.
22 Q Or study of railroad work site.s; is that 23 correct?
24 A That is correct.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 109 146 Dr. Shinnick - Voir Dire
1 Q From 1979 to 1983 you were an assistant 2 professor and director of the Rehabilitation 3" Administrative Program
4 A That is correct.
5 Q -- at Auburn; is that correct? Again, 6 that had nothing to do with the study of the railroad 7 industry or railroad work sites? 8 A No, it did not.
9 Q Thereafter, 'you became a professor of 10 Rehabilitation and director of the Rehab Continuing 11 Education at Auburn; is that correct? 12 A That is correct.
13 Q Again, this study had nothing to do with 14 the study of the railroad industry or study of railroad 15 work sites? 16 A That is correct.
17 Q Currently your business, Dynamics 18 Research, has only one full-time employee? 19 A Yes. 20 Q Your publications that you referred to, 21 they do not involve study of the railroad industry; is 22 that correct? "'\ 23 A That is correct. \ 24 Q You have never been employed by any \ \
CENTRAL VIRGINIA REPORTERS (540) 380-5017 110 147
Dr. Shinnick - Voir Dire
1 railroad to assess its work sites?
2 A Not directly, no.
3 Q You are not an engineer?
4 A No.
5 Q You are not a biomechanical engineer?
6 A No.
7 Q You are not a biomedical engineer?
8 A No.
9 Q You have no licenses to do any engineering
10 functions; is that correct?
11 A No, that is not correct. What do you mean
12 by license?
13 Q You hold no licenses as an engineer; is
14 that correct?
15 A That is correct, I do not.
16 MR. BALLOU: Nothing further, Your Honor.
17 We have a matter to take up if you would like.
18 THE COURT: I will hear the lawyers
19 outside the presence of the Jury.
20
21 {The Court and Opposing Counsel
22 left the Open Courtroom.)
23
24 THE COURT: All right. Go ahead.
/
CENTRAL VIRGINIA REPORTERS (540) 380-5017 111 148
1 MR. BALLOU: We would object to Dr.
2 Shinnick testifying as an expert in· the area of
3 ergonomics in that he has no formal training in
4 that area, he has no education, his whole
5 background has been involved in vocational
6 rehabilitation and we do accept him to render
7 those opinions and won't object to him rendering
8 those opinions as an expert.
9 We do believe, however, for him to render
10 opinions regarding workplace safety and work
11 sites when he has never assessed the railroad
12 industry and his background does not involve the
13 railroad industry or assessing railroad work
14 sites is inappropriate, and he doesn't qualify as
15 an expert in engineering to come in and testify
16 as to whether or not the railroad -- to testify
17 about this railroad work site.
18 MR. TOBIN: Your Honor, he is a board
19 certified work measurement ergonomist.
20 Additionally he is board certified by the
21 American Board of Forensic Examiners in a
22 specialty, in that regard ergonomics. We have ~ \ 23 already been through the rest of his \ I I 24 credentials. I think he is qualified both to \
CENTRAL VIRGINIA REPORTERS (540) 380-5017 112 149
1 testify in ergonomic areas as well as vocational.
2 THE COURT: I think he probably is, too,
3 but let me look through the CV real quick and
4 make sure. I have heard his credentials so
5 frequently in the past I may not have been paying
6 attention to every bit of it.
7 Is he the gentleman who has testified
8 frequently in the past about his work within the
9 factory at Ford Motor Company and considerable
10 other major workplaces in the field of
11 ergonomics?
12 MR. TOBIN: Yes.
13 THE COURT: I know this CV that I am
14 looking at hadn't been presented actually in
15 evidence, we heard just the highlights of it.
16 MR. TOBIN: I will tender a clean copy.
17 THE COURT: But I am satisfied for several
18 reasons; one, that Dr. Shinnick has testified in
19 the past when we had his entire detailed
20 curriculum vitae into evidence, and he was
21 questioned extensively in the past concerning
22 some of the papers that he wrote.
23 It is real difficult for me to separate -~ 24 what I heard about his credentials in the past I ( I
CENTRAL VIRGINIA REPORTERS (540} 380-5017 113 150
1 and the limited amount that I heard in here
2 today.
3 Needless to say, he is one of the people
4 who come in and you just look up and say, oh,
5 yeah, that is Dr. Shinnick, he is back in. It
6 must be a railroad case.
7 However, with the tender of the CV into
8 evidence and I am going to accept Dr. Shinnick in
9 his area of expertise. He will give expert
10 testimony in vocational rehabilitation and in
11 ergonomics, and I am basing that a lot on almost
12 every railroad case I ever did got taken up and
13 Dr. Shinnick testified in at least half of them,
14 and I know that his credentials were raised on at
15 least one of those.
16 So, whether it was raised as an appeal
17 issue or whether it was just raised at the trial
18 level, I don't recall.
19 MR. BALLOU: You may want to, Judge, given
20 the areas that we were discussing during the
21 hearing last week, you may want to voir dire his
22 opinions regarding ergonomics because I think -- \ 23 THE COURT: Remind me again what we were ' \ ~ 24 talking about.
; ' CENTRAL VIRGINIA REPORTERS {540) 380-5017 114 151
1 MR. BALLOU: We expect him to testify in
2 this case and I am going to need to be able to
3 establish that the basis of his opinions includes
4 subsequent remedial measures, and I know I can't
5 ask that on Cross-Examination without opening up
6 that door, and we certainly object to that.
7 We also expect him to testify regarding
8 measurements that he took that under the
9 Titsworth case -- and I referenced that in our
10 hearing last week -- are not going to be
11 identical to the measurements.
12 We also expect him to render an opinion
13 regarding whether this work process was safe,
14 which necessarily includes a determination in his
15 mind as to whether it is likely to cause injury
16 which under the Combs' decision, as you know, he
17 can't render that opinion.
18 THE COURT: Which was the Combs?
19 MR. BALLOU: The Combs' decision is the
20 toilet tipping case which Your Honor heard
21 involving Dr. Shinnick, and also Dr. Dan Schneck
22 in which the question was asked whether the I r 23 activity could cause injury to a certain part of I I 24 the human body and --
CENTRAL VIRGINIA REPORTERS (540) 380-5017 115 152
1 THE COURT: In that particular case his
2 testimony was giving medical testimony and the
3 Supreme Court held that the Court had abused its
4 discretion in finding he would be an expert to -
5 especially because he was contradicting a medical
6 doctor. I don't see that as the same thing as
7 here.
8 Let's take your points one at a time so I
9 don't get them lost. First off, let me clarify
10 what we had our hearing on last week on the issue
11 of testimony as it deals with subsequent remedial
12 measures.
13 If the Plaintiff raises subsequent
14 remedial measures, you are going to have a
15 mistrial, no question about it. It is necessary
16 for companies to see a problem and step in and
'17 cure that problem right away so we don't have
18 future injuries. You can't use that against them
19 in a case.
20 If the expert, having looked and seen the
21 subsequent remedial measures, uses that to arrive
22 at his conclusion that this was an unsafe
23 exercise, he may do that. He may not tell the
24 Jury that he relied on subsequent remedial
CENTRAL VIRGINIA REPORTERS (540} 380-5017 116 153
1 measures to arrive at his conclusion unless the
2 Defendant opens it up.
3 Now, if the Defendant opens that up,
4 although traditionally the Plaintiff would have a
5 right then to go back into that point, I am
6 telling you right now if they open it up by
7 accident and the Plaintiff goes in like a shark
8 into that, you still may find yourself in a
9 mistrial situation, because as far as I am
10 concerned I don't want to discourage anybody from
11 correcting a safety defect.
12 And so, if the Defendant happens to bring
13 that up by accident, although technically that
14 opens the door, it may not open it very wide, so
15 be real careful when you get on that.
16 Then the next part dealt with him
17 testifying as to the medical cause. He cannot do
18 that.
19 MR. BALLOU: I believe, however, the
20 Combs' decision does state that a biomechanical
21 engineer cannot testify as to what would cause a
22 disc to rupture, not just whether the activity
23 that the Plaintiff was involved in
24 MR. TOBIN: He is not going
CENTRAL VIRGINIA REPORTERS (540) 380-5017 117 154
1 MR. BALLOU: Necessarily what he is going
2 to be testifying to is that this work activity
3 was likely to cause injury, and this is not a
4 situation where he would be testifying that there
5 is a pinch point where he was reaching where it
6 would be plainly obvious that a person would be
7 injured, but it is where someone is compressing a
8 shock absorber, and he is essentially rendering
9 the opinion that the manual compression of a
10 shock absorber is likely to cause injury with the
11 forces that he believes to be there and,
12 therefore, it is unsafe.
13 THE COURT: See, that was what I was
14 telling you at that last hearing. I have simply
15 got to hear that testimony. When you get to that
16 part, if you want to stop and we will throw the
17 Jury out and I will listen to that.
18 MR. TOBIN: That is those last few
19 exhibits.
20 MR. BALLOU: I was wondering if we wanted
21
22 MR. TOBIN: I think we can get into a
23 pretty good chunk of it without any problems.
24 It's those end exhibits I think is what you are
CENTRAL VIRGINIA REPORTERS (540) 380-5017 118 155
1 talking about.
2 MR. BALLOU: Also, any testimony that it
3 is unsafe.
4 THE COURT: Isn't that what ergonomics is,
5 the safety of the workplace?
6 MR. BALLOU: But it necessarily entails
7 him making a conclusion that this work process is
8 likely to cause injury, which under Combs he
9 cannot testify to.
10 THE COURT: I don't think that is what
11 Combs says and I think Combs dealt with taking a
12 person who was not a physician and having him
13 give expert testimony that is limited to that of
14 a physician.
15 We are talking about here this is a safety
16 expert and I think he can testify within his
17 field. He may not be able to testify as to what
18 precise injury but, for instance, if the question
19 dealt with weights and there is his -- I don't
20 know what his expertise is insofar as that, but
21 if a person can hold X number of pounds and that
22 is within his expertise, he can testify that this
23 weighed X plus f~ve pounds, therefore, it was an
24 unsafe weight and caused his injury.. That is
CENTRAL VIRGINIA REPORTERS (540) 380-5017 119 156
1 different than what the Combs• case did for it. 2 MR. BALLOU: Just for the Record, we will
3 object to that type of testimony and we will
4 certainly object when the question is asked, and
5 we will probably need to voir dire where we are
6 at that point in time.
7 I don't want to unnecessarily break up the
8 Plaintiff's presentation.
9 THE COURT: How about this, do you want to
10 give the Jury a longer break and let me hear 11 whatever his testimony is we are talking about?
12 MR. TOBIN: I think we can get to the
13 point of getting to the three charts without any
14 problems whatsoever. Once I get to the three
15 charts, I think that is where almost everything 16 is you are talking about.
17 THE COURT: How long would it be?
18 MR. TOBIN: I would say about 15 minutes.
19 THE COURT: Let's go ahead and excuse the
20 Jury and hear that part.
21
22 (The Court and Opposing Counsel
23 returned to the Open Courtroom.)
24
CENTRAL VIRGINIA REPORTERS (540) 380-5017 120 157
1 THE COURT: Ladies and gentlemen, it is
2 going to be necessary for me to hear some
3 evidence outside of your presence. I thought we
4 could do it without doing that.
5 So, we are going to take another recess,
6 ten or fifteen minutes, long enough time for
7 anybody that needs to step outside to do so. If
8 you all will go with the sheriff we will call you
9 back in in ten or fifteen minutes.
10
11 (The Jury was excused from the
12 Open Courtroom.)
13
14 THE COURT: There were several objections
15 made during the Motion in Limine that were
16 brought up when we stepped out to argue this
17 objection. They deal with some of the rulings of
18 the Supreme Court in the area in which this
19 witness is going to testify.
20 So, I certainly don't want to tell anybody
21 how to testify and, quite frankly, I haven't
22 gotten exactly what his objections were. After
23 we clear up whatever, we will need to remember
24 that any portion of the testimony would either
CENTRAL VIRGINIA REPORTERS (540) 380-5017 121. 158
1 have to be excluded or reworded in such a way as
2 to not affect the Jury.
3 Do you want to go through the areas that
4 you all were talking about and maybe give me a
5 brief outline of what you are objecting to and
6 MR. BALLOU: Judge, I wonder if it is
7 appropriate just to voir dire the opinions
8 themselves, ask what they are and what the basis
9 of them are. That might be the easiest way to do
10 that.
11 THE COURT: However you want to do it.
12 MR. TOBIN: I think initially while we are
13 going through these three exhibits it probably
14 would take care of most of your objections.
15 MR. BALLOU: We are going to object to
16 forces for one.
17 THE COURT: The point dealing with
18 forces?
19 MR. BALLOU: Yes, and we also object and
20 it is probably appropriate to have the opinion
21 voir dired on the phase of him rendering opinion
22 regarding safety, necessity for it to consider
23 for the witness to consider what factors are
24 likely to cause injury where it is not plainly
CENTRAL VIRGINIA REPORTERS (540) 380-5017 122 159
1 obvious that a particular work procedure will
2 cause injury.
3 THE COURT: Let's go through these one at
4 a time. The first objection deals with the
5 amount of force used to compress a shock
6 absorber; is that correct?
7 MR. BALLOU: We expect him to render
8 certain opinions regarding forces. Exactly.how
9 it is going to come out, I am not exactly sure.
10 THE COURT: We are not talking about the
11 dark force. We are talking about pressure put on
12 the shock absorber?
13 MR. BALLOU: That is correct.
14 THE COURT: When you use the word force
15 you are talking about the pressure or the amount
16 of pressure or something like that applying to
17 the shock absorber?
18 MR. BALLOU: That is correct.
19 THE COURT: Do you want to go into that
20 part of the testimony while we are here?
21 MR. TOBIN: Sure.
22
23
24
CENTRAL VIRGINIA REPORTERS (540) 380-5017 123 160 Dr. Shinnick - Voir Dire
1 VOIR DIRE EXAMINATION
2
3 BY MR. TOBIN:
4 Q Did you conduct a work task analysis?
5 A Yes, sir, I did.
6 Q In that regard did you take some
7 measurements?
8 A Yes, I did.
9 Q Did those measurements depict a range of
10 exertional levels that an individual compressing a shock
11 would be exposed to?
12 A Yes, it did, at a static moment of
13 compressing the shock.
14 Q Those aren't necessarily the exact forces
15 that Ron Bowles would have been exposed to on June 23,
16 1993; is that correct?
17 A No, they would not be.
18 Q It is just a range of measurements?
19 THE COURT: In that case, everything that
20 Mr. Ballou said in the arguments last week in the
21 Motion in Limine come back to me immediately, and
22 what you are telling me, if I understand it
23 correctly, is that these tests are nothing more
24 than recreations in effect of the accident, and
CENTRAL VIRGINIA REPORTERS (540} 380-5017 124 161
Dr. Shinnick - Voir Dire
1 you can't tell me if this is exactly what
2 happened with him or not, but rather he tells me
3 a range that these people could be subjected to;
4 is that correct?
5 THE WITNESS: Yes.
6 MR. TOBIN: Yes.
7 THE COURT: I sustain that objection and I
8 will not allow that type of -- for lack of better
9 words, accident reconstruction is what that
10 amounts to and I will not allow that in.
11 That is what your objection last week
12 was?
13 MR. BALLOU: That is correct, Your Honor.
14 THE COURT: I sustain that.
15 MR. TOBIN: What was your next objection,
16 Robert?
17 MR. BALLOU: I think that will take all
18 the charts out; is that right?
19 MR. TOBIN: It probably would.
20
21 BY MR. TOBIN:
22 Q Those measurements that you took, were
23 those the basis of Plaintiff's Exhibit Number 5, the
24 basis or were they used in developing this exhibit?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 125 162 Dr. Shinnick - Voir Dire
1 A These are compression forces that an 2 individual in performing the work task of compressing the
3 shock would be confronted with.
4 Q Based on the compression measurements that
5 you took?
6 A Yes.
7 MR. TOBIN: That one is probably gone.
8 THE COURT: I will mark that refused. As
9 I understand it from what I have heard from the
10 witness' testimony, different shocks have
11 different pressure, some are hard and some are
12 easy, and it amounts to a recreation of the
13 accident and I don't have anything to show me
14 that -- maybe exactly isn't the correct word, but
15 I don't know how strong the pressure was on the
16 particular shock that he used.
17 And, so, if you will hand me that one I
18 will mark it refused.
19
20 (The above-mentioned document was marked
21 Plaintiff's Exhibit Letter Z and refused.) 22
23 THE COURT: Plaintiff's Exhibit Z marked
24 and refused. That way the Jury isn't going to
CENTRAL VIRGINIA REPORTERS (540) 380-5017 126 163
Dr. Shinnick - Voir Dire
1 get out of number exhibits from you and make it
2 look like anything was wrong with your exhibits.
3 You handed three exhibits up here. Are
4 all three of these to be --
5 MR. TOBIN: I think all three of them may
6 be based on the force compression measurement.
7 THE COURT: The one that says Liberty
8 Mutual Snook 1991 Force of Push, we will make
9 that Plaintiff's Exhibit Y and the one that says
10 Ergonomic Job Analysis, make that Plaintiff's
11 Exhibit X.
12
13 (The above-mentioned documents were marked
14 Plaintiff's Exhibit Letters X andY and
15 refused.)
16
17 THE COURT: I have only heard testimony
18 concerning Z, so I don't know what these other
19 exhibits are.
20
21 BY MR. TOBIN:
22 Q The measurements that you took with regard
23 to compression, were those used as a basis to develop
24 Plaintiff's Exhibit Y?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 127 164 Dr. Shinnick - Voir Dire
1 A No. The work task, if I may explain what
2 this represents, is given the task of compressing a shock
3 in the position that is required of the journal box,
4 design a job that 90 percent of the population or ten to
5 the 90th percentile could perform, this shows that for
6 that work task a maximum acceptable weight would be 39.8
7 pounds, and that is for that particular work task alone
8 of compressing a shock absorber to a journal plate ..
9 The height was slightly above the
10 shoulder. If the severity of push was 120 pounds, then
11 the severity of his task would be ten out of a one to
12 ten.
13 So, essentially we have two forces.
14 Liberty Mutual Insurance Company utilizes this to
15 determine how to design work tasks. They take a given
16 work task and the employer says, "What do I have to
17 design it to?" Liberty Mutual could put this in or
18 whoever had this algorithm or data and say, "Well, the
19 maximum force you could allow a worker to undergo in that
20 position would be 39.6 pounds, and if you went over that
21 then you would be above the maximum acceptable weight or
22 force."
23 THE COURT: What is your objection to that
24 one?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 128 165
Dr. Shinnick - Voir Dire
1 MR. BALLOU: Your Honor, first of all, to
2 the objection, Liberty Mutual Guidelines of
3 Standards are not subject -- the railroad is not
4 subject to the Liberty Mutual Guidelines of
5 Standards. There is going to be no testimony to
6 that effect. So, to allow the witness to testify
7 that Liberty Mutual says A, B, and C is improper,
8 for one.
9 Two, it talks about above the shoulder 10 height, which is completely inconsistent with the
11 testimony of both Mr. Simmons and Dowdy that you
12 have heard earlier this afternoon.
13 Three, it talks about a force of push of
14 120 pounds, which again is based on measurements
15 that are taken and measurements that are pulled
16 out of the air and are not to be reproduced.
17 And, four, the maximum acceptable weight,
18 there is no testimony before the Court as to the
19 amount of weight that Mr. Bowles was using to 20 compress the shock at that particular time, and 21 so it is a number that is in a vacuum.
22 For those reasons the testimony should be
23 excluded and certainly the exhibit should be
24 excluded.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 129 166 Dr. Shinnick - Voir Dire
1 THE COURT: Again, that is the same thing
2 as your earlier objection dealing with test for
3 the reasons Mr. Ballou said, plus what I said
4 earlier with regard to this being an accident
5 recreation.
6 This particular one deals more with
7 formula as to how to do it plugging in for the
8 purposes of this case what would be an arbitrary
9 figure, and physically the way this is set up is 10 different than the testimony thus far as to how
11 the work or effort was done. Rather than above 12 the shoulder, it was between the waist and the 13 chest is what the testimony was. 14 So, I sustain that objection to 15 Plaintiff's Exhibit Y.
16 Tell me about X.
17 18 BY MR. TOBIN:
19 Q I am showing you what has been marked 20 Plaintiff's Exhibit Letter X. Can you identify that? 21 A Yes. This is an Ergo Plus Ergonomic Job 22 Analysis, and the description is with the palm of the 23 hand compress the lower shock absorber and align with 24 plate.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 130 167
Dr. Shinnick - Voir Dire
1 Q The measurements you took at the time of
2 the site inspection, were they used in developing
3 Plaintiff's Exhibit Letter X?
4 A No.
5 THE COURT: What is it that this exhibit
6 tells us?
7 THE WITNESS: Well, essentially it tells
8 us that with aligning the palm of the hand and
9 compressing the lower shock absorber -- and my
10 experience in this job is that when I am talking
11 about above the shoulder I am talking about at
12 the point where the shock is compressed and it is
13 going to be aligned to the journal cover, and
14 that is at approximately above the shoulder
15 height, and that is where the bolt is then
16 inserted.
17 What this tells us is that there is low
18 back, shoulder potential health effects. The
19 severity of this task is a ten of the severity of
20 zero to ten.
21 THE COURT: I don't understand that. Can
22 you explain that a little bit better for me?
23 THE WITNESS: Yes. This particular
24 program utilizes NIOSH lifting guides, it
CENTRAL VIRGINIA REPORTERS (540) 380-5017 131 168 Dr. Shinnick - Voir Dire
1 utilizes the Snook Liberty Mutual and C. Rogers 2 Biomechanical Analyses.
3 Based on that a severity ratio is 4 calculated for the work task, and in this
5 particular case the body position being, as I 6 explained, the hand right above the shoulder
7 compressing a shock, out of a one to ten the
8 severity ratio would be ten.
9 What it also gives us is a risk priority
10 number. This is a type of analysis that you do
11 in prioritizing what work task needed to be
12 addressed, and this would say out of zero to a
13 hundred this is ranked as 90 so it is a very high
14 priority, and it recommends an action that may be
15 taken. There is also future actions and analysis
16 of those.
17 The occurrence ratio of an injury of this
18 task would be nine out of ten, which is high.
19 THE COURT: So, if you had been hired by a
20 company to come in and look at the work, in this
21 particular case changing the shock of a
22 locomotive, this would be what you would prepare
23 for the company to show them how you went through
24 analyzing the work, what your various ratings
CENTRAL VIRGINIA REPORTERS (540) 380-5017 132 169
Dr. Shinnick - Voir Dire
1 were, and then what your final recommendation IS
2 as to what they ought to do with regard to that
3 job?
4 THE WITNESS: With a priority for
5 addressing that task, yes.
6 THE COURT: What is your objection to
7 this?
8 MR. BALLOU: First of all, the upper.
9 right-hand corner indicates that it is prepared
10 by G.W. Tinsdale and under McMunn it is hearsay.
11 THE COURT: Say that again.
12 MR. BALLOU: The matter is prepared by
13 G.W. Tinsdale, and so under the McMunn versus
14 Tatum decision it would be hearsay as items
15 prepared by someone else that he may be relying
16 upon to render an opinion. He can't come out and
17 put this in here that says
18 THE COURT: My secretary puts her initials
19 at the bottom of letters I dictate, too. You are
20 going to need to find out more about that.
21 If this is prepared by somebody else I
22 agree with you, but I got the impression from Dr.
23 Shinnick that this was --
24
CENTRAL VIRGINIA REPORTERS (540) 380-5017 133 170
Dr. Shinnick - Voir Dire
1 BY MR. BALLOU:
2 Q Dr. Shinnick, this was a computer analysis
3 run by your employee, G.W. Tinsdale?
4 A No, sir. The reason why it says Tinsdale,
5 I did this when I was at Deerborn Assembly utilizing his
6 computer and his program. On mine at my office it says
7 Michael Shinnick.
8 Q You were utilizing Ford Motor Company
9 computer equipment; is that correct?
10 A Yes.
11 Q These are an analysis that is based upon
12 NIOSH guidelines, Snook and Liberty Mutual?
13 A And c. Rogers Biomechanical Model, yes.
14 Q This is what the computer spit out based
15 upon what you put in?
16 A Yes. This is what the computer -- the job
17 was prioritized and analyzed based upon the data --
18 Q That you provided?
19 A -- that I provided, and then the
20 particular this is a biomechanical model then
21 suggested this information, which is something that I use
22 in not only Ford but other industries that I have on my
23 own computer.
24 Q Your reference regarding potential health
CENTRAL VIRGINIA REPORTERS {540) 380-5017 134 171
Dr. Shinnick - Voir Dire
1 effects, is that because you believe that this work
2 process creates the potential that it could cause injury
3 to the low back, shoulder, wrist and arm?
4 A That is what the computer told me. You
5 are asking for my opinion. Based on my analyses,
6 observation of the work task, experience, yes, it does
7 have a risk factor for the low back, shoulder.
8 Q And when you say risk factor you mean the
9 risk of injury?
10 A Yes.
11 Q And the computer recommended mechanical
12 assistance?
13 A Yes. The biomechanical analysis 14 recommended that there be mechanical assistance on this 15 task.
16 THE COURT: Is this a program that you 17 wrote, Doctor? 18 THE WITNESS: No, sir. This is a program
19 that is licensed through Ford Motor Company to me
20 and to others who are licensed. Again, Ford
21 developed it as part of their ergonomics program
22 and n·ow sells, promotes, has a web site on this
23 program, and inculcates as I mentioned NIOSH and
24 Liberty Mutual Snook algorithms which are
CENTRAL VIRGINIA REPORTERS (540} 380-5017 135 172 Dr. Shinnick - Voir Dire
1 biomechanical, C. Rogers biomechanical analysis.
2 So, what I would do as a practitioner is
3 input the body positions of the palm at the
4 shoulder height and compression, and then it
5 would give me a risk priority number and a
6 severity and an occurrence rating.
7 MR. BALLOU: Your Honor, first of all, he
8 is inputting with the wrist of the palm, again
9 which is inconsistent with the testimony that Mr.
10 Simmons and Dowdy said that the wrist is at the
11 chest level. So, the input is incorrect and
12 therefore --
13 THE COURT: He did say sometimes they
14 showed -- one of them stood up and showed himself
15 ducking down below the items to be compressed and
16 pushing upward.
17 MR. BALLOU: But to render the opinion
18 that all of these job actions need mechanical
19 assistance because he inputs the fact that there
20 is a compression up from the shoulder level when
21 that is inconsistent with the testimony that is
22 already in the Record is improper.
23 Second, it is based upon guidelines again
24 that there is no evidence and will be no evidence
CENTRAL VIRGINIA REPORTERS (540) 380-5017 136 173
Dr. Shinnick - Voir Dire
1 are applicable to the railroad, Liberty Mutual
2 Snook, NIOSH and I forget the other that he
3 refers to, and to come up with a recommended
4 change in the procedure based upon guidelines
5 that there is no evidence are applicable to the
6 railroad industry is improper.
7 THE COURT: Well, that still falls back to
8 our basic objection, the basic reasoning that
9 this presupposes something, number one, that is
10 not in here, and you are then asking somebody
11 else to apply their standards to.
12 Dr. Shinnick can do lots of different
13 tests. He may place great weight on this type of
14 test and it might assist him in forming his
15 conclusion. I don't know his process on that,
16 but this is nothing more than raw data he put
17 into a machine and the machine coming back with
18 the answer, and although it may well be something
19 that he could in the back of his mind have looked
20 at and studied that helped him to arrive at his
21 expert conclusion, this is not his result; this
22 is the machine's result, and it starts off with
23 the pressure being placed on the palm at shoulder
24 height level when all of our evidence, with very
CENTRAL VIRGINIA REPORTERS (540) 380-5017 137 174 Dr. Shinnick - Voir Dire
1 little exception -- there was some that showed
2 shoulder height level, but the majority of it was
3 other than shoulder height level also.
4 So, for the reasons Mr. Ballou said and
5 from my earlier statement, I am not going to
6 allow this chart into evidence.
7 That is not to say that Dr. Shinnick may
8 have made an observation and based on his
9 training, education, background and based on
10 whatever else he might have obtained he might
11 reach a conclusion the same or similar to this,
12 but as it now stands this raw data from a
13 computer is not aqmissible.
14 What is the next one?
15 MR. BALLOU: I am not exactly sure what
16 his opinions are going to be now or how they are
17 going to come in.
18 THE COURT: We have separated the Jury so
19 that I, quite frankly, thought that we were going
20 to hear some of his testimony and you were going
21 to make objections and I would rule on them
22 outside the presence of the Jury.
23 Whatever points that you all think you
24 need to go into so we can clear it up, let's do
CENTRAL VIRGINIA REPORTERS (540) 380-5017 "138 175
Dr. Shinnick - Voir Dire
1 it.
2 I don't want to hear all of his testimony
3 right now because I know a great deal of it is
4 admissible, probably 99 percent of it.
5 So, what other areas had you all discussed
6 that you want to go into?
7 MR. BALLOU: I take it though, Judge, that
8 he cannot base his opinions on the forces that he
9 created through compression of the shock. 10 THE COURT: No. You are misunderstanding
11 that. It may well be that when conducting these
12 tests and those tests are not admissible as an 13 accident recreation or reconstruction -- that 14 that could be one/one-thousandths of the input of
15 information that he uses to help him make up his 16 mind and everything else, the other 999 points
17 are from some other area, and the mere fact that 18 he has gotten somebody else to tell him something
19 does not make his expert testimony inadmissible. 20 MR. BALLOU: Judge, I would refer you to
21 the Runion versus Geldner case, 237 Va. 460.
22 THE COURT: Do you have a copy for me to 23 look at?
24 MR. BALLOU: I believe I do, Judge.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 139 176 Dr. Shinnick - Voir Dire
1 THE COURT: He may not testify as to the
2 results of those tests.
3 MR. BALLOU: I will give you a series of
4 Runion cases.
5 THE COURT: Point me to the case that you
6 want me to look at.
7 MR. BALLOU: The Runion case is in there.
8 At page 463, ed. note number one, it says, ~'The
9 results of experiments are not admissible into 10 evidence unless the tests are under conditions
11 which are the same or substantially the same. To
12 base an opinion upon test results that are not
13 the same or substantially the same, however, 14 gives you the same bad results if his opinion is
15 based upon ... " --
16 THE COURT: Where is the case cite for
17 that point? See, that is where you and I are 18 differing. That is what you raised last week in
19 the Motions in Limine, and my position then I
20 don't think has changed any.
21 MR. BALLOU: The Titsworth case, which I
22 also offered to you, says that an expert's
23 opinion needs the fundamental foundation and that
24 to the extent that it's speculative or founded
CENTRAL VIRGINIA REPORTERS {540) 380-5017 140 177
Dr. Shinnick - Voir Dire
1 upon assumptions that have an insufficient
2 factual basis cannot be admitted.
3 THE COURT: I agree with you, absolutely,
4 but that does not mean -- and I believe this was
5 raised last time with regard to subsequent
6 remedial measures -- the fact that Dr. Shinnick
7 has made a study and come to a conclusion and
8 found out in the course of the study that there
9 was such remedial measures, so he uses that to
10 help him make up his mind or he uses a test that
11 is not relevant, if that is just a minor portent
12 of his opinion that can be excluded and he still
13 has the same opinion. It doesn't taint his
14 opinion. His opinion is still admissible.
15 If it cannot be separated and excluded,
16 then you are right.
17 MR. BALLOU: My point -- Judge, I think we
18 are saying the same thing. He can't base his
19 opinion upon tests that factually cannot be
20 supported with respect to how this particular
21 accident occurred.
22 If there are other bases for his opinion,
23 that is fine.
24 THE COURT: If there are other bases --
CENTRAL VIRGINIA REPORTERS {540) 380-5017 141 178 Dr. Shinnick - Voir Dire
1 MR. BALLOU: Then that is fine, we can
2 explore those, but I am asking the Court to
3 exclude the testimony to the extent that it is
4 based upon that.
5 THE COURT: In this particular case on
6 those particular tests I sustain that, but that
7 does not mean that Dr. Shinnick cannot testify as
8 to his opinion as to what he observed and studied
9 and came up with provided it is not based chiefly
10 upon a study that is not admissible because of
11 the variables and we can't tell if it is an exact
12 study or not.
13 MR. BALLOU: I think we are saying the
14 same thing. I would disagree with the term
15 chiefly, but we are saying the same thing; he
16 can't base his opinion upon those studies.
17 THE COURT: I thought that is what we
18 excluded with those charts.
19 MR. BALLOU: And perhaps we are saying the
20 same thing. I had understood the Court that he
21 was going to be able to testify, base his opinion
22 upon the studies notwithstanding the fact
23 THE COURT: He may not base his opinion
24 upon those particular studies, but we are talking
CENTRAL VIRGINIA REPORTERS (540) 380-5017 142 179
Dr. Shinnick - Voir Dire
1 about not all of the opinions -- one of these,
2 Plaintiff's Exhibit Z, that is nothing more than
3 a list of measurements he made or checked on or
4 compared or however these were done on the
5 compression forces necessary to compress
6 something, a shock absorber or whatever, not the
7 one in question here, and we don't know what
8 pressure was used on that and, therefore, none of
9 those numbers in that chart can be used.
10 The same thing applies to the results of
11 Plaintiff's Exhibit Y, but if you look at
12 Plaintiff's Exhibit Y there are things that he
13 certainly has observed in the course of it and
14 they are that it was a shock that they were
15 talking about, the person who did it was a male.
16 And on the other one, there are
17 conclusions that he reaches that he may well be
18 able to reach without the input of the UAW Ford
19 ergonomic process program, and they are that the
20 potential areas can be harmed based on that,
21 based on his studies. I am assuming from his
22 prior testimony in other cases, his studies would
23 be the areas are the back, the hands.
24 Some of this information does not require
CENTRAL VIRGINIA REPORTERS (540) 380-5017 143 180 Dr. Shinnick - Voir Dire
1 the computer input and he can certainly testify
2 to that, but he cannot testify as to the results
3 of any of the three of these.
4 If I messed everything up and got it all
5 confused again --
6 MR. BALLOU: No, sir.
7 THE COURT: All right. Now,· what else on
8 Dr. Shinnick's testimony do you question?
9 MR. BALLOU: I believe that is it, Your
10 Honor. We would renew our objection that it is
11 within the realm of common sense that the Jury
12 can draw their conclusions here based upon the
13 testimony you have now in front of you.
14 THE COURT: That?
15 MR. BALLOU: That an expert is not needed
16 for the Jury to determine the issues of
17 negligence in this case.
18 THE COURT: I·overrule your objection. We
19 have had discussions about medical injuries,
20 treatment. Those people certainly are experts.
21 As far as I understand Dr. Shinnick's
22 testimony of what it is proposed to be, from what
23 the lawyers have told me, what I went through in
24 the Motions in Limine, it appears, from this
CENTRAL VIRGINIA REPORTERS (540) 380-5017 144 181
Dr. Shinnick - Voir Dire
1 stage anyhow, relevant and it appears to be
2 something that would help the Jury.
3 I have to admit I haven't heard his
4 particular testimony in this particular case and
5 I am basing it on what you all have told me in
6 weeks past what his testimony will be.
7 MR. BALLOU: Thank you, Your Honor.
8 THE COURT: Before we call the Jury in,
9 are there any other areas of Dr. Shinnick's
10 testimony that you want to go over?
11 MR. BALLOU: No, Your Honor.
12 THE COURT: Do we have a clean copy of his
13 curriculum vitae?
14 MR. TOBIN: Yes, Your Honor.
15 THE COURT: Let me mark that Plaintiff's
16 Exhibit Number 5.
17
18 (The above-mentioned document was marked
19 Plaintiff's Exhibit Number 5 and was
20 entered into the deposition.)
21
22 THE COURT: Are we ready to call the Jury
23 back?
24 MR. TOBIN: Yes, Your Honor.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 145 182 Dr. Shinnick - Voir Dire
1
2 (The Jury returned to the Open Courtroom.)
3
4 THE COURT: Ladies and gentlemen, I think
5 we have speeded up the process here today and
6 hopefully we are not just putting you through a
7 bunch of exercises running back and forth to the
8 jury room.
9 Please go ahead.
10 MR. TOBIN: Your Honor, I would at this
11 time request permission to examine Dr. Shinnick
12 as an ergonomic and a vocational expert.
13 THE COURT: Did you have any points you
14 wanted to raise at this stage?
15 MR. BALLOU: Nothing further other than
16 what we have already discussed.
17 THE COURT: I find that Dr. Shinnick is an
18 expert in the work injury management area, which
19 area includes ergonomics and vocational
20 rehabilitation and he can give expert opinion
21 testimony in those areas subject to all the prior
22 discussions and rulings of the Court.
23
24 DIRECT EXAMINATION (Continued)
CENTRAL VIRGINIA REPORTERS (540) 380-5017 146 183
Dr. Shinnick - Direct
1
2 BY MR. TOBIN:
3 Q Have you had occasion to prepare an
4 ergonomic analysis regarding Ron Bowles' railroad
5 accident of June 23, 1993?
6 A I have prepared an analysis of the work
7 tasks that he was involved in.
8 Q Can you explain what that analysis
9 involved or what an ergonomic analysis is?
10 A Yes. It is observing the task. First of
11 all, I looked at the reports and depositions and talked
12 with Mr. Bowles about the work tasks, learned as much as
13 I could about what was required in compressing a shock
14 and aligning it with a journal cover, and then I went to
15 the work site and I video'd and took photographs of the
16 work site.
17 I actually performed the task of
18 compressing the shock to the journal cover and inserting
19 a bolt through the shock bracket into the journal cover
20 plate.
21 Q Can you tell us specifically or tell the
22 Jury what materials you have reviewed? Can you identify
23 the materials that you have reviewed?
24 A Yes. I reviewed Mr. Bowles' deposition, I
CENTRAL VIRGINIA REPORTERS (540) 380-5017 147 184 Dr. Shinnick - Direct
1 reviewed the statements of Mr. Simmons and Mr. Bonds,
2 along with their depositions that occurred later of Mr.
3 Simmons, Mr. Bonds and a deposition of Mr. Dowdy. He was
4 also a coworker.
5 I reviewed the accident report, which was
6 the specific incident Mr. Bowles was involved in in
7 compressing the shock. I reviewed the Employee Personnel
8 Injury report, I reviewed memorandums from the Shaffers
9 Crossing shop.
10 MR. BALLOU: Your Honor, this is at a time
11 period we have already discussed, the
12 memorandum.
13
14 BY MR. TOBIN:
15 Q What additional material have you
16 reviewed?
17 A The Mechanical Department Personal Injury
18 Investigation report, and copies of the shock that was
19 provided by the railroad, and those are essentially the
20 documents that I reviewed plus the interview with Mr.
21 Bowles.
22 Q Are the opinions that you are about to
23 express here today based on the review of those
24 materials, your examination of the job site and your
CENTRAL VIRGINIA REPORTERS (540) 380-5017 148 185
Dr. Shinnick - Direct
1 discussions with Mr. Bowles?
2 A Yes.
3 Q In making your computations and analysis
4 did you use lifting guidelines?
5 A No, I did not. This was not a lifting
6 task. It was a task of compressing which would not be
7 appropriate for lifting guidelines. It's more of what we
8 would call a biomechanical analysis that was required
9 because one was pressing upward.
10 Q You mentioned that you conducted a job
11 site inspection?
12 A Yes, sir, I did.
13 Q In connection with the job site inspection
14 did you produce a video?
15 A Yes. I video•d the work task or had it
16 video'd of myself performing it so that I could
17 experience the similar work task.
18 MR. BALLOU: Your Honor, we are at a point
19 where we have already discussed this testimony.
20 THE COURT: He won•t be able to testify as
21 to an experiment that he performed.
22
23 BY MR. TOBIN:
24 Q Would this video assist you in explaining
CENTRAL VIRGINIA REPORTERS (540) 380-5017 149 186
Dr. Shinnick - Direct
1 to the Jury --
2 THE COURT: Let me stop. You all have
3 discussed this video?
4 MR. BALLOU: Your Honor, until the Court
5 ruled earlier I didn't know whether the video
6 would be relevant or not. I think it is now not
7 relevant given the Court's rulings.
8 MR. TOBIN: I think it is relevant for
9 demonstrative purposes. There is no testing
10 being done.
11 THE COURT: It is a three or four minute
12 video?
13 MR. TOBIN: Yes, Your Honor.
14 THE WITNESS: It is slightly over three
15 minutes.
16 THE COURT: I will look at the video
17 before we decide whether or not it is
18 admissible.
19 I certainly promise you this case isn't
20 going to go like this all the time. For right
21 now if you would go with the sheriff, I will look
22 at the video and decide.
23
24 (The Jury was excused from the
CENTRAL VIRGINIA REPORTERS (540) 380-5017 150 187 Dr. Shinnick - Direct
1 Open Courtroom.)
2
3 THE COURT: Now the Jury is outside the
4 room. Tell me the purpose of presenting the
5 video to the Jury.
6 MR. TOBIN: Just for demonstrative
7 purposes to show the Jury the task Ron was
8 performing at the time he got hurt.
9 THE COURT: Let's play it and let me look
10 at it.
11
12 (The videotape was played
13 for the Court and Opposing counsel
14 as the Witness testified as follows.)
15
16 THE WITNESS: This is the journal cover
17 and the bolts. At this point they are explaining
18 how these bolts are·removed by an impact gun and
19 a longer bolt is inserted at the top of the
20 journal cover.
21 The journal cover is turned upward and the
22 bolt is inserted so that it doesn't have to be
23 taken off.
24 THE COURT: Is that something that is
CENTRAL VIRGINIA REPORTERS (540) 380-5017 151 188 Dr. Shinnick - Direct
1 underneath the plate, that round piece that says
2 Hyatt?
3 THE WITNESS: Yes, sir. There is a shock 4 and the shock bracket. This is why I think this
5 is important to understand what I am referring to
6 when I say where the hand was in looking at this
7 work task.
8 We are now explaining how the journal
9 cover would be turned upward and suspended, and
10 momentarily be compressing a shock. This is the
11 position that -- this is the shock and the shock
12 plate, and I am now going to remove the shock
13 plate and the shock is held up by a bolt.
14 This gets clearer in a minute.
15 All right. Lowering the shock, and as the
16 witnesses have said it does start at this point,
17 and in compression of the shock it is the plate,
18 the shock bracket is then aligned at this point
19 to the journal cover.
20 Again, this is another position of moving
21 this toward the journal cover and then at this
22 point be reaching and getting a bolt and putting
23 it through the shock bracket into the cover.
24 This particular shock and a number of the
CENTRAL VIRGINIA REPORTERS (540) 380-5017 152 189
Dr. Shinnick - Direct
1 shock brackets have a retainer or spacer, and the
2 particular one that I measured had a bolt and a
3 spacer.
4 And this is where the position that I am
5 talking about that I believe the witnesses
6 verified that when it is being placed, the shock
7 bracket onto the journal cover, then it is at a
8 position where the hand is up right at the
9 shoulder height, and either the right hand or the
10 other hand is threading the bolt into the journal
11 cover.
12 THE COURT: Your objection -- let's go
13 ahead.
14 THE WITNESS: I think that essentially
15 demonstrates the work process as I saw it and
16 reviewed it, and what I did was analyze the work
17 task of placing the shock bracket on the journal
18 cover.
19 THE COURT: Your objection? 20 MR. BALLOU: It is Dr. Shinnick's
21 recreation of compressing a shock absorber that
22 is on a -- it is a different shock absorber, it
23 is a different type of locomotive.
24 The witnesses have testified about the
CENTRAL VIRGINIA REPORTERS (540) 380-5017 153 190 Dr. Shinnick - Direct
1 work being in the chest area, and it allows Dr.
2 Shinnick essentially to try to recreate his
3 understanding of this work task.
4 And to the extent that that is not what
5 Ron Bowles was doing at the time that he claims
6 to have been injured, it does not demonstrate to
7 the Jury whether the railroad was or was not
8 negligent ..
9 THE COURT: Do you want to reply to that?
10 MR. TOBIN: This was a video produced at
11 the time of the on-site inspection. We are not
12 going to produce it for the fact that he was
13 doing exactly this, but just to give the Jury
14 some idea as to what he was doing at the time of
15 the accident.
16 THE COURT: I agree with Mr. Ballou that
17 the witnesses who have testified and the large
18 photographs you have, especially Exhibit Number 2
19 that the reference was made to mostly, but I
20 think 1, 3 and 4 also show that similar area, and
21 we have had a demonstration of the manner in
22 which this is done by the witnesses, some of whom
23 stood up and showed how they would make their
24 pressure and how they would push and explained in
CENTRAL VIRGINIA REPORTERS (540) 380-5017 154 191
Dr. Shinnick - Direct
1 detail the job that was being done.
2 I think this video is nothing more than
3 another recreation of something we have already
4 heard, and I understand that the exhibits that
5 you have are exhibits of the identical style,
6 exact type of railroad locomotive.
7 MR. BALLOU: It is actually the locomotive
8 he was working on, Your Honor.
9 THE COURT: All right. This is something
10 different. This falls more within the range of
11 an experiment.
12 I will have to admit that if we had no
13 testimony as to how this work was being done or
14 the task was so complicated that we had no other
15 way to show the manner in which the work was
16 being done and I don't mean for test purposes,
17 but I mean to demonstrate what it is you are
18 talking about, then something like this may well
19 be admissible, but in this particular case after
20 having heard the evidence we have heard I am
21 going to exclude this.
22 I will mark your tape as the Court's
23 exhibit though refusing it.
24 MR. TOBIN: W?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 155 192 Dr. Shinnick - Direct
1 THE COURT: Yes.
2
3 (The above-mentioned videotape was marked 4 Exhibit Letter Wand was refused.)
5
6 MR. TOBIN: Could I ask him to demonstrate 7 his understanding as to what Ron was doing at the
8 time of the accident using these photographs
9 then?
10 THE COURT: I am not sure. You may well
11 be able to. It certainly makes sense to me that
12 in trying to understand the mechanics and the
13 method of conducting the work that an expert
14 ergonomist would either picture in his mind what
15 occurred or he'd actually himself undergo some of
16 those tasks in order to feel and see which
17 portion of the body is affected by this
18 movement.
19 Show me what you are talking about.
20
21 BY MR. TOBIN:
22 Q If I were just to ask you, Dr. Shinnick,
23 based upon your review of those materials, using
24 Plaintiff's Exhibits 1, 2, 3 or 4, can you demonstrate to
CENTRAL VIRGINIA REPORTERS (540) 380-5017 156 193
Dr. Shinnick - Direct
1 the Jury your understanding as to what Ron Bowles was
2 doing at the time of the accident?
3 A I can explain the work process, yes, that
4 Ron Bowles was involved in, and these are the photographs
5 of the exact locomotive that he was injured in
6 compressing the shocks.
7 MR. TOBIN: Then I would ask him to
8 demonstrate that using --
9 THE COURT: Show me the demonstration.
10 Let me see what you are talking about.
11 THE WITNESS: It was important for me to
12 understand the work process and the body
13 mechanics involved in placing the shock bracket.
14 The first step as you know is compressing
15 the shock, the second is aligning the shock
16 bracket with these four bolts with the journal
17 cover and there are four holes.
18 At the point of alignment then it requires
19 the worker to hold the shock bracket at
20 approximately this point and with the other hand
21 grasp a bolt and hand thread it into one of the
22 bracket bolts.
23 At that point the shock absorber and
24 bracket are hand secured. Then the next three
CENTRAL VIRGINIA REPORTERS (540) 380-5017 157 194 Dr. Shinnick - Direct
1 bolts are hand started into the journal cover 2 holes.
3 So, essentially what these photographs do 4 is certainly this -- Mr. Bowles talking you
5 through the work task and by performing the work
6 has given me an idea of what the body mechanics
7 are involved in the work process.
8 THE COURT: I think his performing the
9 work is just part of his testing and that is
10 certainly reasonable and he can testify to the
11 Jury.
12 I don't think that the video is necessary,
13 and as far as what he has just testified to, his
14 testimony is simply explaining the work process
15 and he is not -- when you use the word
16 demonstrate, his is not a demonstration of once
17 he put his hand up to his chest to push it is
18 not a demonstration rather than it is an
19 explanation and that is admissible.
20 It's an explanation as to what it was that
21 he studied. He studied this particular work
22 process and then has some sort of conclusion as a
23 result of his study. That is different than presenting some sort of test or experiment or
CENTRAL VIRGINIA REPORTERS (540) 380-5017 158 195
Dr. Shinnick - Direct
1 recreation of the accident or injury.
2 I am not sure that I understand totally
3 the objection, but if it was he ought not to be
4 able to demonstrate this and what I have just
5 seen is what the Plaintiff presents as a
6 demonstration, it didn't look like a
7 demonstration to me but rather it was just plain
8 testimony. He had to move his hand once or twice
9 and I don't see that as an experiment.
10 If he were to testify like that during the
11 trial I would not find that reason to exclude any
12 portion of that testimony.
13 MR. BALLOU: Very well, Your Honor. 14 THE COURT: Any other points in Dr.
15 Shinnick's testimony?
16 MR. TOBIN: I don't think so.
17 THE COURT: We are now at 4:24 or
18 something like that. You guess his testimony
19 from Direct will be about how long?
20 MR. TOBIN: Forty-five minutes.
21 THE COURT: The Cross would be about how
22 long?
23 MR. BALLOU: Twenty minutes or so. 24 THE CqURT: Then if we don't have a whole
CENTRAL VIRGINIA REPORTERS (540) 380-5017 159 196 Dr. Shinnick - Direct
1 lot of objections we can certainly finish this. 2 I don't know what it is like outside, but 3 if it is getting colder the roads start to freeze 4 and we had such complaints from the Jury getting
5 them in today already, so I would like to get
6 them out of here at a reasonable time tonight.
7 MR. TOBIN: We have another witness that
8 is here, Dr. v.idmey=r. We might call him out of
9 turn and then present Dr. Shinnick in the
10 morning.
11 THE COURT: However you all want to do
12 that.
13 MR. BALLOU: I have no objection.
14 MR. TOBIN: Can we have about five or ten
15 minutes?
16 THE COURT: All right. I would like to
17 get one more witness complete before we quit
18 today.
19
20 (A recess was taken off the Record.)
21
22 THE COURT: Are we ready for the Jury?
23 MR. TOBIN: Yes.
24 THE COURT: This video I have marked
CENTRAL VIRGINIA REPORTERS (540) 380-5017 160 197
Dr. Shinnick - Direct
1 Plaintiff's Exhibit W refused.
2 MR. FERRIS: I am not sure Greg noted his
3 exception to the ruling.
4 THE COURT: I understood you all excepted
5 for the reasons you stated in Court on each of
6 the exhibits refused.
7
8 (The Witness was excused
9 from the Witness Stand.)
10
11 (The Jury returned to the Courtroom.)
12
13 THE COURT: Ladies and gentlemen, because
14 of the time limitations today the Plaintiff has
15 chosen to remove Dr. Shinnick at this time. He
16 may well be back later on to testify. They are
17 going to call their next witness.
18 During the break I checked on the question
19 you asked. The answer is no, you can't get
20 mileage between here and the jury room.
21 Go ahead and call your next witness.
22 MR. TOBIN: The Plaintiff at this time
23 would call Dr. Robert Widmeyer to the stand.
24 ROBERT WIDMEYER, M.D.,
CENTRAL VIRGINIA REPORTERS (540) 380-5017 1R1 213 Dr. Widmeyer - Direct
1 A I think it was partly responsible for the
2 disc injury.
3 Q Dr. Widmeyer, do you have an opinion based
4 upon a reasonable degree of medical certainty as to
5 whether Ron Bowles' railroad accident of June 23, 1993,
6 aggravated the preexisting condition in his lumbar spine?
7 A I don't think there is any question about
8 that; that is what the problem was.
9 Q Do you have an opinion based upon a
10 reasonable degree of medical certainty as to whether Ron
11 Bowles• railroad accident of June 23, 1993, caused his
12 lumbar spine condition to become symptomatic?
13 A It did.
14 Q Do you have an opinion based upon a
15 reasonable degree of medical certainty as to whether Ron
16 Bowles• railroad accident of June 23, 1993, caused or
17 necessitated in whole or in part his laminectomy and
18 diskectomy surgery of January 1996?
19 A It did.
20 Q Do you have an opinion based upon a
21 reasonable degree of medical certainty as to whether Ron
22 Bowles suffers from a permanent condition in his lumbar
23 spine?
!-- 24 A He does.
CENTRAL VIRGINIA REPORTERS (540) 380-5017 162 214
Dr. Widmeyer - Direct
1 Q ·Do you have an opinion based upon a
2 reasonable degree o~ medical certainty as to whether Ron
3 Bowles suffers from permanent impairment in his lumbar
4 spine?
5 A He does.
6 Q And do you have an opinion based upon a
7 reasonable degree of medical certainty as to whether Ron
8 Bowles suffers from a permanent disability in his lumbar
9 spine?
10 A He does.
11 Q Do you have an opinion based upon a
12 reasonable degree of medical certainty as to whether Ron
13 Bowles has in the past and will in the future incur pain
14 and suffering as a result of his June 23, 1993, accident?
15 A He will.
16 Q Do you have an opinion based upon a
17 reasonable degree of medical certainty as to whether Ron
18 Bowles suffers from chronic pain in whole or in part as a
19 result of this railroad accident on June 23, 1993?
20 A He does.
21 Q Do you have an opinion based upon a
22 reasonable degree of medical certainty as to whether Ron
23 Bowles is medically disabled from returning to railroad
24 employment as a machinist?
CENTRAL VIRGINIA REPORTERS (540) 380-5017 163 215 Dr. Widmeyer - Direct
'
1 MR. BALLOU: Objection to foundation, Your 2 Honor.
3 THE COURT: I am not sure I understand
4 your objection.
5 MR. BALLOU: There is no indication that
6 Dr. Widmeyer knows all the different job
7 responsibilities of what a machinist does.
6 THE COURT: You do have to lay a
9 foundation. Dr. Widmeyer has testified to his
10 treatment and surgery, nothing more. So, you
11 would have to show that he knows what the type of
12 work is that he would go back to and so on.
13
14 BY MR. TOBIN:
15 Q Dr. Widmeyer, I want you to assume that
16 the job duties of a railroad machinist are in the heavy
17 exertional level as defined by the Department of Labor
18 guidelines.
19 Do you have an opinion based upon a
20 reasonable degree of medical certainty as to whether Ron
21 Bowles is medically disabled from returning to railroad
22 employment as a machinist?
23 MR. BALLOU: Objection. No foundation for
24 that, Your Honor, for the assumptions. ~
CENTRAL VIRGINIA REPORTERS (540) 380-5017 164 216
Dr. Widmeyer - Direct
1 THE COURT: Based on a hypothetical
2 question and you want him to assume that he is
3 talking about returning to heavy labor, that is
4 different than asking whether or not he can
5 return to the railroad as a machinist. You are
6 asking him to assume something that is not in
7 evidence when you say a machinist does heavy
8 labor.
9 You can ask him if he understands what it
10 is a machinist does, how that work is, and he can
11 give his opinion on it or he can give his opinion
12 to the hypothetical you just asked.
13 THE WITNESS: Would it help if I told you
14 what his restrictions are?
15
16 BY MR. TOBIN:
17 Q Why don't you first tell us what his
18 restrictions are.
19 A Because of the problems that he has he
20 can't do any activity that requires prolonged sitting,
21 standing or walking. People who have back problems have
22 to be able to change positions whenever they need to and
23 it is different on different days. On a good day they
24 can do more, on a bad day sometimes they can't get out of
CENTRAL VIRGINIA REPORTERS (540) 380-5017 165 217 Dr. Widmeyer - Direct
1 bed. Usually they have to lie down on a break to unload
2 their spine because sitting doesn't help when your back
3 hurts.
4 He can't do activities that require any
5 kind of heavy or repeated lifting, twisting and bending.
6 Q Is it your understanding that the job of
7 machinist would require heavy bending, lifting or
8 twisting?
9 A Yes.
10 Q Do you have an opinion based upon a
11 reasonable degree of medical certainty as to whether Ron
12 Bowles is medically disabled from returning to railroad
13 employment as a machinist?
14 A If it involves what we just talked about,
15 he can't do that.
16 Q With regard to future medical treatment,
17 is it your opinion that Ron may require future medical
18 treatment and, if so, what kind?
19 A Hopefully, he has ruptured his last disc.
20 Certainly four is enough, but you never know.
21 Statistically he probably won't do that again.
22 As you get older you get less likely to
23 actually explode one, but it does happen. Most of the
24 time when people have problems like this they have
CENTRAL VIRGINIA REPORTERS (540} 380-5017 166 OR~GINAL V I R G I N I A:
IN THE CIRCUIT COURT FOR
CITY OF ROANOKE
RONALD L. BOWLES,
Plaintiff
-vs- CL-97-825
NORFOLK AND WESTERN RAILWAY COMPANY,
Defendant
VOLUME II
MARCH 10, 1999 9:30 A.M.
HEARD BEFORE THE HONORABLE:
ROBERT P. DOHERTY, JR.
P. 0. Box 12628 Roanoke, Virginia 24027
CENTRAL VIRGINIA REPORTERS (540)380-5017 167 2
1 APPEARANCES: 2 PRATT & TOBIN, ESQS. 3 East Alton, Illinois BY: GREGORY M. TOBIN, ESQ. 4 RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN, ESQS. 5 Roanoke, Virginia BY: RAPHAEL E. FERRIS, ESQ. 6 Counsel on Behalf of Plaintiff
7 JOHNSON, AYERS & MATTHEWS, ESQS. 8 Roanoke, Virginia BY: ROBERT S. BALLOU, ESQ. 9 Counsel on Behalf of Defendant 10
11
12 I N D E X 13 Witness Direct Cross Redirect Recross 14 Michael D. Shinnick 9 42 58 William E. Cobb 59 78 15 Ronald R. Bowles 112 181 215 Susan Diane Bowles 216 16 Plaintiff Rests 233 Ward W. Stevens 254 270 289 291 17
18 E X H I B I T S No. Description 19 For the Court: 2 Roanoke Orthopedic Center Report 8 20 3 Roanoke Imaging Center MRI Report 8
21 For the Plaintiff: 6 Present Value After Tax Loss Chart 93 22 10 Personal Injury Report 130
23 For the Defendant: A Articles of Incorporation of Star City Cruisers 212 24
CENTRAL VIRGINIA REPORTERS (540)380-5017 168 9 Shinnick - Direct
1 any of you see or hear anything about this case,
2 on the radio or television or newspapers or from
3 any other source overnight?
4 THE JURY: No.
5 THE COURT: Did anybody contact you about
6 this case?
7 THE JURY: No.
8 THE COURT: All right, thank you. Are you
9 ready to call your next witness, Mr. Tobin?
10 MR. TOBIN: Yes, sir; the plaintiff at this
11 time would call Doctor Michael Shinnick to the
12 stand.
13
14 MICHAEL D. SHINNICK
15 was called as a witness and after having first been duly
16 sworn to tell the truth, the whole truth, and nothing but
17 the truth, was examined and testified as follows:
18
19 EXAMINATION
20
21 BY MR. TOBIN:
22 Q Would you state your name, please?
23 A Michael D. Shinnick.
24 Q Doctor Shinnick, you have been qualified by
CENTRAL VIRGINIA REPORTERS (540)380-5017 169 10 Shinnick - Direct
1 the Court as an expert in the field of ergonomics and
2 vocational assessment and I would like to ask you a few
3 questions in that regard today, okay?
4 A Yes, sir.
5 Q Regarding Ron Bowles, it's my understanding 6 you conducted a job site inspection?
7 A Yes, I conducted an inspection of the work
8 task of compressing shocks on a locomotive.
9 Q And what is the purpose of doing a work
10 task assessment at the job site?
11 A The purpose is for, and Mr. Bowles was
12 there to explain the process to me and then I performed
13 the work process, and the purpose of that was for me to
14 understand the requirements, physical requirements of
15 grasping the shock, the kind of perches that you would use
16 with your hands, the process of pushing the shock absorber
17 and bracket up and then into the journal cap, and then at
18 that point the process of holding it static with one hand,
19 grasping a bolt, putting the bolt through the shock
20 bracket and into the journal cap and then hand start the
21 bolt, and then of course securing the other three bolts
22 with a three quarter inch pneumatic air gun.
23 Q In addition to doing a job site inspection,
24 did you review some materials?
CENTRAL VIRGINIA REPORTERS (540)380-5017 170 11 Shinnick - Direct
1 A Yes, I did.
2 Q And can you identify what materials were
3 reviewed?
4 A Yes, I reviewed Mr. Bowles deposition,
5 I reviewed the witness statements of Jim Simmons,
6 Jeremy Bonds, I reviewed the accident report, the personal
7 injury report, the railroad investigative report, an
8 employee personal injury report, I also reviewed the
9 mechanical department personal injury investigation and I
10 reviewed some copies of photographs that were taken of the
11 shock and I also reviewed the depositions of Jim Simmons,
12 Jeremy Bonds and William Dowdy.
13 Q The opinions you express today, what are
14 they based upon?
15 A They are based on my work task analysis,
16 the review of the material I just mentioned, my education,
17 training and experience, and my experience not only with
18 this Shaffers Crossing shock compression work task, but my
19 experience and observations at other railroads such as
20 CSX, Union Pacific, Amtrak and Conrail in which I have
21 analyzed similar tasks or machinists duties which would
22 include shock compression.
23 Q And additionally have you done work task
24 analysis for other major industries?
CENTRAL VIRGINIA REPORTERS (540)380-5017 171 12 Shinnick - Direct
1 A Yes.
2 Q Did you rely on that experience?
3 A Yes, I have and do. I've done similar type
4 work of analyzing jobs, assessing the hazards, potential
5 hazards of work task for Ford Motor Company, General
6 Motors, Abbott Labs, Roadway Express, I've also done
7 similar types of activities with Bowing Aircraft and the
8 American Pathology Association in assessing the lab test
9 procedures, and all these experiences and consulting that
10 I do has to do with analyzing the work task, assessing
11 potential hazards and the methodology of the work task and
12 reducing a potential for work injury if it does exist.
13 Q Is that the goal of the work task study, to
14 reduce the possibility of injury?
15 A Well, it would be to identify what the
16 potential hazard is for injury, if any. If there is a
17 hazard then the goal would be for the reduction or
18 elimination of the probability of injury on that
19 particular work task.
20 Q And so then is it important for you to
21 understand the work task being conducted?
22 A Yes, it is.
23 Q Based on your review of the materials you
24 have identified and the photographs we have in evidence,
CENTRAL VIRGINIA.EEPORTERS (540)380-5017 172 13 Shinnick - Direct
1 can you explain the work task that Ron Bowles was
2 performing at the time of the accident?
3 A Yes, sir.
4 Q And would those photographs assist you in
5 doing that?
6 A It probably would. I have a reference.
7 MR. TOBIN: Those photographs were put in
8 evidence and I don't see them.
9 MR. FERRIS: Exhibits One through Four.
10 THE COURT: They would be big poster board
11 size.
12 MR. FERRIS: Probably back here in the
13 corner.
14 MR. TOBIN: Those were admitted yesterday I
15 believe, weren't they?
16 THE COURT: How about behind those ones on
17 the wall over there?
18 MR. FERRIS: We did not take them out of
19 the Courtroom, Your Honor, because they were in
20 evidence.
21 THE COURT: Check in the evidence in the
22 back and see if they put it there.
23 THE CLERK: She said that you all had them
24 yesterday and she left them with you.
CENTRAL VIRGINIA REPORTERS (540)380-5017
1~~ 14 Shinnick - Direct
1 MR. TOBIN: Oh they are in between the 2 two.
3
4 BY MR. TOBIN:
5 Q Doctor Shinnick, I am showing you what's
6 been marked Plaintiff's Exhibits One through Four. Using
7 those exhibits, can you explain the work task that
8 Ron Bowles was performing at the time of his injury?
9 A Yes. The work task of compressing a shock
10 absorber on a locomotive, and I might say there is two
11 basic locomotives. There is an EMD and a GE. EMD is
12 Electric Motor Division and, of course, GE is a General
13 Electric. Essentially locomotives weigh between 287,000
14 to 400,000 pounds. Their configuration is, no matter what
15 the model, that there is four shocks on a locomotive.
16 These shocks are connected to what we call
17 the side frame. This is the locomotive wheel right here
18 and the process of-- and I think this is probably the best
19 photograph. The purpose of taking off the shock is in
20 order to regrind the locomotive wheel. They get out of
21 round and so forth so they bring them into the shop and in
22 order to regrind the wheel the machinist is required to,
23 as I have mentioned, take a three quarter inch drive,
24 hydraulic gun or pneumatic gun, air operated, remove these
CENTRAL VIRGINIA REPORTERS (540)380-5017 174 15 Shinnick - Direct
1 four bolts, lift the shock up and out of the way, support
2 the shock, and the purpose of getting the shock out of the
3 way is then to get to the journal cover which is
4 essentially the cover that covers the bearings on the axle
5 for the locomotive wheel.
6 The locomotive wheel is then reground and
7 the locomotive is pulled ahead and then the shock is
8 replaced on to the journal cover. The process of
9 replacing it requires that the journal cover be placed
10 back over the axle and then the shock is lowered into
11 position and essentially we have this bracket that is
12 connected to the shock absorber and the operator has to,
13 or the worker has to compress the shock.
14 Now, to give you an idea, some of these
15 shocks are set up-- they are set up differently, but some
16 of them are set up for different pounds of compression and
17 rebound and the shock is designed to minimize the lateral
18 sway of the locomotive. On most of them it•s
19 approximately 1,200 pounds of rebound.
20 MR. BALLOU: I object at this point in
21 time, we are talking about a generality to the
22 extent that testimony should apply to this
23 particular shock that the plaintiff was working on
24 at the time.
CENTRAL VIRGINIA REPORTERS (540)380-5017 175 16 Shinnick - Direct
1 THE COURT: Your response to that?
2 MR. TOBIN: I think it's important that he
3 understand the task he was doing to reach his
4 conclusion. That is the basis for his conclusion
5 and that is why I want him to develop it.
6 THE COURT: I don't have any problem with
7 what he understood, but I agree with the
8 objection, that we are talking about a particular
9 shock that the plaintiff was working on at the
10 time and so I sustain the objection, you can't go
11 into any testing or what the average shock is or
12 what this particular one he checked was.
13 THE WITNESS: This is dated by the
14 manufacturer.
15 THE COURT: You can't go into that.
16
17 BY MR. TOBIN:
18 Q Continue.
19 A So the machinist in replacing the shock
20 then would be in a pit, the wheel would be approximately
21 at this height, the shock would be lowered down, when it
22 comes down the way the work process was done at Shaffers
23 Crossing the worker would grasp the shock bracket, and he
24 could do that with two hands, and the way it was done, and
CENTRAL VIRGINIA REPORTERS (540)380-5017 176 17 Shinnick - Direct
1 Mr. Bowles had trained most of the people who did it, is
2 you would use the strongest muscles in your body, which is
3 your quadriceps, you would get underneath it, push up,
4 when it's at this heighth then you would have to change
5 positions and then push up to the journal cover, and here
6 is the tricky part, while compressing the shock one has to
7 start a bolt, and that means you have two hands on the
8 shock, you get it into position and you have to push in so
9 you can line up the holes on the shock bracket, and while
10 you're pushing in you have to hold with one hand static
11 holding, reach for a bolt and then align the bolt-- well,
12 align the shock bracket to the journal cover and hand
13 start that bolt. That was the method that was utilized at
14 Shaffers Crossing on shocks.
15 Now some of the shock absorbers had an
16 additional variable and that was there was a--
17 MR. BALLOU: Your Honor, I object again at
18 this point in time.
19 THE COURT: I sustain about that when we
20 talk about some other type of shock absorber.
21 MR. TOBIN: Thank you.
22
23 BY MR. TOBIN:
24 Q Doctor Shinnick, do you have an opinion
CENTRAL VIRGINIA REPORTERS (540)380-5017 177 18 Shinnick - Direct
1 based upon a reasonable degree of professional certainty
2 as to whether this procedure used by the railroad to
3 compress shocks manually was unsafe?
4 A Yes, I do.
5 Q And what is that opinion?
6 A As their work task was performed at
7 Shaffers Crossing the work task was unsafe and had a
8 potential for injury.
9 Q Why do you think it was unsafe?
10 A Because it was manually compressed and the
11 compression could have been done as similar operations in
12 other railroads by a mechanical device.
13 MR. BALLOU: I object.
14 THE COURT: I sustain that objection and
15 direct the jury not to pay attention to that last
16 answer.
17 THE COURT: Let me take a brief recess
18 before we go forward on this. .I need the court
19 reporter.
20 (Court and Counsel left the Open
21 Courtroom.)
22
23 THE COURT: We went over a lot of this
24 stuff yesterday and I think last week, but I have
CENTRAL VIRGINIA REPORTERS (540)380-5017 178 19 Shinnick - Direct
1 forgotten some of the things we said last week,
2 but yesterday and especially yesterday afternoon
3 when we dealt with those big exhibits we went into
4 great detail into what Doctor Shinnick could
5 testify and what he couldn't, and to have him
6 attempt to testify to the things that have been
7 already ruled on is simply going to cause a
8 problem and this is like the second or third time
9 here right in a row that he has attempted to
10 testify to something that we have got--
11 MR. TOBIN: I was trying to keep him
12 controlled. It wasn't really responsive to what I
13 was asking him. I didn't know that that was going
14 do elicit that--
15 THE COURT: Well, would it help if we took
16 a couple minutes, send the jury out of the room
17 and you step outside with Doctor Shinnick and go
18 back over some of this stuff because, you know, if
19 he says one or two or five times the wrong thing
20 and I have to stop and tell the jury to ignore it
21 and get by with it if I said it 100 times, you
22 would be in a mistrial situation, and somewhere
23 between a hundred and however many he has done it
24 already that line is drawn and I don't know where
CENTRAL VIRGINIA REPORTERS (540)380-5017 179 20 Shinnick - Direct
1 it is.
2 MR. TOBIN: I just have a couple questions
3 left.
4 MR. BALLOU: What opinion are you trying to
5 get?
6 MR. TOBIN: I was going to ask do you have
7 an opinion based upon a reasonable degree of
8 professional certainty as to whether a mechanical
9 device should have been employed, and then the
10 last question was whether the railroad was on
11 notice that this procedure was unsafe.
12 MR. BALLOU: We will object to the notice
13 question, he can't render an opinion on that.
14 THE COURT: He doesn't know anything about
15 the notice other than what somebody else told
16 him.
17 MR. TOBIN: Whether they should have been
18 on notice ..
19 THE COURT: You have already got in
20 evidence all these people standing up and saying
21 we jumped up in safety meetings and told them
22 that, and unless you go through this long drawn
23 procedure it's really difficult and time consuming
24 to show that, and I don't know how--
CENTRAL VIRGINIA REPORTERS (540)380-5017 180 21 Shinnick - Direct
1 MR. TOBIN: In doing that I might get in to
2 some areas I don't want to get in.
3 THE COURT: But an example would be that
4 was printed in all the railroad magazines and
5 N & W was a subscriber to it and it said you got
6 to have two people doing it or mechanical or
7 something, and it takes us two days to put on the
8 evidence to show that they were signatories to
9 this and somebody went to that meeting when they
10 talked about it or whatever.
11 MR. TOBIN: I'll just have as a follow up
12 question on the basis of his opinion of why it was
13 unsafe and then ask him the mechanical device
14 question and then that will be it, that way we
15 won't get into anything we don't need to.
16 MR. BALLOU: He is not going to testify
17 about any particular mechanical device that should
18 have been used?
19 MR. TOBIN: No. You mean identify it?
20 MR. BALLOU: Is he just going to render an
21 opinion that a mechanical device should have been
22 used?
23 MR. TOBIN: Right.
24 THE COURT: Now you know that that is what
CENTRAL VIRGINIA REPORTERS {540)380-5017 181 22 Shinnick - Direct
1 he is going to say because he has already said
2 several things obviously nobody was expecting.
3 MR. TOBIN: Well, maybe it wouldn't be a
4 bad idea to take a five minute recess and I can
5 talk to him.
6 THE COURT: Let's do that.
7 MR. TOBIN: I would rather do that then be
8 back here in 10 more minutes.
9 THE COURT: Okay.
10 (Court and Counsel returned to the Open
11 Courtroom.)
12
13 THE COURT: We are going to have a five
14 minute recess.
15 A DEPUTY: If the jury would come with me,
16 please.
17 (The Jury was excused from the Open
18 Courtroom.)
19
20 THE COURT: Okay, Court is in recess, we
21 will try to take five minutes.
22 MR. TOBIN: Thank you, Your Honor.
23 A DEPUTY: Court will be in recess.
24 (A recess was taken. Following the recess
CENTRAL VIRGINIA REPORTERS (540)380-5017 182 23 Shinnick - Direct
1 Court and Counsel returned to the Open Courtroom.)
2
3 (The witness was excused from the Open
4 Court room. )
5
6 THE COURT: Okay, we are back in session,
7 the jury is out and Doctor Shinnick is out. The
8 lawyers have indicated they want to bring up
9 something outside the presence of the jury and
10 Doctor Shinnick.
11 MR. BALLOU: Judge, when we came back from
12 our side-bar I was advised by Mr. Ramsey and
13 also Ms. Lafon who is with the railroad and whose
14 been observing the trial that while Mr. Tobin and
15 you and I were discussing evidentiary matters in
16 the hallway with the court reporter that
17 Doctor Shinnick in the presence of the jury stood,
18 mimicked some exercises that I am told went from
19 side to side and then pressed up with his right
20 hand similar in motion to what his previous
21 testimony was and said to the jury I'm just doing
22 my-- something along the lines my morning
23 stretches or my exercises.
24 I have a real problem with that, especially
CENTRAL VIRGINIA REPORTERS (540)380-5017 183 24 Shinnick - Direct
1 given the testimony of Doctor Widmeyer yesterday
2 that Ron Bowles whenever he needs to take a break
3 would have to stretch or maybe even lay down and
4 unload his back. Also the request that was made
5 to you yesterday off the record that if Mr. Bowles
6 from sitting for a long period of time had to get
7 up could he leave the courtroom and what could he
8 do and you advised Mr. Ferris and Mr. Tobin what
9 would be proper, and I expect during the
10 plaintiff's examination that he is going to be
11 asked what happens when he sits during periods of
12 time and what does he have to do when he has been
13 sitting for a period of time, and that is to
14 stretch.
15 What happened while Mr. Shinnick addressed
16 the jury essentially is to provide some type of
17 correlation or it helped to sustain the testimony
18 that we think the plaintiff is going to be giving
19 and it's improper for the jury to have heard that
20 and it brings us dangerously close to a mistrial,
21 a motion that I don't want to make since we have
22 worked so hard to get to this point, but at the
23 minimum the witness should be instructed and the
24 jury should be instructed to disregard anything
CENTRAL VIRGINIA REPORTERS (540)380-5017 184 25 Shinnick - Direct
1 that occurred while we were outside, especially
2 any comment made by Mr. Shinnick and that it was
3 improper.
4 THE COURT: What is your response?
5 MR. FERRIS: Your Honor, I remained in the
6 Courtroom. I don't remember the upward motion of
7 the hand as if he were mimicking the shock I
8 imagine is what Mr. Ballou is referring to but,
9 yes, Doctor Shinnick did stand up and make the
10 stretching motion. I remained quiet at that point
11 because I didn't want to draw attention to it or
12 anything in that respect. Your Honor, this can
13 cut both ways. There is no indication that
14 Doctor Shinnick has got a bad back yet he has to
15 stand and stretch, I think that it's a natural
16 human activity and that there was nothing said to
17 the jury about Mr. Bowles, there was nothing said
18 to the jury about the case, there was nothing said
19 to the jury about any of that.
20 It was an awkward situation sitting here
21 with the witness in the witness stand just sitting
22 and of course that is the problem, and if Counsel
23 could have taken-- I mean I don't know what else
24 to tell you, I don't think that any harm has been
CENTRAL VIRGINIA REPORTERS (540)380-5017 185 26 Shinnick - Direct
1 done, and if you do address the jury on it I would
2 rather that it be a generalized remember that the
3 only evidence before you is the evidence that is
4 admitted by the Court while we are in session,
5 that type of an instruction rather than to
6 criticize Doctor Shinnick directly and take away
7 from the testimony that he'll provide to the
8 Court.
9 THE COURT: Well, first off, let me hit
10 some of these points. A time or two yesterday
11 when we took a break, and for the record for
12 economy of time, rather than to send the jury out
13 each time one of these off the record
14 conversations is necessary I simply ask the court
15 reporter and lawyers to step out into the back
16 hallway in the Judge's secured area and we would
17 hold a conference outside the presence of the
18 jury. Usually I make a note to tell somebody or I
19 tell the witness to step down because the
20 configuration of the Courtroom has a witness
21 sitting directly in front of jury staring straight
22 at them and we are out there five or 10 minutes
23 and it's simply an awkward situation sitting there
24 looking straight at the jury the whole time and I
CENTRAL VIRGINIA REPORTERS (540)380-5017 186 27 Shinnick - Direct
1 gather from what you've said that no comment like
2 that was made this morning, the witness continued
3 on the witness stand.
4 Also with respect to people getting up and
5 moving and stretching in the Courtroom, I did say 6 off the record yesterday in response to one of the
7 plaintiff's questions that I also have a bad back
8 and stand up myself periodically during the trials
9 and that if one of the parties in this case, the
10 plaintiff felt it necessary to do so, if he could
11 do that without causing a spectacle or creating
12 problems, no harm done, otherwise for him to get
13 up and leave the room if he had to do some
14 stretching.
15 People frequently get up and leave the room
16 to get a drink of water, go to the bathroom or
17 whatever, and that if anybody causes a spectacle
18 in the Courtroom, especially the plaintiff in this
19 case doing stretching or moving around while the
20 trial is going on, I would eject them from the
21 Courtroom and keep him out except for his testimony.
22 So that is what the reference was earlier.
23 With respect to Doctor Shinnick doing some
24 sort of exercise or stretching, I am sorry it
CENTRAL VIRGINIA REPORTERS (540)380-5017 187 28 Shinnick - Direct
1 happened certainly, I should have told him to get
2 down off the witness stand, and it doesn't sound
3 as bad as what you make it out to be. I will
4 certainly advise the jury that anything that they
5 see or hear while we are outside having these
6 discussions is not admissible evidence, it's to be
7 disregarded by them. How differently did you want
8 me to instruct the jury on that?
9 MR. BALLOU: My suggestion would be because
10 I am not aware of anything else that had happened
11 with any other witnesses is that the jury should
12 be instructed to disregard any comments that the
13 witness made while we were out.
14 THE COURT: Disregard comments that anybody
15 has made.
16 MR. FERRIS: Anybody made. I mean instead
17 of just focusing on the witness, that anybody
18 made.
19 THE COURT: Okay. I will say something
20 somewhere in between what you all are vocalizing.
21 Any other issues?
22 MR. TOBIN: No, Your Honor.
23 MR. BALLOU: I don't believe so, Your
24 Honor.
CENTRAL VIRGINIA REPORTERS (540)380-5017 188 29 Shinnick - Direct
1 THE COURT: We sure took longer than I
2 thought, and you've kept the jury in there and not
3 ·allowed people who wanted to go out and smoke
4 because we thought we would be just five minutes.
5 We will take another 10 minutes then and let those
6 people out, then we won't have to take a break
7 until lunch. Court is in recess.
8 A DEPUTY: Court will be in recess.
9 (A recess was taken. Following the recess
10 Court and Counsel returned to the Open Courtroom.)
11
12 THE COURT: Okay, are we ready for the
13 jury?
14 MR. TOBIN: Yes, Your Honor.
15 MR. BALLOU: Yes, Your Honor.
16 THE COURT: Bring in the jury, please.
17 (The Jury returned to the Open Courtroom.)
18
19 A DEPUTY: The jury is present and seated,
20 Your Honor.
21 THE COURT: All right, thank you. Ladies
22 and gentlemen, sometimes these delays take longer
23 than we plan and I'm sorry it took so long. I am
24 going to direct that you disregard anything that
CENTRAL VIRGINIA REPORTERS (540)380-5017 189 30 Shinnick - Direct
1 you have seen or heard while I was out in the
2 hallway with the court reporter and the lawyers,
3 any information you got from the witness observing
4 him totally disregard that, that is not part of
5 this case, and it was a mistake on my part not to
6 have asked the witness to step outside while we
7 were doing this, so with that let's go ahead with
8 your examination of Doctor Shinnick.
9 MR. TOBIN: Thank you, Your Honor. 10
11 BY MR. TOBIN:
12 Q Doctor Shinnick, you have expressed your
13 opinion that you felt this was an unsafe procedure. What
14 is the basis of that opinion?
15 A The basis is my work task analysis at
16 Shaffers Crossing, the work task of compressing the shock
17 absorber, the materials that I reviewed and the worker
18 complaints that were numerous.
19 MR. BALLOU: Your Honor, I object to
20 testimony about the workers. The question is why
21 he believes the work task is unsafe.
22 MR. TOBIN: If that is the basis for his
23 opinion I think he can.
24 THE COURT: He can testify that in fact
CENTRAL VIRGINIA REPORTERS (540)380-5017 190 31 Shinnick - Direct
1 that is the stuff that he had reviewed, he has
2 already testified that he reviewed the statements
3 of various people.
4 MR. BALLOU: The question is really asked
5 and answered.
6 MR. TOBIN: I haven•t asked him about the
7 basis.
8 THE COURT: I am going to overrule the
9 objection because his testimony is in coming to
10 this conclusion he bases his opinion on what he
11 did, what he saw in the analysis, the materials
12 that were given to him and he is simply
13 enumerating the materials that were given to him.
14 If that question is designed to elicit more than
15 that then I sustain the objection.
16
17 BY MR. TOBIN:
18 Q As I understand it, the basis for your
19 opinion that this task was unsafe was the job site
20 inspection you conducted?
21 A Correct.
22 Q The materials you reviewed?
23 A Yes.
24 Q And the employee complaints made by a
CENTRAL VIRGINIA REPORTERS (540)380-5017 191 32 Shinnick - Direct
1 variety of employees?
2 A Yes, related to the task of compressing 3 shock absorbers.
4 Q Okay, and do you have an opinion based upon
5 a reasonable degree of professional certainty as to
6 whether a mechanical device should have been employed to
7 accomplish this task?
8 A Yes, I do.
9 Q And what is that opinion?
10 A A mechanical device should have been
11 employed to perform the task of compressing the shock
12 absorber.
13 Q And in addition to doing the ergonomic or
14 task analysis study, did you also conduct a vocational
15 analysis?
16 A Yes.
17 Q And can you explain the relationship
18 between an ergonomic or a task analysis and a vocational
19 analysis?
20 A Okay, the ergonomic analysis was the
21 analysis of the work task of compressing the shock. The
22 vocational evaluation is the evaluation specifically of
23 Mr. Bowles and his post injury capacity to work and what
24 jobs he may be able to perform at what exertional levels
CENTRAL VIRGINIA REPORTERS (540)380-5017 192 33 Shinnick - Direct
1 was the question and the purpose of my vocational
2 assessment.
3 Q And did you issue a report in that regard?
4 A Yes, I did.
5 Q And what materials did you review in
6 relation to your vocational assessment?
7 A I reviewed the medical records, again the
8 injury report, I reviewed Doctor Stevens records,
9 Doctor Widmeyer, Doctor Schoedinger who performed the L3,
10 L4 laminectomy on his spine, I also reviewed a functional
11 capacity assessment that was done prior to the surgery.
12 Q Okay.
13 A And I also reviewed the Dictionary of
14 Occupational Titles and data related to employment.
15 Q What is the Dictionary of Occupational
16 Titles?
17 A It's a publication that has been published
18 by the United States Department of Labor since the
19 thirties and updated continuously that depicts every
20 occupation in the US economy, and there are 11,741
21 occupational groups and that depicts all the jobs in the
22 US economy. It also has all the variables associated with
23 those jobs, the skill level, the exertional level and what
24 sort of even aptitudes and capacities, physical
CENTRAL VIRGINIA REPORTERS (540)380-5017
1Q~ 34 Shinnick - Direct
1 capacities, environments, that each of those occupations
2 require.
3 Q And is the job title of machinist listed?
4 A Yes, it is.
5 Q And what information is provided with
6 regard to exertional levels in the Dictionary of
7 Occupational Titles specifically regarding the job title
8 of machinist?
9 A A machinist is considered a skilled job,
10 the skills are acquired on the job, on-the-job training
11 experience, and it is at the heavy exertional level.
12 Q And according to the United States
13 Department of Labor guidelines, what is the heavy
14 exertional level in terms of pounds?
15 A Heavy work as defined requires the frequent
16 use or having to pull, push, carry SO to 100 pounds in
17 order to perform that work task.
18 Q And that is for the job title of machinist?
19 A That is for the job title of machinist
20 which represents and collocates the work that Mr. Bowles
21 performed at Shaffers Crossing.
22 Q And you mentioned a functional capacity
23 evaluation?
24 A Yes.
CENTRAL VIRGINIA REPORTERS (540)380-5017 194 35 Shinnick - Direct
1 Q What is a functional capacity evaluation or
2 what is the purpose of a functional capacity evaluation?
3 A It's to determine a person's physical
4 capacity as far as lifting, carrying, their ability to
5 stand, walk, sit, bend, stoop, and be able to physically
6 exert themselves.
7 Q And did you also carry out some functional
8 capacity testing at the time of your exam of Ron Bowles?
9 A Yes.
10 Q What were the results of your functional
11 capacity testing?
12 A As far as his performance on the test or
13 the findings?
14 Q His performance on the test.
15 A Okay, I administered what is called the
16 APTICOM, which is a battery of tests, and it's a
17 vocational aptitude battery. The purpose of administering
18 that was two fold. One was to determine Mr. Bowles'
19 vocational aptitude profile, which is again included in
20 the Dictionary of Occupational Titles, and two was to
21 determine his ability to perform those tasks over time.
22 This test takes an hour to observe his capacity for
23 sitting, for reaching, handling and what occurs to him as
24 far as his perceived pain level, his ability to sit and
CENTRAL VIRGINIA REPORTERS (540)380-5017
1Q~ 36 Shinnick - Direct
1 focus, concentrate for extended periods of time.
2 Q Based upon your vocational capacity
3 evaluation, the results of the functional capacity
4 examination, Ron's medical condition and the fact that he
5 is a post-op laminectomy and diskectomy at the L3, L4
6 level, do you have an opinion based upon a reasonable
7 degree of professional certainty as to whether Ron Bowles
8 is capable of returning to railroad employment as a
9 machinist?
10 A Again, that is heavy exertional work and,
11 no, he could not return to the job at the railroad as a
12 machinist.
13 Q Can you briefly outline Ron's life
14 situation at the time that you consulted with him?
15 A Well, I saw Mr. Bowles on August 7, 1998,
16 and part of the evaluation has to deal with my interview
17 of Mr. Bowles, reviewing his background, education, work
18 history, training, and also to discuss his current life
19 situation as far as what he is currently doing on a daily
20 basis, what limitations he is experiencing, and then
21 administer tests, and that all is sort of integrated.
22 One of the things that is vocationally
23 important is I asked him to respond to a subjective pain
24 scale of zero, representing no pain, and 10 at the highest
CENTRAL VIRGINIA REPORTERS (540)380-5017 196 37 Shinnick - Direct
1 end of the scale representing excruciating pain, five
2 being in the middle, so it's a continuum of strong pain.
3 He responded to that and I asked him throughout the
4 assessment and the interview and of course during the
5 interview, certainly during the testing his pain grade
6 increased, he stated that his average pain grade is
7 between a five and seven out of 10, so excruciating being
8 the strongest pain tolerable.
9 This happens on a daily basis. Basically
10 to manage his pain he has to lie down during the day, he
11 is prescribed pain medication, he has limitations in his
12 ability to sit, stand, and I think vocationally what is
13 important is that there are good days and bad days.
14 Vocationally, as we all know, work requires that you show
15 up as scheduled per shift and perform on a regular and
16 consistent basis throughout the work shift and be able to
17 continuously do that.
18 When a person has bad days as
19 Mr. Bowles was where pain spikes up to a 10 out of 10,
20 excruciating pain, he is not able, he certainly wouldn't
21 be able to work, wouldn't be able to concentrate, wouldn't
22 be able to function on a job, so he couldn't regularly and
23 consistently perform work based on pain grade spikes alone.
24 The other part of the assessment is
CENTRAL VIRGINIA REPORTERS (540)380-5017 197 38 Shinnick - Direct
1 assessing the exertional levels in which Mr. Bowles
2 potentially could work which are sedentary and which is a
3 job where you're seated and you. have to sit for a minimum
4 of six hours out of an eight hour day, that is giving
S breaks and allowances and so forth, and then there was 6 light work.
7 Light is basically work that is standing a
8 minimum of six out of an eight hour day giving breaks and
9 allowances, and standing also would require the capacity
10 for frequent 10 to 20 pounds of exertional capacity, in
11 other words being able to lift, carry, move, pull, push 10
12 to 20 pounds while standing six to eight hours out of a
13 work shift, and medium exertional work is jobs that
14 involve 20 to SO pounds of pushing, pulling, handling,
1S manipulating, and then of course we have heavy exertional
16 work which as we said before is similar to Mr. Bowles past
17 work history which is SO to 100 pounds.
18 Q In addition, did you review Ron's work histor~?
19 A Yes, I did.
20 Q And what is the purpose when you are
21 conducting a vocational evaluation of doing a work
22 history?
23 A It's to determine if there are transferable
24 skills. In many jobs as in his there are skills that are
CENTRAL VIRGINIA REPORTERS (S40)380-S017 198 39 Shinnick - Direct
1 acquired. In his case the question is does he have
2 skills, do they transfer to a lighter exertional level of
3 work, do they transfer to medium, light or sedentary work,
4 can he market those skills that he has acquired being a
5 machinist.
6 Q And what was your conclusion in regard to
7 Ron's transferable skills?
8 A He did work at a skilled level, those
9 skills because of the nature of the work of a machinist
10 are not transferable to medium, light or sedentary work.
11 They are specific to heavy work.
12 Q Ron is 55 years old, how does that age
13 effect an individual's ability to obtain employment?
14 A Social Security Administration and the
15 Department of Labor has determined that a person who is--
16 MR. BALLOU: Your Honor, I will object to
17 the hearsay.
18 THE COURT: I sustain that, he can give his
19 opinion, but not the opinion of the Social
20 Security Administration or the Department of
21 Labor.
22
23 BY MR. TOBIN:
24 Q How does an individual's age at age 55
CENTRAL VIRGINIA REPORTERS (540)380-5017 199 40 Shinnick - Direct
1 effect ones ability to find employment?
2 A They would be classified as advanced
3 vocational age, and that would indicate that they would
4 not be able to learn, go into a new trade, a new
5 profession, a new set of skills. Between the ages of SO
6 and 55, which is my age, you're approaching advanced age,
7 and I have limited capacity to learn a new profession,
·8 trade or skills. It's basically the recognition that you
9 can't teach us old dogs new tricks.
10 Q Are you familiar with the railroad's clerks
11 position?
12 A Yes, I am.
13 Q In your opinion is Ron qualified to return
14 to work for the railroad as a clerk?
15 A No, he is not. As a clerk it would be a
16 sedentary job, it would require sitting for six to eight
17 hours per day. He does not have the capacity to do that
18 and maintain concentration, focus on the work task and do
19 so on a regular and consistent basis. It also requires
20 keyboarding skills at 30 words per minute, which he does
21 not have, did attempt to acquire and was not successful in
22 that attempt.
23 Q What effect would his medication status
24 have on his ability to return as a clerk?
CENTRAL VIRGINIA REPORTERS {540)380-5017 200 41 Shinnick - Direct
1 A Pain medication does have-- it does inhibit
2 concentration from a vocational standpoint. It does
3 inhibit sustained performance. By its design it does--
4 vocationally it is a significant liability to have to take
5 or be prescribed pain medication.
6 Q Do you have an opinion based upon a
7 reasonable degree of professional certainty and based upon
8 your vocational examination, based upon the functional
9 capacity examination, based upon the testing that you have
10 carried out, based upon Ron's advanced age of 55, based
11 upon the lack of transferable skills, based upon Ron's
12 chronic pain, and based upon Ron's status as post-op
13 laminectomy and diskectomy at the L3, L4 level, as to
14 whether Ron Bowles is capable of finding gainful
15 employment in today's economy?
16 A Yes, I do have an opinion.
17 Q And what is your opinion? 18 A He is not able to obtain or.retain 19 occupations in the regional economy. No one is going to
20 hire him. He has attempted to his credit and applied to
21 over 60 jobs.
22 MR. BALLOU: Your Honor, I'll object to the
23 hearsay.
24 THE COURT: I sustain that.
CENTRAL VIRGINIA REPORTERS (540)380-5017 201 42 Shinnick - Cross
1 THE WITNESS: Okay. He has made attempts 2 and basically an employer will not and would not
3 hire him because of his vocationally advanced
4 age. We are not going to call him advanced age, 5 it's vocational, and what that implies, the fact
6 that he has an injury, the fact he has chronic
7 pain, the fact that he doesn't meet the basic
8 standards or requirements to sedentary, light,
9 certainly medium exertional level work, and he 10 does not have transferable skills, so basically he
11 is having to market himself as an unskilled, entry
12 level worker who is injured who is age 55 who is 13 in chronic pain taking medication. Given all
14 that, there are not jobs that he would be able to 15 obtain.
16 MR. TOBIN: That is all the questions I
17 have, Your Honor. 18
19 CROSS EXAMINATION
20
21 BY MR. BALLOU:
22 Q Doctor Shinnick, you were hired by the 23 plaintiff to testify here today?
24 A Yes.
CENTRAL VIRGINIA REPORTERS (540)380-5017 202 43 Shinnick - Cross
1 Q In fact, you have testified in numerous
2 cases on behalf of different plaintiffs, is that right?
3 A On behalf of Mr. Tobin.
4 Q Different plaintiffs?
5 A Different plaintiffs, yes.
6 Q In fact, many of those are against the
7 railroad?
8 A Some have been.
9 Q To date, what have you been paid in
10 connection with your work in this case?
11 A I don't know for sure, probably $750 to
12 $1,000. I haven't invoiced at this point.
13 Q And how much are you being paid to testify
14 for yesterday and today?
15 A My fees are based upon $120 an hour and
16 $150 an hour for testimony.
17 Q And so that would be-- how much time have
18 you spent between yesterday and today?
19 A I don't know.
20 Q And you testify frequently, is that
21 correct?
22 A No, I wouldn't characterize it that way.
23 Q Well, in fact in 1997 about 40 percent
24 of your income was derived from testifying for
CENTRAL VIRGINIA REPORTERS (540)380-5017 203 44 Shinnick - Cross
1 Dicky Cranwell, is that correct?
2 A No, that is incorrect.
3 Q Well, in connection with Social Security
4 cases and also other cases with Dicky Cranwell in 1997,
5 you earned approximately 40 percent of your income
6 testifying, is that correct?
7 A No, that is incorrect.
8 Q Forty percent of your work is for
9 Dicky Cranwell, is that correct?
10 A Pardon?
11 Q Forty percent of your work was for
12 Dicky Cranwell?
13 A Absolutely not, and I know that is on the
14 record, but that was not what I had said.
15 Q Let me ask you, Doctor Shinnick, do you
16 recall testifying in a case called Jimmy Lenear versus
17 Norfolk and Western Railway Company in the Circuit Court
18 for the City of Norfolk?
19 A Yes.
20 Q Okay. And that testimony was January 12,
21 1998, is that correct?
22 A I believe so.
23 Q And did you testify in that case that--
24 you talked about you did 40 percent of my work for
CENTRAL VIRGINIA REPORTERS (540)380-5017 204 45 Shinnick - Cross
1 Dicky Cranwell and his particular law firm, is that
2 correct?
3 A That is-- I have gone through this before.
4 That's an incorrect record of what I said. I don't work
5 40 percent for Mr. Cranwell or anyone else.
6 Q That was not your testimony on that day?
7 A That was what was recorded, but that is not
8 what I said.
9 Q And so the court reporter such as
10 Ms. Thorson here took it down wrong, is that your
11 testimony?
12 A I can explain where the 40 percent came
13 from if you would like.
14 Q I am just asking if that was your testimony
15 on that day.
16 A No, it was not.
17 Q Okay. And the court reporter took it down
18 incorrectly?
19 A She took down 40 percent of my time has to
20 do with either Social Security, worker's comp or something
21 that involves litigation either for the plaintiff or
22 defense.
23 Q And in fact you're going to be back down in
24 this very courtroom at the end of this month testifying in
CENTRAL VIRGINIA REPORTERS (540)380-5017 205 46 Shinnick - Cross
1 connection with another case for Mr. Tobin, is that
2 correct?
3 A I may be, I haven't looked at my schedule.
4 Q Okay. In fact, you're going to be back
5 down in this very courtroom in April testifying in behalf
6 of another case for a Mike Michaelson from Cleveland
7 against the railroad?
8 A Yes, I will.
9 Q Now, your opinions as to what Mr. Bowles
10 was doing at the time that he reported his injury are
11 based upon what he told you, is that correct?
12 A It's based upon the accident report, the
13 safety committee's investigation, my interview, what has
14 been recorded by Mr. Bowles, what he told me, and my
15 performance or job analysis of that task.
16 Q Let me ask you, though, no one was with
17 Mr. Bowles when he claims to have been injured, is that
18 correct?
19 A To my knowledge, that is correct.
20 Q So those reports and what you've gained is 21 based upon what he has said as to what he was doing at the
22 time?
23 A At that time. It's been confirmed what the
24 work process was.
CENTRAL VIRGINIA REPORTERS (540}380-5017 206 47 Shinnick - Cross
1 Q And your opinions are very important in 2 understanding what Mr. Bowles was doing at the time that
3 he claims to have been injured, is that correct?
4 A It's important that I understand the work
5 process of compressing a shock.
6 Q And in connection with what you understood,
7 you understood that Mr. Bowles had worked in the wheel
8 machine for 24 years, is that correct?
9 A Yes.
10 Q And that he had been compressing shock
11 absorbers for almost 15 years as locomotives would come
12 through, is that correct?
13 A That is correct.
14 Q And it's also your understanding that there
15 was no defect with the shock, is that correct?
16 A That is correct.
17 Q Okay. And that he was performing a routine
18 procedure that he did every day?
19 A Yes, he was.
20 Q And that what he was trying to do was to
21 recap an axle by attaching the shock absorber, is that 22 correct?
23 A Yes.
24 Q It is your understanding, am I correct,
CENTRAL VIRGINIA REPORTERS (540)380-5017 207 48 Shinnick - Cross
1 that he had already brought the shock absorber down and
2 had it against the journal cap and needed to raise it two
3 inches, is that correct?
4 A That is correct, needed to raise it two
5 inches and push it into location, alignment.
6 Q But he had already brought it back down
7 against the journal cap, is that correct?
8 A Yes.
9 Q And it's also your understanding that
10 Mr. Bowles felt pain as he was compressing upwards?
11 A Upwards and in, yes.
12 Q That is what your understanding is, upwards
13 and in, that is your understanding?
14 A That's my understanding based upon my work
15 task analysis of what is required in order to compress a
16 locomotive shock.
17 Q But I'm asking you what your understanding
18 was that Mr. Bowles was doing at the exact time that he
19 claims to have felt pain.
20 A He was compressing a shock and involved in
21 the process of the last two inches of placement of the
22 shock bracket to the journal cover.
23 Q And it's also your understanding that
24 Mr. Bowles did not fall?
CENTRAL VIRGINIA REPORTERS (540)380-5017 208 49 Shinnick - Cross
1 A Did not.
2 Q That he did not fall?
3 A That's correct.
4 Q He didn't slip?
5 A No.
6 Q Okay. He didn't grab on to anything?
7 A That's correct.
8 Q In fact, it's your understanding that
9 Mr. Bowles completed capping that journal cap, did he not?
10 A Yes.
11 Q And then he reported his pain to his
12 supervisor, is that correct?
13 A Yes, that's correct.
14 Q And he worked the remainder of that shift,
15 is that correct?
16 A Yes, he did.
17 Q He worked two more days?
18 A Yes, I think that is in the record, and
19 then he started taking leave or marking off as they call
20 it on the railroad.
21 Q Well, the fact of the matter, isn't it that
22 he went on vacation for a week, is that correct?
23 A He marked off, what he did, I don't know.
24 Q And your opinion is a mechanical device
• CENTRAL VIRGINIA REPORTERS (540)380-5017 / 209 so Shinnick - Cross
1 should have been used in compressing the shock absorber,
2 is that correct?
3 A Yes.
4 Q Now, you are not a medical doctor?
5 A No.
6 Q And you 1 re not authorized to treat the
7 plaintiff medically?
8 A I 1 m sorry?
9 Q You are not authorized to treat him
10 medically, is that correct?
11 A No.
12 Q Now, you have reviewed the functional
13 capacity evaluation that was performed by Terry Ferrier,
14 is that right?
15 A Yes.
16 Q That was your testimony. And that
17 functional capacity evaluation was performed when?
18 A That was prior to the surgeries that were
19 performed on Mr. Bowles.
20 Q In fact, it was performed on May 3, 1995,
21 is that correct?
22 A That 1 s correct.
23 Q And in fact, that functional capacity
24 evaluation was done before Mr. Bowles even went to see
CENTRAL VIRGINIA REPORTERS (540)380-5017 \ 210 51 Shinnick - Cross
1 Doctor Goldstock at Roanoke Orthopedic Clinic, is that
2 right?
3 A I believe so.
4 Q And in fact, it was before he even saw
5 Doctor Widmeyer?
6 A Yes, chronologically, yes.
7 Q And it was requested by a Doctor George
8 Schoedinger, is that correct?
9 A I believe so, that would be reasonable, he
10 saw Doctor Schoedinger on--
11 Q I am just asking you.
12 A On August 10, 1993.
13 Q But the functional capacity evaluation
14 wasn't performed until May 3, 1995, is that right?
15 A Yes.
16 Q And that is almost 20 months later?
17 A Yes.
18 Q And that functional capacity evaluation
19 would show a man's functional capacity as determined by
20 that evaluator at that particular time, is that correct?
21 A That is correct.
22 Q And the functional capacity evaluation
23 showed that Mr. Bowles, at least as of May 3, 1995, was
24 capable of performing light to light/medium work, is that
CENTRAL VIRGINIA REPORTERS (540)380-5017 ! 211 52 Shinnick - Cross
1 correct?
2 A Yes.
3 Q Okay, and in fact Terry Ferrier is the one
4 that did the functional capacity evaluation, is that
5 correct?
6 A That is correct.
7 Q And do you know her?
8 A No, I do not.
9 Q You have not worked with her in connection
10 with your work in vocational rehab?
11 A No, I have not. I have seen her reports, I
12 haven't worked with her directly.
13 Q She has an office just like you in
14 Blacksburg?
15 A I believe so.
16 Q Now, Ms. Ferrier also made the
17 determination and recommendation that Mr. Bowles, at least
18 as of May 13, 1995, should enter into a rehabilitation
19 program, is that correct?
20 A That was on May 3, 1995.
21 Q May 3, excuse me.
22 A Yes.
23 Q And that he also should do something to
24 improve his aerobic condition, is that correct?
CENTRAL VIRGINIA REPORTERS {540)380-5017 212 53 Shinnick - Cross
1 A That is a standard recommendation, yes.
2 Q And it was also Ms. Ferrierrs conclusion at
3 that time that these two activities would help to improve
4 Mr. Bowles functional capacity?
5 A Yes.
6 Q And functional capacity would be his
7 ability to work?
8 A Thatrs correct. Well, his functional
9 capacity may or may not be his ability to work. His
10 functional capacity would be his ability to function and
11 hopefully at that point one would have hoped that he would
12 be able to function at a level in which he could return to
13 work, and that is always the objective of mine and most
14 physical therapists.
15 Q How many times have you met with
16 Mr. Bowles?
17 A I met with him three times.
18 Q Now, the report that you provided, you met
19 with him on one occasion? You had only met with him on
20 one occasion, is that correct?
21 A On August 7, 1998. That was based on my
22 August 14, 1998 report, yes.
23 Q Well, that is the report from a vocational
24 standpoint that you have not supplemented?
CENTRAL VIRGINIA REPORTERS (540)380-5017 213 54 Shinnick - Cross
1 A Pardon?
2 Q From a vocational standpoint you have not
3 supplemented your report, have you, is that correct?
4 A No, I have not.
5 Q On August 7 of 1998, you administered these
6 tests that took about an hour?
7 A Yes.
8 Q And how much other time did you spend with
9 Mr. Bowles?
10 A I would say approximately three hours, two
11 and a-half to three hours.
12 Q Is that in addition to the test?
13 A That's including the test.
14 Q So he spent an hour taking the test and
15 then you spent about an hour and a-half to two hours with
16 him, is that correct?
17 A Yes.
18 Q And then you met with him when else?
19 A I met with him at the time of the site
20 inspection which would have been-- I put that report away.
21 Q But when you met with him at the time of
22 the site inspection, that was for the purpose of the site
23 inspection, is that correct?
24 A Yes, his work site was visited on
CENTRAL VIRGINIA REPORTERS (540)380-5017 214 55 Shinnick - Cross
1 October 12, 1998.
2 Q And when else did you meet with him?
3 A I met with him prior to this proceeding.
4 Q So you could get ready to testify today?
5 A On Sunday. So I could follow up with him,
6 update my information.
7 Q Now, you would agree that Mr. Bowles has a
8 high school education?
9 A Yes.
10 Q And you have not spoken with any of his
11 physicians?
12 A No.
13 Q That would include Doctor Stevens?
14 A That's correct.
15 Q Doctor Schoedinger?
16 A Yes.
17 Q And Doctor Widmeyer?
18 A Right. I reviewed their records.
19 Q And of course you have not spoken with
20 Terry Ferrier?
21 A No, I have not.
22 Q And there has not been any functional
23 capacity evaluation done such of the type that
24 Terry Ferrier did since May of 1995?
CENTRAL VIRGINIA REPORTERS (540}380-5017 215 56 Shinnick - Cross
1 A That is correct.
2 Q Now, Mr. Bowles told you he was active in 3 his hobbies, is that correct?
4 A Prior to injury.
5 Q Okay. In fact, he was quite active in the
6 show car industry, is that right?
7 A Prior to injury, yes.
8 Q And did he tell you that he likes to take
9 cruises?
10 A Yes, prior to injury.
11 Q And did he tell you whether he wanted to
12 return to work?
13 A Yes, he did tell me that he did want to
14 return to work.
15 Q Have you made any efforts to find
16 Mr. Bowles a job?
17 A No, I have not.
18 .Q You have not made any phone calls on his
19 behalf?
20 A No.
21 Q And this is your area of expertise, is that
22 right, vocational rehabilitation?
23 A That is correct, and if I thought that 24 effort would be successful I would certainly engage in it.
CENTRAL VIRGINIA REPORTERS (540)380-5017 21·6 57 Shinnick - Cross
1 Q Now, today you're telling us that
2 Mr. Bowles cannot work at all?
3 A That's correct.
4 Q And in fact as a vocational
5 rehabilitationist you have been able to put successfully a
6 quadriplegic back to work, is that correct?
7 A Yes, I have. That is a person who is
8 paralyzed with a spinal injury at the neck and has limited
9 use or no use of hands and arms.
10 Q Okay. And I take it that you're saying
11 that Mr. Bowles is less employable than a quadriplegic?
12 A Yes, and the reason why is a quadriplegic
13 as I said feels no pain from the shoulders down and their
14 concentration is not impaired. Mr. Bowles feels pain
15 every day at varying levels that will spike and, you know,
16 days of an average five/ten and his pain grade will spike
17 up to ten, that is the primary difference.
18 Also the paraplegics and quadriplegics I
19 have placed have had transferable skills, they were
20 younger individuals who normally had a professional
21 degree.
22 Q . And you have made no efforts on behalf of
23 Mr. Bowles?
24 A No.
CENTRAL VIRGINIA REPORTERS (540)380-5017 217 58 Shinnick - Redirect
1 MR. BALLOU: Nothing further, Your Honor.
2 MR. TOBIN: Just one follow up I think,
3 Your Honor.
4
5 REDIRECT EXAMINATION
6
7 BY MR. TOBIN:
8 Q Mr. Ballou has indicated that the
9 shocks were compressed in this fashion for a number of
10 years prior to Ron Bowles accident, and it's your opinion
11 that this was an unsafe task and a mechanical device
12 should have been employed. How do you explain the fact
13 that there weren't more incidents prior to Ron Bowles
14 injury?
15 MR. BALLOU: Your Honor, I am going to
16 object to the question, it calls for speculation.
17 THE COURT: I sustain that, that does call
18 for pure speculation.
19 MR. TOBIN: No further questions then.
20 THE COURT: All right, thank you. Is he
21 free to leave?
22 MR. TOBIN: Yes, Your Honor.
23 THE WITNESS: Thank you, Your Honor.
24 (The witness was excused from the Stand.)
CENTRAL VIRGINIA REPORTERS (540)380-5017 218 113 Mr. Bowles - Direct
1 Q And what is your wife's name?
2 A Susan Diane.
3 Q How long have you been married to Diane?
4 A 22 years.
5 Q Where did you attend high school?
6 A Northside High School.
7 Q And what year did you graduate?
8 A '63.
9 Q What did you do after you graduated in
10 1963?
11 A I went to work with Kroger Company.
12 Q And how long were you with Kroger?
13 A Until 1967.
14 Q And what happened at that point in time?
15 A I left Kroger and went to work for Norfolk
16 Western.
17 Q And did the Norfolk and Western at some
18 point later merge with the Southern Railroad to form the
19 Norfolk and Southern Railroad?
20 A Yes, they did.
21 Q When you hired in in 1967, what department
22 did you hire in?
23 A Locomotive department.
24 Q And what was your job title?
CENTRAL VIRGINIA REPORTERS (540)380-5017 219 114 Mr. Bowles - Direct
1 A Apprentice machinist.
2 Q Can you explain to the jury what a
3 machinist does?
4 A Well, a machinists duties are to maintain
5 the locomotives, test, inspect, we do any of the
6 mechanical repairs except for electrical and some plumbing
7 or piping work.
8 Q As far as exertional level, how would you
9 describe it based upon your experience as a machinist?
10 A Heavy.
11 Q And how long were you a machinist?
12 A Twenty-six and a-half years.
13 Q Toward the later part of your career what
14 was your annual wage as a machinist?
15 A About $32,000.
16 Q What was your hourly wage?
17 A $15.50 I think.
18 Q Prior to 1993, June of 1993, did you ever
19 injure your back?
20 A Yes, I did.
21 Q And when did you first injure your back?
22 A In 1975.
23 Q Was that an on-the-job injury?
24 A Yes, it was.
CENTRAL VIRGINIA REPORTERS (540)380-5017 220 115 Mr. Bowles - Direct
1 Q When was your next back injury?
2 A In 1985.
3 Q And did you have a procedure at that time?
4 A Yes, I did.
5 Q And what was kind of procedure was that,
6 Ron?
7 A It was an enzyme injection, a
8 chemonucleolysis injection I think they called it.
9 How long were you off work at that time?
11 And then you returned to work?
12 Yes, I did.
13 When was your next back injury?
14 In 1989.
15 And did you have any procedures at that
16
17 Yes, I did.
18 What kind of procedures did you have?
19 I had a laminectomy surgery in April of
20 1989 and another laminectomy surgery in July of 1989.
21 Q After you recuperated did you have a return
22 to work physical?
23 A Yes, I did.
24 Q And was this return to work physical
CENTRAL VIRGINIA REPORTERS (540)380-5017 •221 116 Mr. Bowles - Direct
1 conducted by a company doctor?
2 MR. BALLOU: Your Honor, I object to the
3 leading nature of the questions at this point.
4 THE COURT: I sustain the objection to
5 leading questions.
6
7 BY MR. TOBIN:
8 Q Who was the return to work physical
9 conducted by?
10 A I don't remember the doctor's name, it was
11 at Lewis-Gale Hospital.
12 Q Was he a company doctor?
13 A As far as I know he was.
14 Q What were the results of that physical
15 examination? Were you cleared to return to work?
16 A I was cleared to return to work.
17 Q Were you given any restrictions at that
18 time?
19 A None.
20 Q Can you tell the jury between 1989 and 1993
21 how you were functioning at work and what you did at work?
22 A I did my normal job that I had done in the
23 past which was operate the wheel machine, same duties at
24 home, you know, life went back to normal.
CENTRAL VIRGINIA REPORTERS (540)380-5017 222 117 Mr. Bowles - Direct
1 Q Prior to June of 1993 were you ever injured
2 while compressing a shock?
3 A Yes, I was.
4 Q And on what date?
5 A It was in '87, I don't remember the exact
6 date. It was in 1987.
7 Q And what happened on that occasion?
8 A I was compressing a shock absorber back in
9 position, very similar as we have previously discussed. I
10 don't remember the exact locomotive number, but at that
11 time I was using a three foot pinch bar using it for
12 leverage to pull the shock back into position and
13 compressing upwards, basically the same procedure here
14 that has been demonstrated, and I pulled a muscle in my
15 chest and shoulder blade.
16 Q Okay. That was back in 1987?
17 A Yes.
18 Q Can everybody hear him? At this time I
19 would like to direct your attention to June 23, 1993. Was
20 that the date of your accident?
21 A Yes, it was.
22 Q Where were you working at that time?
23 A On the wheel machine.
24 Q Where was this wheel machine located?
CENTRAL VIRGINIA REPORTERS {540)380-5017 223 118 Mr. Bowles - Direct
1 A In the wheel truing building.
2 Q In terms of location, was this on Norfolk 3 Southern property?
4 A Yes.
5 Q What city was it in?
6 A Roanoke.
7 Q And was it in some shop?
8 A Yes.
9 Q Which shop was it in?
10 A It was at Shaffers Crossing shop, wheel
11 machine building.
12 Q So you were working in the Shaffers
13 Crossing shop, wheel machine building?
14 A That's correct.
15 Q What time did you start your shift?
16 A Eleven o'clock, 11 p.m.
17 Q To whom did you report?
18 A C. P. Saunders.
19 Q And did you receive your job assignment at
20 that time?
A
22 Q And what was your job assignment on
23 June 23, 1993?
24 A To finish whatever I found on the
CENTRAL VIRGINIA REPORTERS (540)380-5017 224 119 Mr. Bowles - Direct
1 locomotive on the wheel machine. Many times they are not
2 fully accurate on the turnovers to how much has been done,
3 how much is completed, so my job was to complete the
4 locomotive.
5 Q You have mentioned on a couple of occasions
6 a wheel machine; can you just explain to the jury what
7 this wheel machine does?
8 A As a locomotive is used, quite obviously a
9 heavy piece of machinery, the wheels compact, which is
10 wear, causing the wheel tread to wear down creating a
11 flange heighth or a higher flange than is acceptable by
12 federal guidelines. This flange is what holds the
13 locomotive on the rail. These flanges will get too high
14 or too thin so it has to go to the wheel machine to be
15 recontoured.
16 We have cutter heads that are designed to
17 the proper contour for the tread and the flange. We
18 install the proper cutters for the proper wheel that we•re
19 truing, gauge the cutters, of course we uncap the
20 locomotive as it comes into the machine, remove the
21 shocks, whatever method is used, put the locomotive on the
22 machine, we h~ve hydraulic buttons that-- they are
23 electrical buttons that control hydraulic solenoids.
24 One of the buttons is one to raise a set of
CENTRAL VIRGINIA REPORTERS (540)380-5017 225 120 Mr. Bowles - Direct
1 drive rollers they are called. This raises the wheel up
2 off of the rail, the rail is then opened which exposes the
3 opening to the wheel machine. The machine is then with
4 very similar buttons, it•s a panel of about 25 buttons
5 that you control it with, but they are all electric
6 buttons that control hydraulic operations, the machine is
7 then raised into position under the wheels, the centers
8 are raised to match the center of the axle, this is the
9 reference point so that both sides cut equally and a pivot
10 point for the cutters to be on.
11 The cutters have to be gauged because the
12 machine slides back and forth so you use your center
13 in/out button to shift the machine right or left, you have
14 a gauge on the cutter head that aligns with the back of
15 the wheel and you jockey the machine back and forth until
16 that is in perfect alignment, and then you go to the other
17 side, use the same gauge, and that is a screw adjustment
18 that positions everything correctly for the wheel. They
19 have to be extremely accurate.
20 You start your cut into the machine, you
21 start the spindles running, the spindles drive the cutter
22 heads that actually do the cutting on the wheel and you
23 hydraulically again with buttons lift the machine up until
24 you make a light touch contact on the wheel and then you
CENTRAL VIRGINIA REPORTERS (540)380-5017 226 121 Mr. Bowles - Direct
1 feed a slow feed that is thousands at a time until you get
2 the maximum cut that you can do with that particular cut,
3 and on a new wheel it's about eight minutes, maybe more
4 per revolution. On a thinner wheel it will be six and
5 a-half to seven minutes possibly because of the diameter
6 difference.
7 In some occasions you may have to take two
8 cuts on a wheel, sometimes I've taken as many as ten cuts
9 on a wheel. The thinner the flange is the more tread has
10 to be cut away because you can't restore metal back when
11 it's gone, you can only cut into the new metal until you
12 receive your inch and a quarter or inch and three eighths
13 flange thickness which is the guidelines, and with a one
14 inch height, so there can be considerable time in truing a
15 wheel. After the wheel is trued you reverse the process,
16 let the machine back down, centers are taken out, rails
17 closed, you remove your idle rollers that position the
18 wheel to keep it from rolling back and forth and you use
19 the rabbit, which is an in-line pulley assembly, and a
20 track that is attached to the leg liners or the boulstal
21 area of the locomotive by a chain, you pull the engine
22 head to the next wheel, use a wedge to stop it in the
23 right position and set up for the next wheel.
24 Q While the wheel truing machine is doing its
CENTRAL VIRGINIA REPORTERS (540)380-5017 227 122 Mr. Bowles - Direct
1 job, do you perform other tasks?
2 A Yes, I do. The normal procedure is we have
3 two axle truck locomotives and three axle truck
4 locomotives, being four wheel locomotives or six wheel
5 locomotives, and speaking of wheels that is an axle set
6 because the wheels don't turn independently, they are
7 pressed on an axle so they are considered as number one
8 wheel and number two wheel set. You uncap-- say for
9 instance this ·locomotive in question has two axles per
10 truck, you'll uncap one and two, pull that number one on
11 the machine and start this process that I described and
12 then you go to the back of the pit and proceed to uncap
13 three and four so that they will be ready as the
14 locomotive is moved up.
15 Q If you used one of these exhibits-- you
16 mentioned several times uncapping a wheel. Can you use
17 Plaintiff's Exhibit Number Two and describe to the jury
18 how you go about uncapping the wheel?
19 A Yes.
20 Q Would you feel more comfortable sitting or
21 standing?
22 A Well, I'll sit.
23 Q Can you see from there?
24 A You would remove these four bolts, this is
CENTRAL VIRGINIA REPORTERS (540)380-5017 228 123 Mr. Bowles - Direct
1 the shock mounting bracket, these four bolts would be
2 removed. I don't recall the exact size on these, but on
3 an average these bolts are seven-eighths bolts with inch
4 and 15, five-sixteenths heads. You remove this assembly
5 loose, take it loose, press the shock absorber up and out
6 of the way where it's at a tall angle so that, as I told
7 you, you raise the centers to match the axle center.
8 Q Is this the shock absorber right here?
9 A This is the shock absorber.
10 Q And when you undo these bolts it comes away
11 from the wheel?
12 A No, yes-- well, no, it will stay right
13 where it is. This is all in a rubber bushing here and
14 then this bolting mechanism is attached which creates a
15 tight fit on the shock so there is pretty good relatively
16 stiff compression even upwards to get this shock up out of
17 the way, and then it has to be wedged at the top with a
18 shorter bolt that will fit between it and the truck frame
19 to hold it in that position.
20 This heavy mounting bracket is suspended
21 out on an angle that will cause the shock to ease out.
22 The axle center you can see the edges here and here is the
23 actual cap that covers the axle end and the center of that
24 area is where the centers in the machine have to attach.
CENTRAL VIRGINIA REPORTERS (540)380-5017 229 124 Mr. Bowles - Direct
1 Q So after you remove these, this would come
2 up like this?
3 A This comes up.
4 Q And you have to stick a bolt in it to keep
5 it up away from the cap?
6 A Correct.
7 Q And when you say you're uncapping, that is
8 what you're referring to?
9 A Yes, that and removing the cap. These vary
10 from locomotives, various caps. Some are small thin disks
11 with small screws, some are this way, some have a four leg
12 effect that goes in with spacers, some EMDs have a bent
13 design, but they are all attached basically the same, it's
14 just different types of mounting brackets.
15 Q On the date you were injured, you were
16 operating the wheel truing machine?
17 A Yes, I was.
18 Q And you were in the wheel shop building, is
19 that correct?
20 A Yes, I was.
21 Q Was there anybody else in the wheel shop
22 building to help you on that date?
23 A No.
24 Q You were the only person in the wheel shop
CENTRAL VIRGINIA REPORTERS (540)380-5017 230 125 Mr. Bowles - Direct
1 building?
2 A That is correct.
3 Q Again using Plaintiff's Exhibit Number .
4 Two--
S MR. TOBIN: May I approach the witness,
6 Your Honor?
7 THE COURT: Yes.
8
9 BY MR. TOBIN:
10 Q Can you just describe the general task you
11 were doing at the time you were injured on June 23, 1993?
12 Let me ask you this first: About what time did your
13 injury occur?
14 A About one a.m.
15 Q Okay, what was the general task you were
16 doing at the time that your injury occurred?
17 A The shock absorber was extended.
18 Q Did it have that pin in it that was keeping
19 it up?
20 A With a bolt behind it holding it in
21 position. This had to be lifted up enough to release the
22 bolt. Once the bolt was released then you had to compress
23 the shock absorber back against the journal cap and that
24 is against this rubber as I said, and quite often that is
CENTRAL VIRGINIA REPORTERS {540)380-5017 231 126 Mr. Bowles - Direct
1 as stiff as compression is because you have it compressed
2 in both directions, and once you have got it pressed back
3 into position then it has to be compressed back up until
4 these four bolt holes line up after this inner cap is put
5 on. That goes on first.
6 Q What happens after these four bolt holes
7 line up?
8 A Then you have to put a bolt in one position
9 or the other to hold everything in place until you can
10 start the other three. That has to be done when it's
11 aligned.
12 Q So how many hands when you're doing that do
13 you have on this shock absorber here?
14 A One.
15 Q What hand was that?
16 A Right hand.
17 Q What did you have in your other hand?
18 A The bolt.
19 Q Okay. So what were you doing with your
20 right hand at the time you were injured then?
21 A The right hand you have to-- this shock
22 even after the bolt is removed will still stay out at a
23 certain angle, not as high as it was, it will drop some,
24 but you have to compress it back in and then press up
CENTRAL VIRGINIA REPORTERS {540)380-5017 232 127 Mr. Bowles - Direct
1 while it's against this face. These bolts are only about,
2 I think in this locomotive, about possibly an inch and
3 a-half, so you have to have this flat against the plate to
4 get this bolt started so you have to be in a position to
5 see the alignment and to start the bolt.
6 Q About how big is this shock absorber we are
7 looking at here?
8 A A shock is-- in that position, over 18
9 inches, possibly two feet I would say fully extended, 18
10 inches collapsed, and that is a guess, an estimate.
11 Q And how big around are they?
12 A They are approximately three inches round
13 at the large portion, at the top half, and the bottom half
14 is somewhat smaller so it will actually go up inside the
15 other half.
16 Q Can you tell the jury how you were injured
17 on June 23, 1993?
18 A Doing exactly the process I just described,
19 removed the bolt that was holding the shock out,
20 compressed the shock back into the axle, compressed
21 upwards and install the bolt.
22 Q And at what point in that process did you
23 experience pain?
24 A About the end of the compression stroke
CENTRAL VIRGINIA REPORTERS (540)380-5017 233 128 Mr. Bowles - Direct
1 when I was starting the bolt.
2 Q Can you describe for the jury the
3 exertional level that you require to compress that shock?
4 MR. BALLOU: Objection, calls for
5 speculation, Your Honor.
6 THE COURT: I don't know if it does or
7 not.
8 MR. TOBIN: Your Honor, he was the one that
9 did it, if he doesn't know it, I don't know who
10 would.
11 MR. BALLOU: Is he calling for pounds or--
12 MR. TOBIN: No, the exertional level.
13 Describe the exertion.
14 THE COURT: I think he can testify as to
15 how much time or effort he exerted in doing a
16 particular task and I think that is what the
17 question was that was asked and so I overrule the
18 objection.
19
20 BY MR. TOBIN:
21 Q Can you describe the exertion that was
22 required to compress the shock at the time of your injury?
23 A It was extreme. It was a very awkward
24 position. It's a dangerous position in my opinion.
CENTRAL VIRGINIA REPORTERS (540)380-5017 234 129 Mr. Bowles - Direct
1 MR. BALLOU: I object to speculation and
2 opinion.
3 THE COURT: I overrule that objection. He
4 is testifying as to what he was doing. He can
5 certainly testify as to whether he was doing
6 something safely or not safely, whether the
7 position he was in was safe or not with respect to
8 his body. I overrule that objection.
9
10 BY MR. TOBIN:
11 Q Where was the location of the pain that you
12 experienced at that time?
13 A In my lower right back and upper portion of
14 my right hip.
15 Q And what kind of pain did you feel?
16 A A sharp, burning pain.
17 Q And that was-- if you could stand up and
18 indicate to the jury about where in your back that you
19 experienced the pain.
20 A About here.
21 MR. TOBIN: May I approach the witness,
22 Your Honor?
23 THE COURT: Yes.
24 MR. TOBIN: That is the accident report.
CENTRAL VIRGINIA REPORTERS (540)380-5017 235 130 Mr. Bowles - Direct
1 MR. BALLOU: Okay.
2
3 BY MR. TOBIN:
4 Q Ron, I'm showing you what's been marked
5 Plaintiff's Exhibit Number 10. Is that a copy of the
6 personal injury report filled out after your accident?
A
8 Q And who filled this accident report out?
A
10 Q He recorded this information?
A
12 Q And did you sign it after he wrote this
13 back down?
14 A Yes, I did.
15 MR. TOBIN: I move that Plaintiff's Exhibit
16 Number 10 be marked into evidence.
17 MR. BALLOU: No objection Your Honor.
18 THE COURT: ··Bring that up here so I can
19 initial it. Exhibit Number 10 is a personal
20 injury report dated 6/23/93 and it's a big blow up
21 of the report.
22 (The referred-to exhibit was marked as
23 Plaintiff's Exhibit 10 and entered into the
24 Record.)
CENTRAL VIRGINIA REPORTERS (540)380-5017 236 131 Mr. Bowles - Direct
1 BY MR. TOBIN:
2 Q You mentioned you filled the accident
3 report out with C. P. Saunders?
4 A That is correct.
5 Q Who is C. P. Saunders?
6 A He was my test line supervisor that night.
7 Q And that is the individual that filled that
8 information out with you?
9 A Yes, it is.
10 Q After your accident let me ask you this:
11 Who is Bob Corea?
12 A He was the superintendent at Shaffers
13 Crossing at that time.
14 Q Was he in charge basically of Shaffers
15 Crossing then?
16 A Yes.
17 Q And after your accident did you have a
18 conversation with Mr. Corea?
19 A Yes, I did.
20 Q And what was the nature of that
21 conversation?
22 MR. BALLOU: Your Honor, I would object
23 here, I think we may need to be heard on this
24 matter outside the presence of the jury.
CENTRAL VIRGINIA REPORTERS (540)380-5017 237 132 Mr. Bowles - Direct
1 THE COURT: Well, we might be able give you 2 mileage after all. We are going to send the jury 3 out now and I'll hear what this argument is.
4 (The Jury was excused from the Open
5 Courtroom.)
6
7 THE COURT: Okay, the question was did you 8 have a conversation with Bob Corea, what did he
9 say, and you made an objection.
10 MR. BALLOU: We expect the testimony to be
11 that Mr. Corea said what we have is a bad
12 procedure, and this is a statement made after the
13 incident. Mr. Corea was head of Shaffers Crossing
14 at that time. It falls into the area of 15 subsequent remedial measures that was done as part
16 of the-- first of all, the railroad denies the 17 statement was made, but to the extent that the 18 testimony comes in, it would be part of any
19 investigation of this accident to make changes to
20 the work process to the extent the railroad
21 thought it appropriate to do so, and statements
22 made or opinions given in connection with that
23 investigative process that would then lead to
24 changes are not admissible.
CENTRAL VIRGINIA REPORTERS (540)380-5017 238 133 Mr. Bowles - Proffer
1 THE COURT: Let me hear the testimony first
2 so why don't you have a seat. The jury is
3 outside, you continue on with your questioning and
4 when we get to the point that goes beyond your
5 objection let me know and then I'll hear the
6 objection so I will know precisely what we are
7 talking about.
8
9 BY MR. TOBIN:
10 Q I think you had already indicated Mr. Corea
11 was the superintendent?
12 A That is correct.
13 Q Of Shaffers Crossing?
14 A That is correct.
15 Q And following your accident of June 23,
16 1993, did you have a conversation with Mr. Corea?
17 A Yes, I did.
18 Q And was it regarding your accident?
19 A Yes.
20 Q And what was the nature of that
21 conversation?
22 A I had two conversations, one the morning of
23 the accident, a short conversation about how the accident
24 happened, did I need to see the doctor or did I want to
CENTRAL VIRGINIA REPORTERS (540)380-5017 239 134 Mr. Bowles - Proffer
1 see the doctor, and he wanted me to show him what had
2 happened. The morning that I went up to visit with 3 Mr. Corea and the other two men that was in the office we
4 discussed how I was doing, what doctor I wanted to go see,
5 and when I told him that I needed to go to the doctor and
6 I realized that probably I would be investigated and
7 possibly fired.
8 Q Do you want a drink of water?
9 A He told me that--
10 Q Just let me direct your attention
11 specifically to the conversation regarding the poor
12 procedure and with regard to whether you had violated any
13 safety rules.
14 A When I made that statement he said you
15 won't be investigated, no safety rule has been broken and
16 you've done nothing wrong.
17 Q Okay, did he say anything else?
18 A I can't recall what else he said.
19 Q Did he ever indicate to you that he felt it 20 was a poor procedure?
21 A Oh yes, he did, yes, I am sorry, he sure
22 did. He said~- when he said you haven't broken any safety 23 rules, you're not going to be investigated now or ever
24 because we have had a poor practice of handling shock
CENTRAL VIRGINIA REPORTERS {540)380-5017 240 135 Mr. Bowles - Direct
1 absorbers that will stop. 2 MR. TOBIN: That would be the nature of the
3 testimony, Your Honor.
4 THE COURT: All right, thank you. You can
5 step down.
6 MR. BALLOU: The statement was made in
7 connection with whether there were going to be
8 changes made to this work process and that is the
9 whole reason for subsequent remedial measures. 10 First of all, with respect to any statement by
11 Mr. Corea, whether there was going to be an
12 investigation, whether there was going to be any
13 suggestion of safety rule violations, the railroad
14 is not planning on putting into evidence, unless
15 it comes out ·through the plaintiff's own evidence,
16 that there are safety rule violations, and I have 17 advised Mr. Tobin of this. 18 MR. TOBIN: But I didn't know what you
19 would consider to be the evidence of contrib. If
20 we can stipulate there is no evidence at this
21 point in time then this is probably something we 22 don't need to get into.
23 MR. BALLOU: And also the statement about
24 we have a poor procedure I think is improper as
CENTRAL VIRGINIA REPORTERS (540)380-5017 241 136 Mr. Bowles - Direct
1 well because that comes after the accident in 2 connection with the investigation of this matter,
3 and any statements made by Mr. Corea that then
4 lead down the road to changes in the work process
5 are self critical in nature, and the whole reason 6 for having protection against this is so that 7 employers will make changes to the work process,
8 and to the extent that it was beforehand that is a
9 different matter, but the statements made 10 afterwards are improper.
11 MR. TOBIN: Your Honor, it would be our
12 position, two things, one, it's not-- he is the
13 superintendent at Shaffers Crossing and therefore
14 I think what he says would be an admission, and 15 this isn't being offered for the truth of the
16 matter asserted therein, the fact that it was just 17 said is why it's being proffered.
18 MR. BALLOU: For that reason we would
19 suggest that it's completely irrelevant, if it's
20 not being offered for the truth of the matter
21 there is no purpose in offering it.
22 THE COURT: Well, in fact most of the
23 things that come in like that aren't really being
24 offered for truth of the matter, but that is a
CENTRAL VIRGINIA REPORTERS (540}380-5017 242 137 Mr. Bowles - Direct
1 good point, if you are not offering the statement
2 for the truth of the matter, usually that point is
3 made when you're trying to show notice to somebody
4 certainly in these type cases. Are you sticking
5 by that, this is not being offered for the truth
6 of the statement?
7 MR. TOBIN: I think it's more of an
8 admission than that. He is the superintendent at
9 those car shops, I think he is certainly in a 10 position to make an admission and he has a
11 position that is high enough up where he can make
12 an admission on the behalf of the defendant.
13 THE COURT: Why is it not an admission? 14 MR. BALLOU: Because, Your Honor, it's made 15 in connection with the railroad looking into what
16 happened in this particular incident, which as you
17 know from the hearings that you have held earlier 18 in this case, there were changes made to the work
19 procedure, and we would suggest this is the first
20 step in changes that go to the work procedure.
21 This statement is not admissible for any purpose
22 because it was made after the incident, it can't
23 therefore go to show notice, it was made as part
24 of what the railroad did to change the work
CENTRAL VIRGINIA REPORTERS (540)380-5017 243 138 Mr. Bowles - Direct
1 procedure, and therefore it's related to
2 subsequent remedial measures.
3 It is self critical in nature and the whole 4 reason to have a privilege for self critical type
5 analysis is to prevent exactly this type of
6 situation from occurring where supervisors would 7 investigate situations afterwards, make statements
8 that may be damaging and they could be used
9 against them. 10 THE COURT: You lost me on that one. It
11 may well be that there are just different names
12 for what we are talking about, but I'm not sure I
13 understand a self critical privilege. Explain
14 that to me or tell me more what you're talking 15 about.
16 MR. BALLOU: The self critical analysis
17 privilege has never been fully discussed in
18 Virginia.
19 THE COURT: Let me see what you got.
20 MR. BALLOU: I do offer you the case of
21 Southern Railroad Company versus Lanum which is a
22 Fifth Circuit case at 403 2d, 419, which is a case
23 that deals with the discovery of railroad accident
24 reports, and within that case the Fifth Circuit
CENTRAL VIRGINIA REPORTERS {540)380-5017 244 139 Mr. Bowles - Direct
1 holds that opinions made and investigated railroad
2 accident reports afterwards are not even
3 discoverable, and if they are not even
4 discoverable they are not admissible into
5 evidence. We would suggest, Your Honor--
6 THE COURT: You are talking about opinions
7 by various employees who have made an
8 investigation preparing a report and funneling
9 those upwards for somebody farther up the chain of
10 command to use in making their decision, is that
11 right?
12 MR. BALLOU: It would be any investigative
13 report, not just ones that are along the way, even 14 if it's one at the end of the chain or at the 15 beginning of the chain. Any statements made about
16 the privilege.
17 THE COURT: Is it under which-- oh I see, 18 you highlighted it.
19 MR. BALLOU: I have highlighted it, Your
20 Honor, and the purpose of this is so that
21 supervisors and employees can work together to try
22 to have a safe workplace.
23 THE COURT: They are equating this was
24 qualified immunity for discovery and work product
CENTRAL VIRGINIA REPORTERS (540)380-5017 245 140 Mr. Bowles - Direct
1 of an attorney and they are saying impressions of
2 claims agents or investigators.
3 MR. BALLOU: And in practicality it's no 4 different than any other supervisor that would
5 look at the process and say we are going to make a 6 change because this procedure is not good, that 7 statement could not come in, and it would be
8 improper to allow that statement to come into
9 evidence.
10 THE COURT: I think that you've got really
11 an interesting argument. I don't think it's
12 right, but it's really interesting. What this
13 says is this says that accident investigators
14 should be free to prepare the information and
15 present it to in effect whoever is going to make
16 the decision as to how to do this, what should be
17 done, and if we took this confidential information
18 that is prepared by the accident investigators who
19 then submit it to their supervisors charged with
20 making decisions as to what to do with the case,
21 effective accident evaluation would be impaired
22 and it would hamper or prevent future accidents.
23 That is different than what we have here.
24 We don't have a confidential communication-in the
CENTRAL VIRGINIA REPORTERS (540)380-5017 246 141 Mr. Bowles - Direct
1 course of an accident investigation, we have, I'm
2 gathering, the superintendent in charge at
3 Shaffers Crossing, a high management official,
4 looking at something and telling the person who
5 was injured that this is a poor procedure, and I
6 wrote down we have a poor procedure for putting
7 these shocks in and it will change. That may not
8 be his exact words, but it was something like
9 that.
10 MR. BALLOU: It was something like that and
11 the last part of it is the whole reason for the
12 objection, and it will change, and that suggested 13 subsequent remedial measures are going to be
14 taken. And again-- 15 THE COURT: I understand your point. I
16 think that is stretching subsequent remedial 17 measures a bit. I am having trouble with this 18 objection because you made an argument to begin
19 with that I have since forgotten because we got
20 carried away on another part to prevent this from
21 coming in.
22 Then on your second one the plaintiff said
23 he was talking about the fact it was made and not
24 the truthfulness of it which threw the whole thing
CENTRAL VIRGINIA REPORTERS (540)380-5017 247 142 Mr. Bowles - Direct
1 off in a spin and then I think I browbeat him into 2 taking that part away so I could understand what
3 we were talking about, so all I've ruled on this 4 far is your objection to this as it relates to
5 subsequent remedial measures.
6 MR. BALLOU: And I'm not exactly sure for 7 what purposes it's being admitted because the
8 plaintiff has said that it's not being offered for
9 the truth of the matter and there is no reason for 10 it to come into evidence.
11 THE COURT: I'll have to admit if it's not
12 being admitted for the truth of the matter there
13 is no reason for it to come in and it's just a
14 waste of time.
15 MR. TOBIN: I will withdraw that, I think
16 I'll admit it because it was an admission on the
17 part of the plaintiff. 18 MR. BALLOU: And it's not an admission
19 because there is no indication about how long
20 Mr. Corea had been down there, what information he
21 had about the shock compressing procedure, exactly
22 what he had in front of him, and it's just kind of
23 a statement picked out of a thin air.
24 MR. TOBIN: Mr. Corea can explain that.
CENTRAL VIRGINIA REPORTERS (540)380-5017 248 143 Mr. Bowles - Direct
1 THE COURT: Okay, well, I wrote down the
2 first conversation he had with Mr. Corea who was
3 his superintendent at Shaffers Crossing was on the
4 morning of the accident, he explained how it
5 happened, he asked me if I wanted see a doctor,
6 took him down to show him what happened and said I
7 was afraid of being fired and being investigated,
8 and he said you won't be investigated you haven't
9 broken any safety regulations, we have a poor
10 procedure for putting these shocks on and it will 11 change, and so that is what I am looking at. Is
12 that what you all got out of that testimony? 13 MR. TOBIN: Yes, Your Honor.
14 MR. BALLOU: First of all, any statements 15 about him being afraid he is going to be fired, he
16 wasn't fired, and that is just no reason other 17 than to inflame the jury, there is no suggestion--
18 THE COURT: Let's don't go off on that, I
19 am still on the one point.
20 MR. BALLOU: I'm trying to work through it
21 bit by bit and I'll be happy to do whichever part,
22 but the whole statement, we have a poor procedure
23 and it will change is part of the subsequent
24 remedial measures, and then changes were made.
CENTRAL VIRGINIA REPORTERS (540)380-5017 249 144 Mr. Bowles - Direct
1 THE COURT: And not an admission by the
2 defendant?
3 MR. BALLOU: It is a statement made by
4 Mr. Corea, but nevertheless it's a subsequent
5 remedial measure because it leads to the change.
6 Even if-- not every admission, if it is one, is
7 admissible.
8 THE COURT: What is your position in the
9 case that there was no poor safety procedure, and
10 I mean if your position is that--
11 MR. BALLOU: That there was no notice prior
12 to this incident that this was a poor procedure
13 and, one, we disagree that it is a poor procedure,
14 but there is no notice to the railroad prior to
15 this incident then it is a poor procedure, as well
16 and any statements made afterwards looking at the
17 incident that ultimately lead to changes are not
18 admissible.
19 THE COURT: I am going to allow it in as an
20 admission, I think it's an admission of the fact
21 that he says we have a poor procedure for putting
22 on these shocks and it will change is a statement
23 by the railroad with respect to this particular
24 incident, so I overrule your objection.
CENTRAL VIRGINIA REPORTERS (540)380-5017 250 145 Mr. Bowles - Direct
1 The fact that it was a subsequent remedial
2 measure, we are talking about minutes or hours
3 from the time of the accident during his same
4 shift. You made an earlier argument on this and I
5 totally disregarded it in order to get the
6 evidence in and then you were going to get back to
7 it and I'm not sure I have ruled on your earlier
8 argument.
9 MR. BALLOU: And I believe it's all the
10 same, it's a part of the investigative process.
11 THE COURT: Okay.
12 MR. BALLOU: That a person of
13 responsibility comes in, does an investigation, is
14 a party to the investigative process and makes a
15 statement. It's improper to allow that statement
16 to come in.
17 THE COURT: I considered all that when I
18 made that ruling.
19 MR. BALLOU: The rest of it I presume is
20 fluff, that he is worried that he is going to be
21 fired.
22 THE COURT: Why is that relevant?
23 MR. TOBIN: That is part of the reason.
24 THE COURT: Why was he afraid he was going
CENTRAL VIRGINIA REPORTERS (540)380-5017 251 146 Mr. Bowles - Direct
1 to be fired?
2 MR. TOBIN: For being injured. Part of the
3 reason he didn't go to the doctor was that he was
4 afraid that if he reported a back injury he may
5 get fired.
6 THE COURT: That is not a policy or
7 anything, is it?
8 MR. BALLOU: No, and there is not going to
9 be any evidence to that effect.
10 THE COURT: I think that is a red herring
11 to throw something out like that.
12 MR. TOBIN: I will instruct him not to talk
13 about that.
14 THE COURT: I agree with Mr. Ballou about
15 that. He said I was afraid of being fired and
16 afraid of being investigated because he got
17 injured.
18 MR. BALLOU: I also think any statements
19 about there were no safety rule violations is-- we
20 are not going to present any affirmative evidence
21 that he was charged with a safety rule violation.
22 MR. TOBIN: I didn't hear anything you
23 said, Robert.
24 MR. BALLOU: I said we're not going to
CENTRAL VIRGINIA REPORTERS (540)380-5017 252 147 Mr. Bowles - Direct
1 present any evidence that he was charged with a
2 safety rule violation and we have told you that
3 we're not going to be presenting that evidence,
4 and to the extent he testifies today to
5 something--
6 MR. TOBIN: But that is what I don't know,
7 I don't know how you interpret what he says as to
8 whether you think it's contrib or not. So if
9 you're telling me there is nothing in his
10 testimony thus far, we have gone through the
11 accident, that would lead you to believe he has
12 contributed to the accident then we don't need to
13 get into the safety rule violation thing.
14 MR. BALLOU: And I don't want to be
15 misinterpreted, Judge, every employee has a duty
16 to look out for his own safety.
17 THE COURT: Sure.
18 MR. BALLOU: We are not throwing up
19 contrib, we are not throwing out contrib, but
20 there is not going to be any evidence that we are
21 bringing in to say that he was charged with a
22 safety rule violation.
23 THE COURT: It is not yet an issue, I find
24 it hard to believe it won't be an issue that he
CENTRAL VIRGINIA REPORTERS (540)380-5017 253 148 Mr. Bowles - Direct
1 did something unsafe, but it's not yet an issue
2 that he did anything unsafe, and so until that
3 becomes an issue in the case there is no evidence
4 as to what a safety rule is at the railroad, how
5 that might effect what he is doing, and so the
6 statements that he gave of his testimony that he
7 said I was afraid of being fired, of being
8 investigated and he said you won't be
9 investigated, you haven't broken any safety
10 regulations, none of that is relevant to the issue
11 as yet, but it certainly could become an argument
12 if evidence is presented in such a way to indica~e
13 that he was doing something unsafe, then it
14 certainly would seem reasonable in rebuttal to
:. 5 hC:.t.ve tl!2 company, having said thaL, that h~ didn'':.
16 break none of our safety rules.
17 You may have to go into some detail and
18 explain what safety rules are at the time, but I
19 think, and I hate to use the phrase in a vacuum,
20 but in a vacuum at this time the only thing in
21 there that is admissible is the admission he said
22 he talked with Mr. Corea, told him how the
23 accident happened, asked him if he wanted to see a
24 doctor, show me what happened, and he said we have
CENTRAL VIRGINIA REPORTERS {540)380-5017 254 149 Mr. Bowles - Direct
1 a poor procedure for putting these shocks on and
2 things will change, I think that is admissible.
3 MR. TOBIN: Our position would be, Your
4 Honor, that contrib has been injected with the
5 comments on the pry bar and about why a pry bar
6 wasn't used and that could be something that was
7 used in closing to indicate that he contributed to
8 this accident or they have a long list of safety
9 rules and they thought--
10 THE COURT: How is it? I mean I don't
11 know, if I put blinders on and just look at the
12 evidence in this case I don't have anything before
13 me that says anything about safety regulations or
14 safety rules. You all know what they are, you
15 have got the books with those safety rules, the
16 jury has to decide this case just on what they
17 hear and they don't know anything about safety
18 rules, and in order to get into the question of
19 whether he violated safety rules you first have to
20 tell them what they are and what part~cular-- or
21 what the safety rules are, and I'm not quite sure
22 how you are going to get that into evidence.
23 MR. TOBIN: I guess what we could do is
24 forego that portion of examination in our case in
CENTRAL VIRGINIA REPORTERS {540)380-5017 255 150 Mr. Bowles - Direct
1 chief and then if it comes up with his witnesses
2 we can recall him for two or three questions.
3 THE COURT: If the question of whether or
4 not his practices were safe or unsafe comes up,
5 then certainly some determination by the railroad
6 as to-- it's not here yet and I'm not going to
7 allow it in at this time. We will take a look
8 later on, I have already told you that the
9 possibility exists for that statement to come back
10 in, some sort of rebuttal testimony.
11 MR. BALLOU: Thank you, Your Honor.
12 THE COURT: Now what else?
13 MR. BALLOU: I believe that is it.
14 THE COURT: All right. Well, it's 2:30, l-5 let's go ahead and take a five or 10 minute break
16 while we will have the jury out now anyhow. Maybe
17 we can go on through until we finish tonight
18 without taking a break. The Court is in recess.
19 (A recess was taken. Following the recess
20 Court and Counsel returned to the Open Courtroom.)
21
22 THE COURT: I really hate to ask this
23 question, but are there any other issues to come
24 up before we bring the jury in?
CENTRAL VIRGINIA REPORTERS (540)380-5017 256 151 Mr. Bowles - Direct
1 MR. TOBIN: No, Your Honor.
2 MR. BALLOU: I don't think so.
3 THE COURT: All right, bring the jury in.
4 (The Jury returned to the Open Courtroom.)
5
6 A DEPUTY: The jury is present and seated,
7 Your Honor.
8 THE COURT: All right, Mr. Tobin, go ahead
9 with your direct examination.
10 MR. TOBIN: Thank you, Your Honor.
11
12 BY MR. TOBIN:
13 Q Can you identify who Bob Corea is?
14 A He is the superintendent of Shaffers
15 Crossing, was the superintendent at Shaffers Crossing when
16 I worked there.
17 Q And Shaffers Crossing was where you were
18 working at the time of your accident?
19 A That's correct.
20 Q And he is the superintendent in charge of
21 Shaffers Crossing?
22 A Yes, he is.
23 Q And following your accident did you have a
24 conversation with Bob Corea about your accident?
CENTRAL VIRGINIA REPORTERS {540)380-5017 257 152 Mr. Bowles - Direct
1 A Yes, I did.
2 Q And what was the nature of that
3 conversation?
4 A He told me that they had a-- that the
5 railroad had a poor practice of handling shock absorbers.
6 Q Did you yourself ever complain to the
7 railroad regarding the procedure of compressing shocks?
8 A Yes, I did.
9 Q And to whom did you complain?
10 A To my immediate supervisors.
11 Q How many times did you complain?
12 A Numerous.
13 Q What was the nature of your complaints to
14 your supervisors?
')\ .M. 'l.'hat ti·1e shock handling ·was awkward, unsafe
16 and difficult.
17 Q What do you mean it was awkward and unsafe?
18 A The position that you had to get in as I
19 demonstrated here to compress the shock.
20 Q Why don't you demonstrate to us what you
21 felt was unsafe or awkward about the procedure?
22 MR. TOBIN: Can he step down, Your Honor?
23 THE COURT: Yes.
24 THE WITNESS: To reinstall the shock
CENTRAL VIRGINIA REPORTERS (540)380-5017 258 153 Mr. Bowles - Direct
1 absorber as it has extended from the upper half,
2 you have to bend your legs, get an arm under it
3 and compress it in to the locomotive and up
4 installing a bolt at the same time.
5
6 BY MR. TOBIN:
7 Q And you had to compress it in so that this
8 plate would be flush up against the cap?
9 A It has to be aligned, align the bolt holes
10 up, any angle at all and the thread is misaligned. It has
11 to be flat against the cap.
12 Q Prior to or before your accident did the
13 railroad respond to your complaints?
14 A No.
15 Q There has been some mention that there are
16 pry bars in the wheel shop down at Shaffers Crossing.
17 First of all, can you describe what a pry bar is?
18 A The pry bars that we use are three foot
19 bars which is approximately the length of this table. One
20 end is pointed, not sharp, but a rounded point, some
21 blunter than others, the other end has a toe approximately
22 two and a-half, maybe three inches long that tips off on a
23 slight angle to create a hook arm.
24 Q How big in diameter is the pry bar?
CENTRAL VIRGINIA REPORTERS (540)380-5017 259 154 Mr. Bowles - Direct
1 A The pry bar is probably about one inch in
2 diameter, it's a hexagonal piece of steel and then it's
3 ground round on the end.
4 Q Why didn't you use a pry bar to pry the
5 shock absorber on June 23, 1993 when you were injured?
6 A Because I had had previous problems with
7 the pry bars that I felt was unsafe.
8 Q What were those problems?
9 A On one occasion-- I need to explain one
10 thing. On these shock absorbers also--
11 Q Would a photograph assist you?
12 A Possibly, yes, for the benefit of the
13 jury. This shock absorber is not a uniform stable
14 assembly, not only does it work up and down, it spins
25 freely, and with it o~t on an angle if yo~ try to use a
16 pry bar-- if you try to use a pry bar here on something on
17 this angle, as you start up it comes right back up toward
18 you. You can't ·hold the pry bar in, the bracket in and
19 the pry bar and assemble a bolt.
20 Q Okay. Did you think it was unsafe to use
21 the pry bar because of the slipping then?
22 A Yes, I did, and I had had other incidences
23 with the pry bars that had not been good.
24 Q During the course of your railroad career I
CENTRAL VIRGINIA REPORTERS (540)380-5017 260 155 Mr. Bowles - Direct
1 think you had mentioned earlier it was 26 and a-half
2 years?
3 A Yes.
4 Q Did you at any time during the course of
5 your career receive any training with regard to how to
6 compress a shock?
7 A None whatsoever.
8 Q I want to direct your attention back to the
9 time of the accident.
10 A Okay.
11 Q What did you do after you experienced the
12 pain in your back?
13 A I completed the three bolts, tightened
14 them, took the machine down, which is a gradual process,
15 you can't just stop the machine, you have to let the cut
16 continue.
17 Q Do you do that with mechanisms?
A
Q
20 A The same way you fed it in you have to feed
21 it back out, but you have to feed it out at the end of its
22 cut or it's going to leave two different sizes on the
23 flange and the flange rolling on the idler roller depends
24 on whether it rolls truly in the cutters, a step in the
CENTRAL VIRGINIA REPORTERS (540)380-5017 261 156 Mr. Bowles - Direct
1 flange will cause considerable damage to the wheel and to
2 the cutter when it comes across, so I had to gradually let
3 the machine back down.
4 Q The wheel machine you are talking about?
5 A Yes, correct, away from the wheel. I
6 washed my hands and I went to Mr. Saunders office on the .
7 test line to fill out this accident report.
8 Q And Mr. Saunders was your supervisor at
9 that time?
10 A Yes, he was.
11 Q What did you do after filling out your
12 accident report?
13 A I returned back to the wheel machine and
14 apprentice Bill Warren was sent with me.
Q Did ~ou finish the day at that time?
16 A Yes, I did.
17 Q What did you do the rest of your shift?
18 A Operated the buttons, did small light
19 things that I possibly could do, I don't recall exactly
20 what they were. The apprentice was sent there to do the
21 cap work and shock work and so forth.
22 Q Did you go to the doctor at that time?
23 A No, I didn't.
24 Q How come? L ______~
CENTRAL VIRGINIA REPORTERS (540)380-5017 262 157 Mr. Bowles - Direct
1 A We had one accident report on the board and
2 the railroad shops are in stiff competition with each
3 other on accident reports. I would have been number two,
4 going to the doctor would have constituted a recordable
5 injury and there is considerable pressure to not do that.
6 Q Were you hopeful that your pain may go
7 away?
8 A Yes, I was.
9 Q And did you discuss that with Mr. Saunders?
10 A Yes, I did.
11 Q What did you do the next day?
12 A I reported in at 11 o'clock, again was
13 given an apprentice and returned back to the wheel machine
14 and did basically the work that I did the night before
15 after my injury.
16 Q And that was operating the buttons?
17 A Operating the machine, and in the process
18 of trying to teach Mr. Warren how to run the machine.
19 Q So after this accident you were assigned a
20 helper, an apprentice?
21 A Yes.
22 Q Does the wheel machine have a control box
23 or device?
24 A Yes, it does.
CENTRAL VIRGINIA REPORTERS (540)380-5017 263 158 Mr. Bowles - Direct
1 Q And is that what you were doing after the
2 accident?
3 A Yes.
4 Q And you did that for a couple days, is that
5 correct?
6 A I did that for two days until the end of
7 that work week.
8 Q What happened after the two days?
9 A I had a nine day vacation, I took off my
10 nine days.
11 Q How was your pain during that nine day
12 period?
13 A Gradually growing worse each day.
14 Q Was it still about the belt line of your
15 back?
16 A Belt line in my back, the pain had started
17 in the back of both hips and some radiation into the left
J8 leg in the thigh area.
19 Q And then after your nine day vacation did
20 you return to work?
21 A Yes, I did.
22 Q And what type of work were you doing at
23 that time?
24 A The same, with an apprentice.
CENTRAL VIRGINIA REPORTERS (540)380-5017 2S4 181 Mr. Bowles - Cross
1 limited now. Every aspect of my life has changed.
2 MR. TOBIN: I don't have any further
3 questions, Your Honor.
4 THE COURT: Mr. Ballou?
5 MR. BALLOU: Thank you, Your Honor.
6
7 CROSS EXAMINATION
8
9 BY MR. BALLOU:
10 Q Mr. Bowles, you began work with the
11 railroad in 1967?
12 A Yes, I did.
13 Q You first came into the railroad through an
14 apprentice program, is that right?
16 And then you became a machinist?
18 And that is considered a skilled position,
19
21 The job of machinist at Roanoke I believe
22 you said is to service locomotives, is that correct?
23 A Service and maintain the locomotives, yes.
24 Q Conduct inspections and change power
CENTRAL VIRGINIA REPORTERS (540)380-5017 265 182 Mr. Bowles - Cross
1 assemblies and so forth?
2 A And do the maintenance, yes.
3 Q And part of the job of machinist was to
4 work the wheel truing machine, is that right?
5 A Yes, it is.
6 Q And I believe it was in 1969 that you first
7 began the job as a wheel truer?
8 A Probably around '69 on up, regular basis.
9 Q You worked that job for roughly 24 years?
A
11 Q Okay. And your regular shift was third
12 shift?
13 A Yes, sir.
14 Q And in 1993 the other persons that were
15 work~~g fulJ-ti~a were Messrs. Pauley and Pack, is that
16 right?
17 A That is correct.
18 Q And James Simmons was your relief man?
19 A Yes, he was.
20 Q He worked your off days?
21 A Yes, sir.
22 Q The training for the wheel truing job is
23 one that includes a lot of on-the-job training, is that
24 right?
CENTRAL VIRGINIA REPORTERS {540)380-5017 266 183 Mr. Bowles - Cross
1 A It•s all on-the-job training.
2 Q In fact, apprentices come through and they
3 work with a skilled machinist such as you to learn the
4 job?
5 A That's correct.
6 Q And the railroad trains on how to run the
7 machine; you have talked about punching the buttons and
8 raising the hydraulics and getting the centers, that is
9 done through classroom, isn•t it?
10 A No, sir.
11 Q It's not?
12 A No, it•s not done through classroom.
13 Q But they do provide some classroom on how
14 to run the machine, is that correct?
15 A No, sir; they do not.
16 Q But the skilled machinists such as you
17 teaches a man running a wheel machine how to uncap the
18 centers, is that correct?
19 A Yes, sir.
20 Q And that involves the process you mentioned
21 earlier of unscrewing the four bolts on the journal cap
22 and swinging the shock absorber out of the way, is that
23 right?
24 A That, among the rest of the uncapping
CENTRAL VIRGINIA REPORTERS (540)380-5017 267 184 Mr. Bowles - Cross
1 process, yes.
2 Q And a skilled machinist such as you trains
3 the apprentice that come through the wheel truing machine
4 on how to do that job?
5 A That's correct.
6 Q And having worked that job for 24 years,
7 you knew well how to do the job in the wheel truing
8 machine, is that correct?
9 A I knew well how to do it with the means we
10 had to work with, yes, sir.
11 Q And in fact I believe you helped to train
J2 Mr. Simmons?
13 A That's correct.
14 Q And you helped to train Mr. Dowdy on how to
16 A That's correct.
17 Q The entire job, including capping and
18 uncapping and compressing the shock absorbers?
19 A That's correct.
20 Q Now, a locomotive that comes to the wheel
21 truing building has already been through what is called
22 the test line, is that correct?
23 A In most cases, yes. There is some cases
24 that it doesn't.
CENTRAL VIRGINIA REPORTERS (540)380-5017 268 185 Mr. Bowles - Cross
1 Q But typically it comes through the test
2 line?
3 A That is correct.
4 Q And the test line is what is set up to do
5 the 90 day inspections on locomotives, is that correct?
6 A Yes, sir.
7 Q Okay. And every 90 days every locomotive
8 comes in and it's run through the federally required
9 inspections, is that right?
10 A Yes, sir; it is.
11 Q Routine maintenance is performed, is that
12 correct?
13 A That•s correct.
14 Q And then the locomotive is washed before it
15 comes off the test line, is that correct?
16 A That•s correct.
17 Q And if the wheels need to be trued, get
18 them rerounded and reestablish the flange as you have
19 mentioned, it•s then sent to the wheel machine?
20 A That is correct.
21 Q It comes into the wheel machine building on
22 what is called raised rails, is that right?
23 A That is correct.
24 Q The rails are about waist high, is that
CENTRAL VIRGINIA REPORTERS (540)380-5017 269 186 Mr. Bowles - Cross
1 correct?
2 A Approximately waist high, yes.
3 Q And that means that there is an area that
4 the machinist, skilled machinist such as you, can walk
5 around the locomotive to gain access to the end caps, is
6 that correct?
7 A That's correct.
8 Q And these end caps are around chest to
9 shoulder level?
10 A Yes, sir.
11 Q The locomotive is hooked to a rabbit and
12 it's moved through the wheel machine by the rabbit as you
13 true one wheel after another, is that correct?
14 A Yes, sir; that is correct.
15 Q ~nd for ab~ut th~ past, is it 15 years or
16 so, before you quit working with the railroad that the
17 locomotives began to have shock absorbers?
18 A Probably somewhere in that neighborhood
19 shocks as we see them now. Years ago the--
20 Q When you first began they didn't have
21 shocks?
22 A Yes, they had shocks to an extent. There
23 was a-- it didn't involve the wheels, but they had what
24 they called friction snubbers.
CENTRAL VIRGINIA REPORTERS (540)380-5017 270 187 Mr. Bowles - Cross
1 Q But the shocks that you had to remove began
2 to come through about 15 years before you left?
3 A I would estimate probably about 15 years
4 ago, yes.
5 Q And to make sure I understand just so that
6 you and I are clear, what happens with the uncapping is
7 you remove this-- this is called a journal cover, is that
8 correct?
9 A No, this is a shock mount.
10 Q That's a shock mount?
11 A Yes.
12 Q You remove the four bolts from the shock
13 mount and you swing that up, place a bolt underneath here?
14 A Correct.
15 Q To secure the shock absorber as it goes
16 through the wheel truing and then you lower it, reattach
17 these for the recapping process?
18 A That's correct.
19 Q And in doing that job you would true and
20 have to recompress roughly four shocks every night?
21 A Probably, yes.
22 Q And that would be a fair average for how
23 many shocks you would compress every night for the entire
24 time that that type of locomotive was coming through, is
CENTRAL VIRGINIA REPORTERS (540)380-5017 271 188 Mr. Bowles - Cross
1 that correct?
2 A That is correct.
3 Q And would it also be a fair average for the
4 other machinists that were working on first and second
5 shift as well?
6 A I would say, yes.
7 Q And the compressing of a shock is a common
8 part of the wheel truing process, is that right?
9 A Yes, it is.
10 Q It's done with every single locomotive?
11 A Not with every single locomotive. At the
12 time I left we had some newer locomotives, GEs that cam~
13 in that had the shocks mounted above the journal box and
14 all we had to remove was a small flat center.
15 Q But you would do about four a night?
16 A If it was that locomotive, they didn't have
17 to be removed.
18 Q· Now, the compression of a shock absorber is
19 done with a slow steady movement, is that right?
20 A Yes, sir.
21 Q You are not going to move them real fast?
22 A Well, you can only move them so fast.
23 Q They are not designed to move fast, they
24 are designed in slow motion, is that right?
CENTRAL VIRGINIA REPORTERS (540)380-5017 272 189 Mr. Bowles - Cross
1 A Correct.
2 Q Now, on the day that this incident occurred
3 you reported to work at around 11 p.m., is that correct?
4 A Yes, sir.
5 Q And the pre-work routine is you have a
6 safety meeting, is that right?
7 A No, it's not.
8 Q You wouldn't go to a safety meeting?
9 A Not at the beginning of the shift. At the
10 beginning of the shift we would do exercises, we would get
11 our job assignments, we would go do our jobs and we had a
12 safety meeting after lunch break.
13 Q At that time your safety meeting was at the
14 end of your lunch break?
15 A Yes.
16 Q But at the beginning of the shift you would
17 do exercises?
A
19 Q Calisthenics to warm up to loosen your
20 back?
21 A Correct.
22 Q To get limber to be able to do your job?
23 A Correct.
24 Q And then you would go and start your job,
CENTRAL VIRGINIA REPORTERS (540)380-5017 273 190 Mr. Bowles - Cross
1 is that right?
2 A That•s correct.
3 Q And then after lunch you had a safety
4 meeting at which time you could discuss any concerns that
5 the workers had with the supervisors, is that right?
6 A That•s correct.
7 Q On the night that you were working on
8 June 23 you were working on a GP 60 locomotive, is that
9 right?
10 A I assume it was, r•m not familiar with the
11 GP numbers and so forth.
12 Q You were well familiar with that type of
13 locomotive, is that right?
14 A Not well familiar, that is not a locomotive
15 they have a lot of.
16 Q You knew what you were doing to have to
17 recompress that shock, didn't you?
18 A Yes, yes.
19 Q And the shock had extended out roughly two
20 inches, is that right?
21 A Yes, that•s correct.
22 Q So you removed the bolt and you swung the
23 shock absorber down, is that correct?
24 A That•s correct.
CENTRAL VIRGINIA REPORTERS {540)380-5017 274 191 Mr. Bowles - Cross
1 Q And you got the shock absorber down against
2 the journal, is that correct, the journal box?
3 A That's correct.
4 Q And then you started and you had to
5 compress up from there two inches?
6 A I had to compress in and up.
7 Q Two inches to get the bolt holes aligned?
8 A Approximately two inches, yes.
9 Q And there was no defects that you were
10 aware of with this particular shock?
11 A Not that I could see.
12 Q And in fact as you got the shock up you
13 were able to hold it in place and to start a bolt hole,
14 start one of the bolts, is that correct?
15 A That's correct.
16 Q And it was only at the end of that
17 procedure that you began to feel pain, is that correct?
18 A At the very end of the compression during
19 the bolt.
20 Q While you were holding the shock in place
21 you were then turning the bolt to start that, that is when
22 you began to feel pain?
23 A That's correct.
24 Q And the pain that you felt was on the right
CENTRAL VIRGINIA REPORTERS {540)380-5017 275 192 Mr. Bowles - Cross
1 side of your low back?
2 A That's correct.
3 Q And you completed tightening up the other
4 four bolts on the shock mount?
5 A That's correct.
6 Q And then you turned off the wheel machine,
7 reported your incident, is that correct?
8 A That's correct.
9 Q And then after you reported your incident
10 or when you reported your incident you filled out this
11 personal injury report, is that correct?
12 A Yes.
13 Q Okay. Now, you testified that this is the
14 handwriting of C. P. Saunders?
15 A Yes, sir.
16 THE COURT: Let me ask so that we got all
17 this straight on the record. Are you talking
18 about Plaintiff's Exhibit Number 10?
19 MR. BALLOU: Yes, I am, Your Honor, thank
20 you very much.
21
22 BY MR. BALLOU:
23 Q Okay. And when this personal injury
24 report, Exhibit Number 10, was filled out, you were
CENTRAL VIRGINIA REPORTERS (540)380-5017 276 193 Mr. Bowles - Cross
1 telling C. P. Saunders what happened?
2 A Yes, sir.
3 Q Okay, and this is your signature down here?
4 A Yes, it is.
5 Q And where it says describe what happened,
6 to give specific detailed information, this is what you
7 told him, is that correct?
8 A Yes, I guess it is, yes.
9 Q All right, and you reviewed the personal
10 injury report before you signed your name of course,
11 didn't you?
12 A I assumed he wrote down what I said, yes.
13 Q Well, you reviewed it before you signed it?
14 A I am assuming I did, yes. I don't remember
15 whether I did or not.
16 Q Okay. And as part of your discussions with
17 C. P. Saunders he asked if you would like to go to the
18 doctor?
19 A Correct.
20 Q And the check mark here is in the no box as
21 to whether you desire medical attention?
22 A Yes.
23 Q And that is what you told Mr. Saunders at
24 th~t time?
CENTRAL VIRGINIA REPORTERS (540)380-5017 277 194 Mr. Bowles - Cross
1 A That's correct.
2 Q After completing the accident report you
3 went back down to the wheel truing building, is that
4 right?
5 A Yes.
6 Q Okay. Let me back up and I'm sorry if I am
7 jumping around, but this is a job that you do by yourself,
8 is that right?
9 A That's correct.
10 Q And the only time that typically there is a
11 helper is when an apprentice is there that you're helping
12 to train?
13 A That's correct also.
14 Q But you can also call for help if need be?
A I guess you could, yes.
16 Q And there is an intercom available there?
17 A There is a telephone available.
18 Q A telephone available?
19 A Yes.
20 Q And in doing this job as you were
21 compressing up, you didn't slip, is that right?
22 A No, sir.
23 Q You didn•t trip?
24 A No, sir.
CENTRAL VIRGINIA REPORTERS (540)380-5017 278 195 Mr. Bowles - Cross
1 Q You didn't fall?
2 A No, sir.
3 Q And you didn't have to grab on to anything
4 to hold your balance?
5 A No, sir.
6 Q You went back down and you completed your
7 shift that night, is that right?
8 A With the apprentice, yes.
9 Q The apprentice came over and helped you?
10 A (The witness moves head up and down).
11 Q You didn't take the shock absorber off and
12 mark it out of service?
13 A No.
14 Q And you sent that locomotive out without
15 calling any attention to any defects that you were aware
16 of to that shock absorber?
17 A No, sir; I didn't send it out, the
18 locomotive was held.
19 Q Now, we talked a little bit about a pry bar
20 and different locomotives you could use a pry bar on, is
21 that right?
22 A In some instances you can.
23 Q And the three foot pry bar, this is a fair
24 example of the type of pry bar you would use, is that
CENTRAL VIRGINIA REPORTERS (540)380-5017 279 196 Mr. Bowles - Cross
1 right?
2 A Yes, it is.
3 Q And you talked about a long angular point
4 and then there is also a clawed end, is that correct?
6 Now, Plaintiff's Exhibit Number Two is a
7 at the shock absorber assembly, is that
8
10 Now, all the way at the bottom of the
11 picture you can see just the bottom of the wheel, is that
12 right?
13 A That's correct.
14 Q Just before that is an area called the
15 pedestal cap?
16 A That's correct.
17 Q And then you have the shock assembly?
18 A Yes.
19 Q And when you talked about using a pry bar,
20 you would put a pry bar on the pedestal cap, is that
21 correct, and then press up against the shock absorber
22 mount?
23 A I didn't use a pry bar.
?,4 Q You didn't use a pry bar?
CENTRAL VIRGINIA REPORTERS (540)380-5017 280 197 Mr. Bowles - Cross
1 A No.
2 Q That particular night?
3 A That particular night.
4 Q Okay, and on the GP 60 type locomotive you
5 would agree that you could put a pry bar on this pedestal
6 cap and press up on the shock absorber assembly?
7 A Not necessarily.
8 Q Not necessarily?
9 A No, sir; because when you lower the cap it
10 doesn't lay flat against that thing and you have to--
11 Q And so--
12 MR. TOBIN: Can he finish?
13
14 BY MR. BALLOU:
15 Q I'm sorry, go ahead, finish please.
16 A You have a great amount of tension to push
17 that shock back in because it is mounted in a rubber
18 snubber and it's hook bolted at the top, which a hook bolt
19 is a hydraulic rivet and it is bound very tightly, so when
20 you push that down that assembly will not stay down, so if
21 you put a jimmy bar or a pry bar on the bottom of the
22 pedestal cap you're going to still hold in, then you have
23 to be in this position to try to lift it up, which is more
24 awkward.
CENTRAL VIRGINIA REPORTERS (540)380-5017 281 198 Mr. Bowles - Cross
1 Q So it's your testimony then it's more 2 awkward to use a pry bar?
3 A Yes, it is.
4 Q And more difficult?
5 A In my position, yes.
6 Q Now, you worked the next two days, is that
7 right?
8 A That's correct.
9 Q And then you went on vacation for nine
10 days?
11 A That's correct.
12 Q And when you came back frorn vacation you
13 went to see your regular doctor, Doctor Monahan, is that
14 correct?
15 i have no way of knowing.
16 Q Okay. Let me show you if I could a time
17 line that I have prepared, my office has prepared,
18 Mr. Bowles, and see if you can-- and these are based upon
19 the medical records that we have in this matter, and if
20 you would like to review any particular medical record I
21 will be happy to provide it to you. We have marked
22 June 23, 1993 the date of the incident, is that right?
23 A Yes.
Q Do you recall going to see I believe it was
CENTRAL VIRGINIA REPORTERS (540)380-5017 28•2 234
1 {The Jury was excused from the Open
2 Courtroom.)
3
4 THE COURT: Okay, Mr. Ballou, the plaintiff
5 has rested and you have some motions to make?
6 MR. BALLOU: Yes, Your Honor. Your Honor,
7 at this time we would ask that the Court strike
8 the plaintiff's case, and I have provided to you a
9 copy of the case of Steve James Hall versus
10 Norfolk and Western Railway Company.
11 THE COURT: Okay.
12 MR. BALLOU: The basis for the motion to
13 strike is that the plaintiff has not proved
14 primary negligence on the railroad. The plaintiff
15 must prove that the railroad provided an unsafe
16 place to work and that that unsafe place of work
17 was the cause of the plaintiff's injury.
18 The evidence that you have in front of you
19 is that Mr. Bowles was attempting to compress a
20 shock absorber when he felt a pain in his right
21 back. This is a job that he had done for the past
22 15 years, approximately four times a day for five
23 days a week for however many days, and there are
24 tens of thousands when you include the first and
CENTRAL VIRGINIA REPORTERS {540)380-5017 283 235
1 second shift numbers of shocks that have been
2 compressed without incident.
3 The case of Steve James Hall versus N & W
4 deals with an angle cock that a plaintiff
5 attempted to turn, could not turn it and was
6 injured claiming that he injured his shoulder.
7 Judge Kiser having heard the evidence in that
8 case, which consisted of 11 alleged incidents of
9 injury involving angle cock and complaints about
10 angle cock, nevertheless struck the case finding
11 that there was no proof of negligence.
12 There is no evidence in the record f1om
13 which this jury could find, first of all, that the
14 procedure is unsafe. The plaintiff called
15 Michael Shinnick to testify who said it was
16 unsafe, that he needed a mechanical device which
17 was a pry bar. Both William Dowdy--
18 THE COURT: Is your recollection that
19 Doctor Shinnick said it was unsafe, he needed a
20 mechanical device, to wit, a pry bar?
21 MR. BALLOU: He did not say specifically
22 a pry bar, but a pry bar is a mechanical
23 device, it's a lever, and the evidence is in the
24 record that pry bars were available, in fact
CENTRAL VIRGINIA REPORTERS (540)380-5017 284 236
1 Messrs. Simmons and Dowdy testified that shocks of
2 the exact type that were being used could be
3 compressed with a pry bar.
4 There is no evidence that the railroad had
5 notice that this procedure was unsafe. The only
6 evidence in front of the jury is that there were
7 complaints from Mr. Simmons, from Mr. Dowdy and
8 Mr. Bowles that the procedure was difficult, that
9 it was hard, that it was awkward. Mr. Bowles did
10 testify that he felt that it was unsafe, but there
11 is no evidence in front of jury from which they
12 can conclude that there is notice that this
13 particular procedure itself was unsafe because the
14 complaints themselves were that it was difficult,
15 and that is my recollection of the testimony, and
16 certainly the testimony of Mr. Simmons and
17 Mr. Dowdy.
18 The evidence is very simply that the
19 plaintiff was pushing up on a shock absorber when
20 he felt a pain in his back and that is not enough
21 evidence from which this jury can conclude that
22 there is any negligence or that there was notice
23 that this was an unsafe workplace, and for these
24 reasons we would ask that the Court strike the
CENTRAL VIRGINIA REPORTERS (540)380-5017 285 237
1 case.
2 THE COURT: Any response?
3 MR. TOBIN: Yes, Your Honor. As far as the
4 notice issue goes, I think there is ample evidence
5 that there were a number and a variety of employee
6 complaints with regard to this procedure and I
7 think that is ample evidence that the railroad was
8 on notice with regard to this procedure. With
9 regard to the other issues, there was expert
10 testimony that this procedure was unsafe and
11 required use of a mechanical device.
12 t think it was clear from his testimony
13 that he wasn't referring to a claw bar which is
14 basically a metal stick. He was talking about a
15 mechanical device that would hold the shock in
16 place and compress it. There is also in evidence
17 an admission by a supervisor, Mr. Corea, that this
18 was a bad procedure. Mr. Bowles, who probably had
19 done this procedure more than anyone, testified
20 that he felt that it was awkward, it was unsafe,
21 it was difficult, and he said he complained about
22 it on numerous occasions. I think there is ample
23 evidence to get to the jury on these issues.
24 MR. BALLOU: Your Honor, first of all,
CENTRAL VIRGINIA REPORTERS (540)380-5017 286 238
1 we would suggest that the Court recall
2 Doctor Shinnick's testimony, and in fact the only
3 thing that he said was that he needed a mechanical
4 device, he didn't refer to any particular or
5 specific kind of mechanical device, and for these
6 reasons we would take exception to Mr. Tobin's
7 reference to how Doctor Shinnick testified, and
8 you'll have to rely upon your own memory for that
9 at this stage in the proceedings.
10 MR. TOBIN: Your Honor, I don't think he
11 got into the mechanical device situation
12 specifically because of the rulings on the
13 subsequent remedial measures and that is an area
14 that we specifically did not want to get into and
15 couldn't get into.
16 THE COURT: All right. I am going to take
17 the rest of our 10 minute break and try to respond
18 to your request by reading the rest of these
19 notes. Is there a particular portion of this case
20 that you refer to or-- it's 15 pages long.
21 MR. BALLOU: The analysis begins on page
22 eight in which Judge Kiser goes through, first of
23 all, the claims of failure to inspect.
24 THE COURT: And then goes on for the rest
CENTRAL VIRGINIA REPORTERS (540)380-5017 287 239
1 of the case?
2 MR. BALLOU: Goes on for the rest of the
3 case.
4 THE COURT: Let me read that. All right, I
5 have reviewed or read Page 8 through 15 of Hall
6 versus N & W and I have gone back over some notes,
7 and my notes indicate-- well, first off, the
8 motion to strike is based on the failure on the
9 part of the plaintiff to prove negligence and the
10 failure on the part of the plaintiff to show
11 notice.
12 With respect to the notice issue first,
13 Mr. Simmons testified I have discussed and given
14 oral reports it's pretty difficult to compress,
15 talking about compressing tlle shock absorber-, I
16 have asked for help before during safety meetings,
17 the supervisor was present when the plaintiff made
18 the complaints several times and then I told the
19 supervisor I had difficulty compressing the shocks
20 and they were stiff and the supervisor helped,
21 complaints were made before the plaintiff was
22 injured.
23 Then Mr. Dowdy's testimony was that I had
24 complained to the supervisor that it was awkward,
CENTRAL VIRGINIA REPORTERS (540)380-5017 288 240
1 cumbersome and heavy and made my back hurt,
2 normally he would say we'll look into it and that
3 those were repeated instructions on his part, and
4 that testimony from Doctor Shinnick was that he
5 had gone through the work task itself, the
6 procedure for the work task was unsafe with the
7 potential for injury dealing with manually
8 compressing the shock absorber and a mechanical
9 device should have been employed to compress the
10 shock absorber.
11 I'll have to admit that a pry bar is a
12 mechanical device but so is a pencil sharpener,
13 and the fact that they had a pry bar available
14 doesn't mean that was the mechanical device he was
15 talking about, and there has been testimony or
16 questions about why you can't use a pry bar. The
17 testimony from the plaintiff is that it was not
18 reasonable to use the pry bar because of the fact
19 that the shock absorber and the plate attached to
20 the bottom were pretty much free moving when you
21 pushed the pry bar, push with the pry bar the
22 shock absorber and the plate in the back would
23 move in a different direction.
24 There is also evidence from the plaintiff
CENTRAL VIRGINIA REPORTERS {540)380-5017 289 241
1 himself that he had made complaints numerous or
2 repeated times to his supervisor about-- I thought
3 it was about compressing of the shock absorber and
4 the problems that were involved in that. Let me
5 make sure I am not reading the wrong part here. I 6 have complained to my immediate supervisor about
7 it being awkward, unsafe and difficult position
8 you had to get it into to reinstall the shock, and
9 then he explained how he had showed it to him
10 before and the railroad did not respond to my
11 complaints, and then he went through explaining
12 with the pry bar.
13 Now, this issue is similar to the one in
14 Hall versus N & W, which is an April 15, 1998 l5 opinion of Judge Kiser, 97-476(R). I don•t see
16 any other designation for it. However, in this
17 case all of the employees who worked in the wheel
18 shop, there were just a limited·number, they did a
19 limited amount of this, they all did the same
20 procedure, and of the limited number of employees,
21 and I am not sure I can go through and count how
22 many there were based upon what the testimony was,
23 but there were about four or five or six people
24 whose names were mentioned as being the people who
CENTRAL VIRGINIA REPORTERS (540)380-5017 290 242
1 work the wheel truing machine.
2 Three of them were here to testify today
3 or in the last couple days, and all three of
4 them had problems with this and all three of them
5 had complained about that, and the point that
6 Judge Kiser is making in the N & W Railway case is
7 that out of millions of angle cock that were
8 turned, there are only 10 complaints, only one of
9 them being a frozen angle cock and the other 10
10 simply involved angle cock which were difficult to
11 turn but could still be turned, and that is an
12 entirely different situation with regard to
13 notice.
14 I'll have to admit if we had 10 out of a
15 million times that somebody complained about it
16 I'm not sure that you would fit into that category
17 at all. That isn't the case. These are people
18 whose job was to perform this procedure and it was
19 this procedure that they were complaining about
20 and all of them, at least the three that
21 testified, had complained to their supervisor
22 about this procedure, not once but numerous
23 times.
24 The other portion of this case deals with
CENTRAL VIRGINIA REPORTERS (540)380-5017 291 243
1 the duty of failing to diligently inspect the
2 angle cock and it's dealing with something simple,
3 you can look to see whether or not it's defective
4 and that the railroad can rely on their inspectors
5 and the railroad can rely on the federal
6 inspection times and the railroad can rely on
7 their employees to make these inspections and the
8 railroad can also rely upon the employee himself
9 doing the work looking to make sure that there is
10 nothing wrong before they do it, and quoting from
11 some other case from Jones & Jones versus Lamm at
12 69 SE 2d 430, a 1952 Virginia case, they were
13 pointing out that the employees are as well
14 qualified as anyone to detect defects. That is
., c:: .J..- 1~ot ~he same thir.g that we have ;1ere .
16 This is a work procedure that the parties
17 have complained of or that the plaintiff and
18 several others who make up the majority of the
19 work staff there had complained of. The argument
20 was N & W should have in Judge Kizer's case
21 performed a more thorough inspection and the Judge
22 went through their inspection and said they looked
23 at this stuff pretty closely, they conformed with
24 all the Federal rules for inspection and although
CENTRAL VIRGINIA REPORTERS (540)380-5017 292 244
1 they provided a reasonably safe work environment
2 for the employees they are not an insurer of the
3 employee and that the particular case where the
4 fellow was injured here, he was injured in a
5 frozen angle cock while apparently exerting too
6 much effort.
7 That's not this case and I do not think
8 that this case hits in these points. I appreciate
9 the position and I can see the circumstances
10 Judge Kiser had in front of him, but they are not
11 the circumstances that we have here, and of course
12 Judge Kizer's opinion would be of great assistance
13 and very valuable because he has a background in
14 Virginia law and because he is attempting to apply
15 Virginia law in this case, and the Court gives
16 great weight to that, but not presidential value
17 to that, and if he had an opinion directly on
18 point I would then have to consider whether or not
19 this opinion was correct as opposed to an opinion
20 from the Virginia Appellate Court, the Court would
21 be bound by it.
22 So on your question of notice, I deny your
23 motion to strike. On the question of negligence,
24 that had me going all the way through the case
CENTRAL VIRGINIA REPORTERS (540)380-5017 293 245
1 because I really was trying to find out what it
2 was that the railroad did wrong, and I think the
3 railroad has a duty to look at the work procedure,
4 especially when it's brought to their attention by
5 the employee, not a one time thing, but apparently
6 a repeated over and over complaint by three of the
7 machinists which is a large number of the
8 machinists who do this work and nothing was done
9 about it, and then I think what that does is that
10 makes both of these, both the negligence question
11 and the notice question a jury issue.
12 It is not something that the Court can rule
13 yes, there was negligence or no, there was not. I
14 think it really is a jury issue and I think a
15 reasonable man list8~lng to this evidence could
16 differ and one jury could find negligence, another
17 one could find not based upon the facts, and the
18 same way with regard to the notice, although I
19 think the notice is a whole lot closer. In
20 addition to the negligence issue you have got
21 Doctor Shinnick's testimony, I didn't go back
22 through his statements and try to pick up those
23 points and you all were obviously keeping closer
24 track of the language and making notes as to time,
CENTRAL VIRGINIA REPORTERS {540}380-5017 294 246
1 but Doctor Shinnick's testimony was that the
2 procedure or work or task he reviewed was unsafe,
3 there was potential for injury and he went into
4 that mechanical device portion.
5 I overrule your motion and we'll put a copy
6 of this memorandum opinion in the file just-- I
7 don't know how difficult it is to find, but I'll
8 mark that filed.
9 MR. BALLOU: Thank you, Your Honor.
10 THE COURT: Are you ready to call a witness
11 and, if so, how long will your witness take?
12 MR. BALLOU: Judge, what I might suggest is
13 we have Doctor Stevens here and we are ready to
14 call him and then I suspect that we have two
15 railroad witnesses that I suggest we call in the
16 morning.
17 THE COURT: All right. And how long do you
18 think Doctor Stevens testimony will take?
19 MR. BALLOU: We'll be done by six I would
20 imagine at the latest.
21 THE COURT: All right, then let's bring the
22 jury in.
23 MR. BALLOU: Judge, before you bring the
24 jury in, I know there may be an issue as to
CENTRAL VIRGINIA REPORTERS (540)380-5017 295 V I R G I N I A:
.... IN THE CIRCUIT COURT FOR THE
CITY OF ROANOKE
RONALD L. BOWLES,
Plaintiff
-vs- CASE NO.: CL-97-825 NORFOLK AND WESTERN RAILWAY COMPANY, VOLUME III DefeP.dant
MARCH 11, 1999 9:30 A.M.
HEARD BEFORE:
THE HONORABLE ROBERT P. DOHERTY, JR.
P. 0. Box 12628 Roanoke, Virginia 24027 (540) 380-5017
296 APPEARANCES:
PRATT & TOBIN, ESQS. East Alton, Illinois BY: GREGORY M. TOBIN, ESQ. AND RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN, ESQS. Roanoke, Virginia BY: RAPHAEL E. FERRIS, ESQ.
Counsel on Behalf of Plaintiff
JOHNSON, AYERS & MATTHEWS, ESQS. Roanoke, Virginia BY: ROBERT S. BALLOU, ESQ.
Counsel on Behalf of Defendant
I N D E X
Witness DIRECT CROSS
Gary Lynn Ramsey 11 24
Michael E. Solesbee 32 42
E X H I B I T S
No. Description FOR THE PLAINTIFF:
11 Life Expectancy Table. 9
CENTRAL VIRGINIA REPORTERS (540)380-5017 297 3
1
2
3 The following cause, Day III of the
4 Proceedings, came on to be heard before the
5 Honorable Robert P. Doherty, Jr., Judge of the
6 Circuit Court for the City of Roanoke, sitting at
7 Roanoke, Virginia, on this, the 11th day of March,
8 1999 when the Parties returned to the Courtroom at
9 9:30 a.m. and the Trial continued.
10
11 (The Court Reporter, Lisa M. Hooker, RPR
12 was duly sworn.)
13
14 THE COURT, THE HONORABLE ROBERT P. DOHERTY,
15 JR.: Okay. We are back on-- would it be fair to
16 say the last day of this case?
17 MR. BALLOU: Yes, Your Honor.
18 MR. TOBIN: Yes, Your Honor.
19 THE COURT: And are there any matters we
20 need to look at before we bring the Jury in?
21 MR. BALLOU: The other question that
22 Mr. Tobin and I had had was whether there is going
23 to be problems -- we have brought a model into the
?.4 courtroom. We understand that the Court's
CENTRAL VIRGINIA REPORTERS (540)380-5017 298 4
1 previous decision was not to allow the movement of
2 the model, but that we intend to use it for
3 demonstrative purposes to show how the process can
4 be done without compressing the shock absorber and
5 so forth.
6 If there is going to be a problem with the
7 use of the model, I would prefer to bring it up
8 now, so that if it needs to be removed from the
9 courtroom, the Jury doesn't see it.
10 THE COURT: I'm not going to allow a
11 recreation of the accident or injury with that at
12 all.
13 MR. BALLOU: Okay.
14 THE COURT: Tell me what it is you plan to
15 do.
16 MR. BALLOU: What I plan to have done, when
17 the accident occurred, this -- as Mr. Bowles
18 described, this shock mount was -- he was trying
19 to compress it upwards two inches to attach these
20 bolts, so these were not bolted in, and we intend
21 to leave it bolted in, and I intend to have,
22 through Mr. Ramsey, have Mr. Ramsey demonstrate
23 the process for compressing the shock absorber and
24 also how it can be done with a --
CENTRAL VIRGINIA REPORTERS (540)380-5017 299 5
1 THE COURT: Why is that not a recreation of
2 the accident?
3 MR. BALLOU: Well, there is evidence from
4 Mr. Bowles that a pry bar could not be used, and
5 that was one of the reasons that he didn't use a
6 pry bar, and we would like to be able to show,
7 with the model, that a pry bar could be used.
8 THE COURT: I'm not going to allow that. I
9 will allow you to put somebody on and testify to
10 that, but I'm not going to allow a demonstration.
11 That is just, as far as I'm concerned, a little
12 recreation of what we're talking about, or
13 attempting to do that. The model, itself, is
14 fine, and I don't have any problem with you
15 showing it to the Jury, and quite frankly, when I
16 came in and looked at it this morning earlier, it
17 made everything clearer to me seeing that, so
18' there is nothing wrong with the model, and but
19 as far as a demonstration to the Jury with the
20 model of some process, I'm not going to let you do
21 that. You can have all of the people you want
22 testify contrary to whatever evidence you've heard
23 if you have witnesses to that effect.
24 MR. BALLOU: Can they point out on the
CENTRAL VIRGINIA REPORTERS (540}380-5017 300 6
1 model how something would be done in a contrary
2 manner?
3 THE COURT: Sure, but they can't -- they
4 can't try to recreate what is going on or
5 assimilate it with the model. If the question is,
6 we'll push this part up and this is the part that
7 I'm talking about and point to it or something,
8 yes.
9 MR. BALLOU: Very well, Your Honor.
10 THE COURT : And so but I think that the
11 model is really helpful. It lets the Jury really
12 understand what they are talking about.
13 MR. BALLOU: Very well, and then I will
14 have Mr. Ramsey be able to establish the size and
15 dimensions, but I just wanted to have that part
16 cleared up.
17 MR. TOBIN: That is fine. The only other
18 item that we have is the Jury view.
19 MR. BALLOU: And I assume the Judge is
20 going to take that up. We were going to ask for
21 it at the end of the evidence.
22 THE COURT: I'm going to hear the evidence
23 and then determine if it's necessary or not. We 24 had one Exhibit that we were going to put in
CENTRAL VIRGINIA REPORTERS (540)380-5017 301 11
1 was called as a witness and after having first been duly
2 sworn to tell the truth, the whole truth, and nothing but
3 the truth, was examined and testified as follows:
4
5
6 DIRECT EXAMINATION
7
8 BY MR. BALLOU:
9 Q Mr. Ramsey, would you state your full name, 10 please, sir.
11 A Gary Lynn Ramsey.
12 Q And where are you employed? 13 A Norfolk Southern Corporation.
14 Q And what is your position? 15 A Assistant manager, diesel shop.
16 Q And where is that located?
17 A That is located at the corner of 24th
18 Street and Shenandoah Avenue here in Roanoke, Virginia.
19 THE COURT: If you would look towards me
20 when you talk, the Jury can hear you better.
21 THE WITNESS: Okay, Shaffers Crossing, the
22 locomotive shop.
23 24
CENTRAL VIRGINIA REPORTERS (540)380-5017 302 12 Ramsey - Direct
1 BY MR. BALLOU:
2 Q Commonly known as Shaffers Crossing?
3 A Yes, sir.
4 Q How long have you been employed with the
5 railroad?
6 A I was hired August 2 of 1968 as an
7 apprentice machinist.
8 Q And just describe your railroad career up
9 to today.
10 A When I was hired in 1969, I served a
11 four-year apprenticeship as a machinist, and I worked
12 around on the various jobs with journeymen machinists
13 learning the trade and completed that apprenticeship,
14 worked as a machinist until March of 1978, and I worked a
15 gang leader supervisory type job at that time.
16 In July of 1979, I was promoted to
17 assistant foreman, gang, supervisory level, and I've had a
18 few promotions since that time to my present position,
19 which I was promoted to in January, January 1, 1992, and
20 I've been serving in that capacity since that time.
21 Q Okay. And for how long have you worked at
22 Shaffers Crossing?
23 A I've worked there the entire 30 and a-half
24 years, except for five or six months in 1984 when I worked
CENTRAL VIRGINIA REPORTERS (540}380-5017 303 13 Ramsey - Direct
1 at the locomotive shop which is downtown, the Roanoke
2 locomotive shop, which is the overhaul shop.
3 Q And in your position as assistant manager
4 of the diesel shop and your experience as a machinist
5 working at Shaffers Crossing, are you familiar with the
6 wheel truing process?
7 A Yes, sir, I am.
8 Q Okay, and how many people work the wheel
9 machine building at any one given time?
10 A There is only one there at any one given
11 time.
12 Q And how many shifts does the railroad run
13
14 A Well --
15 Q -- in the wheel machine building?
16 A Well, it's seven days a week, three shifts
17 a day, 21 shifts a week.
18 Q Okay.
19 A In essence.
20 Q Do you operate 365 days a year?
21 A We generally shut down Christmas Day, New
22 Year's Day, and Thanksgiving Day, but typically, we'll
23 operate a number of holidays.
24 Q Okay. And what is the typical schedule of
CENTRAL VIRGINIA REPORTERS (540)380-5017 30"4 14 Ramsey - Direct
1 a worker or a machinist who runs a wheel truing machine;
2 how does he start his day?
3 A They report to work at their designated 4 time, either first, second, or third shift, and first
5 shift starts at 7:00A.M., then 3:00P.M., then 11:00
6 P.M. We have a safety meeting where all employees of that
7 area report. There is one for the area where the wheel
8 machine operator reports to, which is the test line, they
9 call it.
10 Q All right.
11 A And there has been 24 people, 22 to 24
12 people in that area.
13 Q What is involved in a safety meeting?
14 A You discuss a safety rule for the day, and
15 you discuss any safety bulletins that have come out since
16 your last safety meeting the prior day.
17 Q Okay.
18 A And any pertinent things about safety, and
19 then there is an open forum to discuss any issues or
20 questions that anyone might have.
21 Q Okay. Do you do anything else during that
22 meeting?
23 A After that meeting, we have stretching
24 exercises before we begin work.
CENTRAL VIRGINIA REPORTERS (540)380-5017 305 15 Ramsey - Direct
1 Q What is the purpose of that?
2 A It's warm-up exercises. They are light --
3 I would call them light exercises that we do. We do 12
4 repetitions of nine or ten different stretching exercises.
5 Q Okay.
6 A To loosen up for work.
7 Q Okay. Are you familiar with the truing of
8 a wheel on an EMD-GP60 on a locomotive?
9 A Yes.
10 Q Are you familiar with this model?
11 A Yes, sir, I am.
12 Q Okay. Would you describe for the Jury what
13 this model depicts?
14 A Well, this model depicts what we've had
15 quite a bit of discussion about. It's actually the shock
16 absorber mounted. The top where it's mounted is actually
17 the truck frame of the locomotive which was shown in the
18 photographs, and where it's mounted on the bottom, the
19 large plate -- can I approach it or not?
20 MR. BALLOU: Your Honor, may the witness
21 approach the model to be able to describe it?
22 THE COURT: Yes. There is a pointer around
23 here someplace. Here is one.
24
CENTRAL VIRGINIA REPORTERS (540)380-5017 306 16 Ramsey - Direct
1 BY MR. BALLOU:
2 Q Now, before you start pointing out what the 3 model shows, are you familiar with the measurements that
4 were made in being able to put the model together?
5 A The measurements were taken from the design
6 drawings from the electromotive division of General
7 Electric which produces the GP60 locomotive.
8 Q And where within the building would this
9 model be sitting?
10 A It's in the rail area of the building,
11 which puts it at a height that you can see.
12 Q Okay.
13 A And the top portion here is where it
14 actually bolts up to the truck frame of the locomotive.
15 There are springs in here, top springs in here on top of
16 the end of the axle, the same as it is on the end of the
17 axle on the other side.
18 Q Would having the pictures help you at all?
19 A Sure.
20 Q This is Plaintiff's Exhibit Number 2. If
21 you could step over here and be able to use the pictures
22 to show where on the model things are, as well.
23 A As locomotives go down the track, there are
24 some irregularities in the roadbed and track. These
CENTRAL VIRGINIA REPORTERS (540)380-5017 307 17 Ramsey - Direct
1 springs actually carry the weight of the locomotive, but
2 the axle will move up and down because you have the wheel,
3 you can see the bottom edge of the wheel, and the wheel is
4 in behind here (indicating), as it hits irregularities or
5 bumps in the track, and then it will move up and down, and
6 if you've ever driven an automobile with bad shocks on it,
7 when you hit a bump, it bounces quite a few times before
8 it stops bouncing. Shock absorbers are just dampeners or
9 snubbers so that you will get just one bounce and it will
10 give you a smoother ride.
11 Q So point out in the model where the
12 different parts of this picture are related to on this
13 model.
14 A Well, the outermost fixture is the shock
15 absorber, which is here (indicating). The top up here,
16 that is this portion, where it's bolted up to the truck
17 frame of the locomotive, and there's actually another
18 wheel over here. The truck frame continues out. It isn't
19 shown in this photograph, but it continues out. There is
20 a pretty much identical set up over here (indicating) .
21 Q Okay. And describe this configuration in
22 this area where the bottom of the shock absorber is
23 attached.
24 A This is actually the journal box of the
CENTRAL VIRGINIA REPORTERS (540)380-5017 308 18 Ramsey - Direct
1 locomotive, and there is a bearing on the end of the axle
2 that is pressed into this journal box, and this actually
3 just mates it to that journal box; it has to have some way
4 to hook to the end of the axle, so it's actually mounted
5 to this outside portion here, which is the bearing and
6 journal box.
7 Q So this portion is referred to as the
8 journal box?
9 A Yes, sir.
10 Q And what does this portion right here
11 represent?
12 A Well, this piece across here is 13 representative of this pedestal pry bar across the bottom
14 here.
15 Q Okay, and are you familiar with all of the 16 measurements on the model and whether they match up with
17 the measurements on an EMD-3060?
18 A Yes.
19 Q And do they?
20 A Yes, they do.
21 Q Okay. You can go ahead and sit down.
22 We've heard actually, I apologize for asking you to get
23 back up. Would you please point out on the model how the
24 wheel is uncapped and then just describe what is involved
CENTRAL VIRGINIA REPORTERS (540)380-5017 309 19 Ramsey - Direct
1 in the uncapping process?
2 A Well, typically, you use an impact wrench
3 to take these four bolts out {indicating}. Generally,
4 they lay them right here {indicating); when they take the
5 four bolts out, they lay them here {indicating), and that
6 is when the shock is raised up out of the way to clear the
7 wheel machine centers that go into the end of the axle.
8 This has to be -- this has to come out of the way, so you
9 raise it up. There is one small bearing dust cover in
10 behind there in the end of the axle that has got three
11 allenhead screws in it that you take out.
12 Q When you raise the shock absorber, how do
13 you keep it up?
14 A Well, you place a bolt, and I don't know
15 the exact length of it.
16 Q Would this be representative of the type of
17 bolt (indicating)?
18 Yes, sir. You raise it up, place this bolt
19 in behind it, and that will hold it, not straight out, but
20 on a somewhat horizontal level.
21 Q Okay. Then describe, after the wheel is
22 trued, the process of recapping.
23 A Well, once the wheel has been trued and
24 it's moved back to the raised rail area, you would raise
CENTRAL VIRGINIA REPORTERS (540)380-5017 310 20 Ramsey - Direct
1 these you put some pressure, raise the shock up, take 2 that bolt out, and then bring it down.
3 Q And then what is to be done afterwards,
4 after you bring it down?
5 A Well, first, you have to put that small
6 dust cover in; I'm sorry. You have to put that small dust
7 cover on it first and then take the bolt out, lower it
8 down, and you have to reinstall these four bolts.
9 Q Does that sometimes involve compression of
10 the shock absorber?
11 A Yes, it does.
12 Q Okay. You can go ahead and sit down.
13 A All right.
14 Q Are you familiar with the compression of
15 shock absorbers?
16 A Yes, sir.
17 Q Okay. And would you describe what type of
18 ·movement it takes to be able to move a shock absorber?
19 A Well, the shock absorber moves up and down
20 vertically, so it if it has lowered by two inches, then
21 you need to raise it two inches until your bolt holes line
22 up.
23 Q Do they move fast?
24 A No. A shock absorber, it doesn't stop all
CENTRAL VIRGINIA REPORTERS (540)380-5017 311 21 Ramsey - Direct
1 movement of a locomotive. It dampens so that it slows
2 down. There is a resistance from the hydraulic fluid in
3 it. The resistance is proportional to the velocity of the
4 stroke. Now, you have to push it easy and slow. You
5 can't push it fast.
6 Q All right. Now, in June of 1993, were you
7 familiar with the processes that -- were you familiar with
8 the processes that machinists were using or had available
9 to them to compress shock absorbers in a wheel truing
10 machine?
11 A Yes.
12 Q And what were those?
13 A They could compress it manually.
14 Q Okay.
15 A They could use a pry bar to raise it up, or
16 there is a telephone intercom there at the wheel true
17 building, and like I said, typically, there is one person
18 there; sometimes there is an apprentice there learning the
19 job, because we use them and instruct apprentices how to
20 do the job. They can call to the office or other areas of
21 the shop and get assistance .
22 Q . Okay. Let me back up, because I missed one
23 thing. When, during the process that a locomotive is
24 within Shaffers Crossing, does it come into the wheel
CENTRAL VIRGINIA REPORTERS (540)380-5017 312 22 Ramsey - Direct
1 truing building?
2 A Each 90 days, we bring locomotives in for
3 inspection type things.
4 Q Why is that?
5 A It's to do some routine maintenance that we
6 do to locomotives, but to go over all of the items, safety
7 items, handrails, grab irons, steps, check out all of the
8 air equipment on them, all of the rotating electrical
9 equipment on them, that type of thing, and we fix anything
10 that we find wrong with it, and then we wash it, the
11 engine room, outside car body, everything, and then if it
12 needs to go to the wheel truing machine, it goes. As a
13 fleet average, locomotives, every third time it goes
14 through the maintenance line, will go to the wheel true
15 machine.
16 Q Okay.
17 A And every third time that it needs to go to
18 the wheel true machine, it will need a new set of wheels,
19 because you have turned off the metal to where you don't
20 have as much tread left, and when the wheels get down to
21 one inch of tread left, we replace all of the wheels.
22 Q We've heard some discussion, Mr. Ramsey,
23 about use of a pry bar in compressing shock absorbers, and
24 would you describe where on this model a pry bar could be
CENTRAL VIRGINIA REPORTERS {540)380-5017 313 23 Ramsey - Direct
1 used, if at all, for compressing shock absorbers?
2 A On the pedestal.
3 Q Why don't you come over and show us.
4 THE COURT: I told you I was not going to
5 allow a demonstration. You can use that to point
6 things out, but we're not going to have an
7 accident or whatever recreation.
8
9 BY MR. BALLOU:
10 Q Okay. Describe where the pry bar would
11 be.
12 A Right here on the pedestal cap.
13 Q Okay. And how would the pry bar,
14 without would it be -- in which position would the pry
15 bar be put onto the pedestal cap?
16 A Not like that.
17 Q Like this (indicating)?
18 A Yes.
19 Q With the pointed end down?
20 A Yes.
21 Q Okay. What is the purpose of the narrow
22 end of the pry bar?
23 A Well, you can use it when you are aligning
24 it up to start the four bolts.
CENTRAL VIRGINIA REPORTERS (540)380-5017 314 24 Ramsey - Direct
1 Q Come show what you mean, how that would be
2 done.
3 A When you are recapping it and need to
4 realign the bolts, you can stick the pry bar through with
5 that pointed end; you can stick that through to align it
6 up.
7 Q Okay. In connection with the time that
8 you've spent at Shaffers Crossing as a machinist and as an
9 assistant manager of the diesel shop, have you been in a
10 position to be aware of any complaints made about the
11 process of compressing shock absorbers in the wheel
12 machine?
13 A Yes, sir, I have.
14 Q And are you familiar with any complaints
15 made prior to June 23, 1993?
16 A I've not had any complaints prior to June
17 23, 1993.
18 MR. BALLOU: Okay. No further questions.
19
20
21 CROSS EXAMINATION
22
23 BY MR. FERRIS:
24 Q Mr. Ramsey, my name is Ray Ferris. We have
CENTRAL VIRGINIA REPORTERS (540)380-5017 315 25 Ramsey - Cross
1 been sitting across the courtroom from each other for
2 three days, and I think I introduced myself to you early
3 on.
4 A Well, you haven't, but I'm pleased to meet
5 you.
6 Q I apologize; that is not very polite. Your
7 Honor, may I approach the model?
8 THE COURT: Yes, and the same rules apply
9 to the Plaintiff as apply to the Defendant. You
10 can't recreate the incidence.
11 MR. FERRIS: Thank you, Your Honor.
12
13 BY MR. FERRIS:
14 Q Mr. Ramsey, you are a machinist, is that
15 correct, or you were a machinist?
16 A Yes.
17 Q And you are in a supervisory role now?
18 A Yes.
19 Q And have you ever done this yourself?
20 A EMD started putting on shocks --
21 Q The question is, have you ever done this 22 yourself?
23 A Yes.
24 Q When?
CENTRAL VIRGINIA REPORTERS (540)380-5017 316 26 Ramsey - Cross
1 A It would have been between 1972 and 1978.
2 Q Okay.
3 A I was working as a machinist when EMD first
4 started to put them on the motors.
5 Q When EMD first started to put them on the
6 machines?
7 A Yes.
8 Q On the locomotives?
9 A Yes.
10 Q Because prior to that, they had different
11 configurations, and they weren't all like this, were they?
12 A It was a -- actually a snubber type, not
13 really a lot dissimilar, but it wasn't exactly like this,
14 no.
15 Q Okay, and in fact, the models that you did
16 have didn't have this configuration, did it?
17 A The bottom mount on those was different.
18 The shock absorber essentially was the same absorber, but
19 the bottom mount on it was different, the way it bolted up
20 to the journal box.
21 Q The bottom mount, is this what we are
22 talking about, the bottom mount {indicating)?
23 A Yes, sir.
24 Q And I don't want to -- I don't want to
CENTRAL VIRGINIA REPORTERS {540)380-5017 317 27 Ramsey - Cross
1 misconstrue your testimony, but, I mean, isn't it all part
2 of the procedure; didn't you testify that in compressing
3 this shock, you also have to push, or did you testify that
4 you have to push and align the bottom mount?
5 A You have to push it in, get it over to the
6 journal box, and press up.
7 Q And you've never done this on this machine,
8 with this bottom mount, have you?
9 A Not with that mount, no, sir.
10 Q Okay. Where is that pry bar? Now,
11 Mr. Ballou asked you what this tip was for on the pry
12 bar. Is this pry bar any different from any other pry bar
13 at the Norfolk Southern Shops?
14 A That one was taken from the wheel true
15 building. No, sir.
16 Q That is not my question.
17 A No, sir, it's not.
18 Q In other words, this is just a regular pry
19 bar, and this is not specifically designed for use on this
20 apparatus; is that correct?
21 A That is correct.
22 Q And now, this would be the end, and I'm
23 pointing now to the flat end that you would use to put on
24 this plate, and you wouldn't do it, because you've never
CENTRAL VIRGINIA REPORTERS (540)380-5017 318 28 Ramsey - Cross
1 done it, but a machinist would use it to put it on this
2 plate to help push this shock or compress this shock; is
3 that right?
4 A You would put it on it in the reverse of
5 the way that you held it.
6 Q Okay. So you would put it on it this way
7 (indicating)?
8 A Yes, sir.
9 Q Okay. Now, this is flat metal, isn't it?
10 A Yes.
11 Q Okay. And this is flat, slick metal, isn't
12 it?
13 A That one is probably slicker than the one
14 on the locomotive, because it's polished aluminum.
15 Q The one on the locomotive has grease on it,
16 doesn't it?
17 A No, sir.
18 Q They are clean?
19 A Well, the photographs taken at the time of
20 the incident are clean.
21 Q Well, that wasn't the question. Do they
22 come in there clean because they've been through the test
23 line?
24 A They've been through the wash.
CENTRAL VIRGINIA REPORTERS (540)380-5017 319 29 Ramsey - Cross
1 Q Well, Mr. Simmons or Mr. Dowdy, and I don't
2 remember which one, testified that they are wet and
3 sometimes greasy. Are you saying that that is not the
4 case?
5 MR. BALLOU: Your Honor, I think the issue.
6 in the case is what it was on the day of the
7 particular accident.
8 MR. FERRIS: He doesn't know what it was on
9 the day of the accident.
10 THE COURT: I think that his question is
11 proper, and I overrule the objection.
12
13 BY MR. FERRIS:
14 Q Okay. In fact, you weren't there at the
15 time that Mr. Bowles was injured, were you?
16 A That is true.
17 Q Okay, you went down there later with
18 Mr. Bowles and asked him to recreate for you what happened
19 when he got injured, didn't you?
20 A I was not present with Mr. Bowles at that
21 time. I was present in Mr. Solesbee's office for a
22 portion of his discussion with Mr. Solesbee that morning.
23 Q Okay, I stand corrected. Did you ask him
24 why he didn't use the pry bar?
CENTRAL VIRGINIA REPORTERS (540)380-5017 320 30 Ramsey - Cross
1 A No, sir, I did not. Like I said, I walked
2 into the tail end of the conversation.
3 Q Okay. Did you discuss with him that he
4 should have been using the pry bar?
5 A No, I did not.
6 Q Okay. In fact, you talked to him again
7 days later, and you didn't tell him he should have used
8 the pry bar, did you, or do you remember?
9 A I don't remember talking to him later.
10 Q So you've only talked to him one time about
11 this accident; is that what you are testifying to?
12 A Yes, sir.
13 Q And that at that time, you knew that he
14 didn't use the pry bar; is that correct?
15 A That was my understanding.
16 Q And you didn't tell him or you didn't ask
17 him why didn't you use the pry bar, did you?
18 A No; sir.
19 Q Okay. Now, this pry bar is slick, not
20 slick, but it's smooth, isn't it? Take a look at that.
21 A Yes.
22 Q And this apparatus has got an edge on it,
23 doesn't it? It looks to me like it might be a quarter
24 inch, three-eighths of an inch; is that how thick this
CENTRAL VIRGINIAg~PlRTERS (540)380-5017 31 Ramsey - Cross
1 plate is?
2 A It's three-eighths to a-half, yes.
3 Q Okay. Not a bad guess. Now, when you are
4 using the pry bar against this edge, it would be just the
5 edge of the metal against this slick pry bar; isn't that
6 right?
7 A Yes.
8 Q Okay. And it would be this edge, whichever
9 way it goes, either this way or that way, against this
10 metal, no grooves, no place to put it except against it;
11 is that correct?
12 A That is correct.
13 Q Okay, and it wouldn't surprise you if, in
14 this process, this might slip or would slip and hit a
15 machinist in the face while using a pry bar, would it?
16 A No.
17 Q Okay. In fact
18 But I disagree with that.
19 Q You disagree with it?
20 A Yes.
21 Q You don't know that it's ever happened?
22 A It would surprise me.
23 Q You don't know that it's ever happened?
24 A I do not know that it's happened.
CENTRAL VIRGINIA REPORTERS (540}380-5017 322 32 Ramsey - Cross
1 Q Okay.
2 A Prior to --
3 Q Do you know that it's not happened?
4 A I don't know that it has and I don't know
5 that it hasn't.
6 Q You just don't know?
7 A I'm not aware that it has happened.
8 Q You don't know? You don't know that it's 9 not happened? Have you checked your records to see if it
10 has happened?
11 A I have no records to indicate that it has
12 happened.
13 Q Okay. Now, in your description of the
14 procedure, this shock swings out this way once you take
15 these bolts out, right?
16 A Yes, sir.
17 Q Okay. And the reason that you put the nut
18 or the bolt that Mr. Ballou had, and I will just use a
19 pointer, Mr. Ballou, may I borrow your pointer? You put a
20 bolt in here to create a leverage like this to hold the
21 shock out; is that correct?
22 A That is correct.
23 Q Now, in the process of truing the wheel and
24 the weight of this plate, it pulls this inside cylinder
CENTRAL VIRGINIA REPORTERS {540)380-5017 323 33 Ramsey - Cross
1 down; is that correct?
2 A That is possible.
3 Q Possible?
4 A Yes.
5 Q And does it happen more often than not,
6 that it has to be realigned?
7 A It probably does.
8 Q It probably does, okay, but then you know
9 that from talking with the machinists; you've not done
10 this yourself, have you?
11 A I've done it on similar but not that
12 particular locomotive.
13 Q This particular -- and how long have you
14 all been running these locomotives?
15 A The GE-GP60's?
16 Q Yes, sir.
17 A They were purchased in 1991.
18 Q 1991?
19 A Yes.
20 Q So they were on the line when Mr. Bowles
21 was injured for two years; is that correct?
22 A Yes.
23 Q· And you hadn't performed this operation in,
24 as of today, ten years with 15 years by the date that you
CENTRAL VIRGINIA REPORTERS (540)380-5017 324 34 Ramsey - Cross
1 gave us as having the last time done it, which I think was
2 1978; is that correct?
3 A Yes.
4 Q Now, we've got this bolt, this shock sit is
5 sticking out like this, the shock begins to extend or
6 maybe it was done, and after the machinist is done with
7 the process, it's not just simply swinging it down and
8 pushing it up, is it?
9 A It has to come down against the journal
10 box.
11 Q Okay.
12 A And it has to go up if it's creeped down.
13 Q Okay. Now, this particular shock just --
14 it looks like it would probably flop real easy; I mean, if
15 we put took the bolts out, it would probably come down and
16 sit where it is?
17 A No.
18 Q
19 A It's hub-bolted, there is some resistance
20 to it.
21 Q So in order to get it down where it is, you
22 have to overcome that resistance, don't you?
23 A Push it in.
24 Q Push this way, towards the wheel, right?
CENTRAL VIRGINIA REPORTERS (540)380-5017 32~ 35 Ramsey - Cross
1 A Yes.
2 Q And now, pushing it towards the wheel this
3 way, meaning the way that I'm standing, right to left, it
4 doesn't stay there, does it?
5 A There will be some reflex back.
6 Q Okay.
7 A Yes.
8 Q So at the same time, while you are pushing
9 against the wheel, it has got to be pushed up, doesn't it,
10 in order to compress the shock to line the bolts up?
11 A You push it up, get the bolt to hold the
12 line, get a bolt while you are still holding it with one
13 hand, and start it.
14 Q Right, right, and then that is where, if
15 you use the pry bar, this comes in, because once you get
16 it close enough, once you get it close enough to line it
17 up, then you put this in the hole to jimmy it up a little
18 bit more, right, to get the bolt lined up to put the bolt
19 in?
20 A To get proper alignment, yes.
21 Q Okay, but you can't do it until you get it
22 compressed to a certain point; is that right? I mean,
23 this won't I mean, obviously, if it's hanging down
24 here
CENTRAL VIRGINIA REPORTERS (540)380-5017 326 36 Ramsey - Cross
1 A You have to get the hole on the bottom
2 plate close enough to the bolt hole where you are going to
3 start it in to get the bar through it.
4 Q Okay.
5 A There is some latitude there.
6 Q Okay.
7 A But you have to get it somewhat close to it
8 before you can do that.
9 Q Okay. Now, there is a lot of other things
10 -- I mean, what we've got is the actual configuration of
11 the shock and the plate, but behind the plate is the wheel
12 and we have the truck assembly, and what you all have done
13 here is brought in just the relevant things to the capping
14 procedure, not to the turning procedure; is that right?
15 A I don't think that it -- that is correct.
16 Q Okay. What is your salary a year at
17 Norfolk Southern?
18 MR. BALLOU: Your Honor, I object. I don't
19 see how it's relevant at all.
20 MR. FERRIS: It goes to bias, Your Honor.
21 THE COURT: I sustain the objection.
22 MR. FERRIS: Nothing further from this
23 witness.
24 MR. BALLOU: Nothing further, Your Honor.
CENTRAL VIRGINIA REPORTERS (540}380-5017 327 37 Ramsey - Cross
1 THE COURT: Thank you, sir. You may step
2 down.
3 THE WITNESS : Thank you.
4
5 {The witness was excused from the Witness
6 Stand.)
7
8 MR. BALLOU: We call Mike Solesbee.
9
10
11 MICHAEL E. SOLESBEE
12 was called as a witness and after having first been duly
13 sworn to tell the truth, the whole truth, and nothing but
14 the truth, was examined and testified as follows:
15
16
17
18 DIRECT EXAMINATION
19
20 BY MR. BALLOU:
21 Q Mr. Solesbee, would you state your name, 22 please, sir?
23 A Michael E. Solesbee.
24 Q And where are you employed?
CENTRAL VIRGINIA REPORTERS {540)380-5017 328 38 Solesbee - Direct
1 A Norfolk Southern.
2 Q And what is your position at Norfolk
3 Southern?
4 A Superintendent of the mechanical operations
5 here in Roanoke.
6 Q And what is involved in that job?
7 A Overseeing the movement of locomotives
8 between shops for repair and maintenance.
9 Q How long have you held that job?
10 A Since November of last year.
11 Q And before then, what was your employment
12 with the railroad?
13 A I worked at Shaffers Crossing locomotive
14 shop.
15 Q What was your job?
16 A I worked in the dispatch area up until
17 November. I had been in that job since 1995.
18 Q And when did you begin with the railroad?
19 A April of 1971.
20 Q And describe your railroad employment up to
21 when you began
22 A I started out as a laborer working in
23 Asheville, North Carolina, and I went from a laborer to
24 the storehouse, worked in the storehouse for about four
CENTRAL VIRGINIA REPORTERS (540)380-5017 329 39 Solesbee - Direct
1 years, and then I went -- took an electrician's job, held
2 that job until 1983, and I moved to Atlanta on a general
3 foreman's job in 1983. I held that job until 1991, when I
4 moved to Roanoke.
5 Q And what job did you take in 1991?
6 A It was a job at the Shaffers Crossing
7 locomotive shop over the test line, maintenance line.
8 Q And did that have supervisory capacity over
9 the wheel machine, as well?
10 A Yes, sir, it did.
11 Q And in that capacity, did you have
12 supervisory responsibilities over Ron Bowles?
13 A Yes, sir.
14 Q Okay. And now, from 1991 up until 1993,
15 what was the procedure for -- at the beginning of the day
16 for machinists working the wheel machine?
17 A Each shift, the first thing they would do,
18 they would have a safety meeting where they would go over
19 safety rules, a safety rule, and ask if there were any
20 concerns that the men had over safety issues. They would
21 discuss injuries that had occurred over the system, and
22 then they would go in and do their warm-up exercises, and
23 then get their tools and go to work.
24 Q Okay. And in connection with the safety
CENTRAL VIRGINIA REPORTERS (540)380-5017 330 40 Solesbee - Direct
1 meetings, were you aware of any complaints about the
2 process of compressing shock absorbers?
3 A No, sir, I was not.
4 Q And were you familiar with Jim Pauley and 5 also Robert Pack?
A
Q
A
9 Q And did they ever make any complaints to
10 you prior to 1993 of -- about the compression of shock
11 absorbers?
12 A No, sir.
13 Q Okay. And when did you first become aware
14 of the accident involving Ron Bowles?
15 A Well, on the morning after it happened. I
16 usually come in work about 6:00 in the morning.
17 Q Okay.
18 A And I was notified.
19 Q And what did you learn?
20 A That Mr. Bowles had been truing wheels, and
21 in capping the motors back up, he was compressing the
22 shock and inj~red his back.
23 Q Okay, and did he -- did you have an attempt
24 to discuss did you have an opportunity to discuss this
CENTRAL VIRGINIA REPORTERS {540)380-5017 331 41 Solesbee - Direct
1 with Mr. Bowles?
2 A Yes, I did.
3 Q Do you recall what he told you?
4 A He was explaining that he was in the
5 process of putting the shock back up into place, and that
6 while I was compressing the shock, he felt pain in his
7 right back.
8 Q Did he tell you about how far he was trying
9 to compress the shock?
10 A About two inches.
11 Q Did you have any further discussions at any
12 time later when Mr. Corea was there?
13 A Only -- it was the following morning, and
14 Mr. Bowles stopped by the office and Mr. Corea was in the
15 office, and I was asking Mr. Bowles, you know, how his
16 back was doing, and he thought that it was doing okay, and
17 we talked about, you know, if he needed medical attention,
18 you know, for him to do that, and also, we discussed that
19 he was going on vacation for a week, and that he felt that
20 that might give his back time to heal up.
21 Q What discussion was held about medical
22 attention?
23 A Well, if he felt like he needed medical
24 attention, that, you know, that was his choice. That is
CENTRAL VIRGINIA REPORTERS (540)380-5017 332 42 Solesbee - Direct
1 the first thing that we offer them is medical attention.
2 Q Okay. Did you discuss medical treatment 3 with Mr. Bowles when you saw him the day of the incident?
4 A Yes.
5 Q And what was his comment to you, if any,
6 about medical attention?
7 A Well, he declined treatment that morning.
8 Q Okay. During your meeting in which Mr. 9 Corea was present, was there anything said by Mr. Corea
10 about the procedure of compressing shock absorbers?
11 A No, sir.
12 MR. BALLOU: Okay. No further questions,
13 Your Honor.
14
15
16
17 CROSS EXAMINATION
18
19 BY MR. TOBIN:
20 Q Just a few follow-ups. When you had your
21 discussion with Ron regarding medical treatment, was Ron
22 hopeful at that time that this wasn't a serious back
23 injury, and he was hopeful that the problem would go away?
24 A Yes.
CENTRAL VIRGINIA REPORTERS (540)380-5017 333 43 Solesbee - Cross
1 Q And so then he declined a back injury on
2 that basis; is that correct?
3 A He declined treatment.
4 Q Okay. You were the investigating officer
5 with regard to this accident, weren't you?
6 A Yes, sir.
7 Q And you issued a report in that regard, did
8 you not?
9 A Yes.
10 Q And at no time ever did you conclude that
11 Ron Bowles did anything wrong with regard to this accident
12 of June 23, 1993; isn't that correct?
13 A That is true.
14 Q And at no time ever did you conclude or
15 suggest that he should have used a pry bar with regard to
16 his June 23, 1993 accident; is that correct?
17 A Well, that is kind of common knowledge.
18 Q That he shouldn't have?
19 A That you can use a pry bar.
20 Q Okay, but my question was this: You were
21 the investigating officer, right?
22 A Yes.
23 Q And you wrote a report; is that correct?
24 A Yes.
CENTRAL VIRGINIA REPORTERS (540)380-5017 334 44 Solesbee - Cross
1 Q And anywhere in your report, did you
2 conclude or suggest that Ron Bowles should have used a pry
3 bar to accomplish this task on June 23, 1993?
4 A No, sir.
5 MR. TOBIN: That is all the questions that
6 I have.
7 MR. BALLOU: Nothing further, Your Honor.
8 THE COURT: Thank you, sir. You may step
9 down. Is he free to leave?
10 MR. BALLOU: He is, Your Honor.
11
12 (The witness was excused from the Witness
13 Stand.)
14
15 MR. BALLOU: Your Honor, the Defendant
16 rests.
17
18 (The Defendant Rests.)
19
20 THE COURT: Okay, we're going to take a
21 break. I told you yesterday, or two days ago,
22 that the process that we go through is after you
23 hear the opening statements of the lawyers, you
24 then hear all of the evidence as it comes to you,
CENTRAL VIRGINIA REPORTERS {540)380-5017 335 47 Solesbee - Cross
1 Courtroom.)
2
3 THE COURT: Let me remind you all to remind
4 me when the final argument is completed, to notify
5 the Jurors who the alternate is so the alternate
6 doesn't go back with them.
7 All right. During the lunch break when the
8 Jury was out, we went over Instructions back in
9 Chambers, and I have Instructions A through G that
10 were refused or denied. Are there -- let's start
11 with the Plaintiff. Tell me which Instructions
12 you object to the denying of or which of the given
13 Instructions you object to.
14 MR. BALLOU: Before we do that, I have to
15 renew the Defendant's Motion to Strike since all
16 of the evidence is in, and I renew that Motion at
17 this time for all of the reasons stated at the
18 conclusion of the Plaintiff's case.
19 THE COURT: All right, and I deny that
20 Motion for the reasons I gave earlier. I think
21 that we have a Jury question here on the issue of
22 negligence and damages. All right. Mr. Ferris,
23 tell me what your objections are. Let's start off
24 with the refused or denied instructions. Tell me
CENTRAL VIRGINIA REPORTERS (540)380-5017 336 VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF ROAN
RONALD L. BOWLES, ) ) Plaintiff ) MOTION TO SET ASIDE VERDICT ) v. ) ) NORFOLK AND WESTERN RAILWAY ) case No. CL 97000825-00 COMPANY, ) ) Defendant )
Defendant Norfolk and Western Railway ("NW"), by counsel, moves this Court to set aside the jury's verdict and to enter judgment for Defendant as a matter of law, or, in the alterna- tive, to order a new trial on all issues. NW makes this motion on the following grounds, without prejudice to its right to assert on appeal other bases for appellate relief. 1. The jury's verdict should be set aside, and judgment should be entered for Defendant as a matter of law, because Plaintiff failed as a matter of law to prove negligence. 2. The verdict should be set aside and a new trial should be ordered on all issues because Defendant was not provided with the list of potential jurors required to be provided under
Virginia Code § 8.01-353. 3. The verdict should be set aside and a new trial ordered on all issues because expert testimony of Dr. Shinnick was improperly admitted, in that this testimony did not involve
LAW OFFICES proper matter for expert testimony, but merely repeated the )HNSON. AYERS & MATTHEWS P 0 BOX 2200 testimony of lay witnesses and involved matters lying wholly •ANOK£. VA. 24009 within the common knowledge of the jury.
337 4. The verdict should be set aside and a new trial ordered on all issues because Plaintiff's Exhibit 6, Dr. Cobb's chart of special damages computed by projected year of retire- ment, was an inadmissible summary of oral testimony, and also was not based on admissible evidence, and therefore was specula-
tive, to the extent it projected damages past a projected retirement age of age sixty-three. WHEREFORE, Defendant requests this Court to set aside the jury's verdict and to enter judgment for Defendant as a matter of law, or in the alternative, to order a new trial on all issues. Respectfully submitted, NORFOLK AND WESTERN RAILWAY COMPANY
By vf Counsel James F. Johnson VSB No. 03412 Robert s. Ballou VSB No. 28080 John D. Eure VSB No. 16225 JOHNSON, AYERS & MATTHEWS P.O. Box 2200 Roanoke, Virginia 24009-2200 (540) 982-3666 (540) 982-1552 (facsimile) Counsel for Defendant
1..AW OFFICES ·HNSON. AYERS !r MATTHEWS => 0 BOX 2200 'NOKE. VA. 24009 - 2 -
338 , - CERTIFICATE OF SERVICE
T~e undersigned hereby certifies that a true copy of the foregoing Motion to Set Aside Verdict was mailed to Gregory M. Tobin, Esquire, Pratt & Tobin, P.C., Route 111 at Airline Drive, P.O. Box 179, East Alton, Illinois 62024, and to Raphael E. Ferris, Esquire, Rider, Thomas, Cleaveland, Ferris & Eakin, P.C., 22 Luck Avenue, s.w., P.O. Box 1791, Roanoke, Virginia 24008-1791, counsel for Plaintiff, this 21st day of April, 1999.
~ John D. Eure
LAW OFFICES ::>HNSON, AYERS & MATTHEWS P 0. BOll 2200 )ANOKE, VA. 2400e - 3 -
339 qqonn1021 PG lJ 0 0 8 HY I I g: V I R G I N I A IN THE CIRCUIT COURT FOR THE CITY OF ROANOKE
RONALD L. BOWLES, ) ) Plaintiff, ) JUDRECMAY11'99AM1B:3 ) ORDER v. ) ) Case No. CL 97000825-00 NORFOLK AND WESTERN RAILWAY ) COMPANY, ) ) Defendant. )
On the eighth day of March, 1999, came Plaintiff, in person and by counsel, and Defendant Norfolk and Western Railway Company, by counsel. Defendant moved for a continuance because of an asserted violation of the requirements of Virginia Code
§ 8.01-353, as stated in the record, to which motion Plaintiff objected. The Court denied the request for a continuance, to which ruling the Defendant, by counsel, duly noted its objection. Thereupon came a panel of fourteen jurors, from which Plaintiff struck three persons and Defendant struck three persons, leaving the following jury of eight persons as jurors for the trial of this action: Aaron Callahan, Cheryl Francis, N. Kimberly Gallagher, Ethan Hooper, James Jackson, Frederick Law, Todd Oltman, and Rosemary Tench. These selected jurors were sworn to well and truly try the issues joined and return a true verdict according to the law and the evidence. Thereupon, with the agreement ·of counsel the Court drew the name of Rosemary Tench by lot to serve as an alternate juror. Thereupon, Plaintiff presented his evidence, and at the conclusion of Plaintiff's evidence on March 10, 1999, out of the
340 PG U 0 0 q HY I 1 ~ presence of the jury, Defendant, by counsel, moved the Court to strike Plaintiff's evidence and to enter a summary judgment on the grounds stated into the record by Defendant's counsel. After consideration of the motion and argument of counsel, the Court denied the motion, to which ruling Defendant, by counsel, duly noted its objection. At the conclusion of all evidence, Defendant renewed its motion to strike Plaintiff's evidence on the grounds stated into the record, and the Court denied the motion, to which ruling Defendant, by counsel, duly noted its objection. All parties having rested, the jury received the instructions of the Court, heard the argument of counsel on March 11, 1999, and thereafter returned to the jury room to consider its verdict. In due course, the jury returned the following verdict: We, the jury, on the issues joined, find in favor of the Plaintiff, and award damages in the amount of 1.5 Million Dollars.
March 11, 1999 Is/ Todd Oltman, Jury Foreman The Court polled the jury, and each juror, in turn, acknowledged that the foregoing was his or her verdict, and the jury was discharged. Thereupon, Defendant, by counsel, moved to set aside the verdict of the jury as being contrary to the law and the evidence. Counsel for Defendant requested additional time in which to obtain a transcript of the proceedings, and the Court
- 2 -
341 PG u D I 0 HY 11 ~ took Defendant's motion under advisement and established a
schedu~e for submitting legal memoranda on Defendant's motion.
Accordingly, th~ Court does hereby ADJUDGE and ORDER that
Defendant's motion to set aside the jury's verdict is taken
under advisement, and the parties are directed to file legal
memoranda regarding the motion of Defendant in accordance with
the following schedule:
1. Defendant's initial legal memorandum shall be served
on or before April 21, 1999.
2. Plaintiff's legal memorandum shall be served on or
before May 5, 1999.
3. Defendant's rebuttal memorandum shall be served on or before May 12, 1999.
A hearing on Defendant's motion to set aside shall be held
on May 19, 1999 at 1:30 p.m.
The Clerk shall send a certified copy of this Order to all
counsel of record.
And this matter is hereby continued.
Enter this r'C' day of v ~ 1 1999. aJU~tf.~~·
- 3 -
342 .. - [ .
"II~r-. 0'"'"u.J ..~~~, 711 I PG U0 I I HY I I g:
Seen:
Esquire Virginia State Bar No.,2Jff~ Rider, Thomas, Cleaveland, Ferris & Eakin, P.C. P.O. Box 1791 Roanoke, Virginia 24008-1791 (540) 344-3233 (540) 344-3510 (facsimile) Co-Counsel for Plaintiff
Gregory M. Tobin, Esquire Virginia State Bar No. 26571 Pratt & Tobin, P.c. P.O. Box 179 East Alton, Illinois 62024-0179 (618) 259-8011 (618) 259-6793 (facsimile) Co-Counsel for Plaintiff
Robe¥t S. Ballou, Esquire Virginia State Bar No. 28080 Johnson, Ayers & Matthews 302 Second Street, s.w. Post Office Box 2200 Roanoke, Virginia 24009-2200 (540) 982-3666 (540) 982-1552 (facsimile) Counsel for Defendant
- 4 -
343 .. - .TWENTY-THIRD JUDICIAL CIRCUIT OF VIRGINIA
ROBERT P. DOHERTY. JR .• JUDGE .,_ .,.,.., ROANOKE CITY COURTHOUSE CIRCUIT COURT FOR THE COUNTY OF ROANOKE 315 CHURCH AVENUE. S.W. CIRCUIT COURT FOR THE CITY OF ROI\NOKE P. 0. BOX 211 CIRCUIT COURT FOR THE CITY Of SALEM ROANOKE. VIRGINIA 24002·0211 15401 &53-2431 fAX 15401 &53·1040 COMMONWEALTH OF' 'VIRGINIA
September 9, 1999
Gregory J. Tobin, Esq. Pratt & Tobin P.O.Box179 East Alton, Illinois 62024
Raphael E. Ferris, Esq. Rider, Thomas, Cleaveland, Ferris & Eakin P. 0. Box 1791 Roanoke, Virginia 24008-1791
Robert S. Ballou, Esq. Johnson, Ayers & Matthews P. 0. Box 2200 Roanoke, Virginia 24009-2200
Re: Ronald L. Bowles, Plaintiff v. Norfolk and Western Railway Company, Defendant Roanoke City Circuit Court CL97-825
Gentlemen:
In this FELA case, Defendant railroad has moved to set the jury verdict aside, claiming numerous errors by the trial judge. The case was tried on March 9, 1999. An ice and snow storm had struck Roanoke the night before and snow was still falling when counsel arrived to start the trial. Two jury trials were to start that morning, one criminal and the other civil. Many of the citizens who had been summonsed as jurors failed to arrive, calling instead to advise that they could not travel on the slick roads. Sheriffs deputies went out in
344 September 9, 1999 Page Two
... _ ~ four wheel drive vehicles to bring in as many prospective jurors as they could reach. On at least one occasion, they were required to physically cany a juror from her house to the four wheel drive vehicle. By 10:30 to 11 :00 a.m., approximately forty veniremen had made it to the courthouse. They represented two separate panels previously summonsed, one for the criminal trial and one for this civil trial. These panels were combined for the criminal trial, and after that jury had been chosen, the remaining panelists, approximately twenty-eight people, were combined into one panel for the FELA case.
During the trial of this case, the Plaintiff testified that he was injured while manually compressing shock absorbers on a train car. He said that the operation he was required to perform was awkward, unsafe, difficult, and that it required him to get into a dangerous position and use extreme exertion. One of Plaintiffs experts testified that the work task assigned to the Plaintiff was unsafe, had a potential for injury, and should have been accomplished by use of a mechanical device. Another of Plaintiffs experts prepared a calculations chart using a fonnula and giving the mathematical results of Plaintiffs past, present and anticipated future lost earnings. The chart was blown up to poster size and presented as a trial exhibit. Defendant vigorously challenged each of Plaintiffs assertions by both cross examination and the presentation of its own witnesses. Defendant's case included evidence that the operation of compressing shock absorbers on a train had been done manually for approximately ten to fifteen years without injury, and that the current method of performing the work was safe.
The jury returned a verdict in favor of the Plaintiff, and the Defendant has moved to set that verdict aside claiming that:
I. Plaintiff failed to prove negligence; 2. Defendant did not receive a list of prospective jurors pursuant to §8.01-353; 3. Plaintiffs ergonomics expert testified to matters within the common knowledge of the jury; and 4. Plaintiff's economist was allowed to have his testimony reinforced in the minds of the jury by introduction of the lost earnings calculations chart.
Plaintiff argues in opposition to these claims of error. The Court agrees with the Plaintiff.
345 Sept~mber 9, 1999 Page Three
I. NEGLIGENCE
The requirement for proof of negligence in an FELA case is no different than the requirement for such proof in any other type of negligence case. FELA cases differ from the ordinary tort action, not on the issue of negligence, but rather on the question of causation. If a railroad is negligent in some way, and that negligence contributes in whole or in part, even in the slightest, to its employee's injury, then the railroad becomes liable for some or all of the employee's damages. Assumption of the risk is not a defense, and the contributory negligence of the employee cannot be used as a bar to recovery, but rather is used to proportionately reduce the damages his employer must pay. Norfolk & W. Ry. Co. v. Johnsqn, 251 Va. 37 (1996).
The railroad conducts daily safety meetings with its employees for the purpose of educating them and reminding them ofthe strict safety rules and regulations that are in effect. These rules must be followed in order to prevent employee injury in the dangerous business of railroading. Employees are encouraged to report unsafe conditions and practices, both at these meetings and to their supervisors. The purpose of this is to allow the railroad to become aware of problems, and if necessary, correct them so injury does not occur. Upon investigation, they can choose to do nothing, they can make changes so that the danger no longer exists, or in the alternative, they can warn employees of the dangers, as well as develop safe procedures or equipment to protect the employee. This duty to safeguard workers is incumbent upon a railroad under the Federal Employer's Liability Act, but is not absolute. A railroad is not an insurer, it is an employer. Norfolk Southern Ry. Co. v. Trimiew, 253 Va. 22 (1997), citing Johnson, supra.
In this case the Plaintiff alleged that the particular job he was assigned had a difficult to perfonn and dangerous component, that of compressing the shock absorber on a train car by hand. He testified that he told his supervisors about this problem, and at least one of them said that a poor practice existed regarding the procedure used by the railroad to compress the shock absorbers. Plaintiff himself told the jury the steps he went through to compress shock absorbers, and he explained why he thought it was to dangerous to do without a specially designed tool. Plaintiffs expert testified that the procedure was unsafe and required the use of some sort of mechanical device to protect the worker. Defendant argued that the procedure was not unsafe, that a iron bar was available to assist the worker in compr~ssing the shock absorber, and that the particular task at which Plaintiff had been injured was one that had been perfonned multiple times per day for many years without injury. The procedure itself was explained to the jury in great detail, by a number of
346 Sep~ember 9, 1999 Page Four witnesses, using pictures, words and gestures. The jury became anned with the necessary information to detennine ifthe procedure followed was safe or not. The question for the jury was whether or not the railroad was negligent in failing to thoroughly inspect the procedure Plaintiff had complained about, or having inspected, failed to take the necessary steps to make the operation more safe, and/or failed to design and make a specific lever or tool that would aid in the task of compression, without placing the employee in banns way. The determination of fault, in the face of contradictory evidence, was an issue for the jury. Defendant's request for a directed verdict on the negligence question is denied.
ll. JURY PANEL LIST
Defendant argues that because all of the potential jurors summonsed for its trial did not appear, and instead additional jurors who had been summonsed but were not used in a criminal trial were added to the jury panel list for this trial, that a violation of §8.01-353, Code of Virginia (1950), as amended, occurred, and that a new trial should be granted. The Court notes that the Defendant is not claiming that it received an unfair trial or that the jurors were unqualified or biased, and neither is the Defendant claiming a constitutional violation of its right to a jury trial. It is simply arguing that all of the jurors on the jury panel list it received prior to trial did not appear, and additional jurors were used in their place.
In fact, the Defendant was given the entire master list ofjurors who were available for the whole term of court. Those veniremen summonsed specifically for this trial were highlighted or checked on that list. Many of those potential jurors who were summonsed were unable to appear because of inclement weather. Since here were not sufficient numbers of veniremen in either of the two jury panel lists to allow either the criminal case or the FELA case to proceed, the panels were combined and sent to the criminal trial. When that jury was chosen the remaining panelists were made available for the civil case. The Court assumes, but does not know, that some of the jurors originally designated on the jury panel list given to the Defendant sat as jurors in the criminal trial. The possibility exists that all of the potential jurors on the Defendant's jury panel list who were able to appear in court that day were in fact present for jury selection at this trial, and that none were used in the criminal trial. The only matter that is certain is that all of the potential jurors listed on the jury panel list did not appear for the civil trial, and the Court supplemented the list by using the additional veniremen who had been summonsed for the criminal trial.
In support of his argument for a new trial, Defendant cites a criminal case, Harmon
347 September 9, 1999 Page Five ·
v. Commonwealth, 212 Va. 442 (1971), that dealt with the interpretation of specific criminal statutes that are now repealed, and that involved the statutory number ofjurors to be called in a criminal case, and the manner in which those jurors were to be summonsed. The Court finds some guidance in that case, but relies to a greater extent on the statutory directives set forth in §§8.01-353, 8.01-354 and 8.01-355. The Code requires that upon:request a party be given a list of the veniremen summonsed for a particular trial. That was done. The fact that all of those veniremen did not appear for the trial, whether because of inclement weather or because they were used as jurors in a criminal trial, does not make the list inaccurate. If that logic is used, no jury trial could ever proceed if one of the veniremen who was summonsed for jury duty failed to appear. The jury panel list given to the Defendant was an accurate recitation of those potential jurors sununonsed for the civil trial. They were not all available for trial, whether because of the weather conditions, or because of their being used as jurors in a criminal case, if in fact any were so used. The Court ordered the Sheriff to bring the remaining veniremen to the civil trial so that a jury could be chosen. That procedure is in accordance with a fair reading of the provisions of §8.01-355, and is used when sufficient jurors cannot be obtained for the trial of a case. In the alternative, using the Defendant's logic that it was supplied with an erroneous or inaccurate jury panel list, the provisions of §8.0 1-353 apply, and such inaccuracies or errors in the jury panel list 11 Shall not be grounds for a mistrial." The Defendant's request for a new trial based on a violation of §8.01-353 is denied.
III. EXPERT TESTIMONY ADDRESSED MATIERS WI1HIN THE COI\fM:ON KNOWLEDGE OF THE JURY
Dr. Shennick was found by the Court to be an expert in the field of ergonomics, work injury management and vocational rehabilitation. His field of study, his expertise, the tests he perfonned and his resulting conclusions and opinions were vigorously challenged by the Defendant, both in motions in limine and at trial. Some of the Defenqant's objections were sustained and others were not. The Court's reasoning for its decisions were painstakingly recited on the record. This is the third time these issues have been addressed. Dr. Shennick testified that from an ergonomic standpoint, the work task assigned to the Plaintiff was a dangerous task to perform. He explained that the manner in which it was accomplished placed ..the worker in an awkward position and required that forces be exerted in such a manner that injury could easily occur to the employee. He opined that the work task could be accomplished in a safe manner by the use of a mechanical device, such as a specially
348 September 9, 1999 Page Six .. .: ,....., designed lever. He concluded, baSed on his studies, his observations, his tests, his background, his education and his training, that the manner in which the Plaintiff was required to compress the shock absorber was unsafe from an ergonomic standpoint. Those conclusions were not within the common knowledge or experience ofthe jurors. Defendant's motion for a new trial based on Dr. Shennick's testimony is denied.
IV. S~D TESTIMONY IN CHART FORM
The fmal objection by the Defendant is based on the case ofNorfolk & W. Ry. Co. v. Puzyear, 250 Va. 559 (1995). That case stands for the proposition that it is error for a Court. to allow a witness to summarize his oral testimony on a document or chart which is then used by the jury during deliberation. The reason for this ruling is that delivery of such a chart to the jury might cause them to place greater emphasis on the witnesses' testimony because it is being repeated to them on the exhibit. Defendant alleges that in this case, the chart prepared by the Plaintiff's expert economist is a summary ofhis oral testimony, and that error occurred when the chart was made an exhibit and delivered to the jury. The Court finds otherwise.
The chart to which Defendant objects contains separate calculations in six different categories dealing with projected future wage losses and their present dollar values over a 28 year period. These numerous calculations are the mathematical results of a fonnula given to the jury by Dr. Cobb, the Plaintiffs expert economist. To arrive at those various numbers, Dr. Cobb took into consideration the historical inflation rate, interest rates, anticipated increases in benefits set forth in collective bargaining contracts, potential retirement ages, Plaintiffs present and past earnings, and the various fringe benefits provided by the railroad. While all mathematical calculations are basic, the application of the fonnula in this case to the many variables, and the ability to detennine what numbers should be accepted as given, fall well within the expert's realm. Dr. Cobb prepared a table of statistics using his calculations and using the fonnula he explained to the jury. The table or chart introduced into evidence did not summarize his testimony. He did not testify to all of the numbers. Instead he told the jury how the formula worked and did all of the calculations for them. The chart contained those calculations. It was helpful to the jurors. They understood the basis of the calculations and could refer to the table to determine the result of a specific calculaqon. The Defendant's motion for a new trial based on the admission into evidence of the table of calculations prepared by the Plaintiffs expert economist is denied.
349 September 9, 1999 Page Seven_
For all of the reasons herein stated, Defendant's motions for a mistrial, for a directed verdict and for a new trial are denied. Counsel for Plaintiff should prepare an appropriate final order in this case, incorporating this letter opinion by reference, and when endorsement of counsel has been obtained, present the same for entry.
Very truly yours, ~c.JJ~)' Robert P. Doherty, Jr.
RPDjr/bh
350 OC I S; PG 0 0 0 l q BK 070 PS 119 VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF ROANOKE
RONALD L. BOWLES, ) ) JUDRECOCT19'99AM 9:e· Plaintiff ) ) FINAL ORDER v. ) ) Law No. CL97-0825 NORFOLK AND WESTERN RAILWAY ) COMPANY, ) ) 7 Defendant ) This matter comes before the Court upon defendant's motion to set aside the verdict, this Court having entered orders dated the 5th day of May, 1999, and the lOth day of June, 1999, taking Defendant's motion to set aside the jury's verdict under advisement and continuing this matter on the docket. counsel for the parties have filed their respective memoranda and a hearing was held on the 19th day of May, 1999, at which time this Court heard argument of counsel. For the reasons stated in the Court's written opinion dated September 9, 1999, which is incorporated herein by reference, it is hereby ORDERED that the Defendant's motion to set aside the verdict is DENIED on all grounds, and accordingly the ·court ADJUDGES and ORDERS that judgment be entered on the jury's verdict in favor of the plaintiff in the sum of One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00), with inter est at the judgment rate from the 11th day of March, 1999, until paid. Defendant's objection to these rulings of the Court, for the reasons and on the grounds urged by Defendant orally and in
351 PG 0 0 0 8 OC I q ~ BK 070 PG 1196 writing in support of its motion to set aside the verdict, are hereby noted and preserved. All matters in controversy having been resolved and it appearing to the Court that nothing further remains to be done in this cause, it is further hereby ORDERED that this cause be stricken from the docket and placed among the ended law cases. The Clerk is directed to certify copies of this Order to counsel of record for the parties. (7/'1_ ENTER this 0 day of -~~~.=;....._~--' 1999.
We ask for entry of this Order: Q wt:~ Rap~l E. Ferris, VSB #21973 RIDER, THOMAS, CLEAVELAND, FERRIS & EAKIN, P.C. P. o. Box 1791 Roanoke, Virginia 24008-1791 540-344-3233 540-344-6608 (fax) Co-counsel for plaintiff Gregory M. Tobin, VSB #26571 PRATT & TOBIN P. o. Box 179 East Alton, Illinois 62024-179 618-259-8011 618-259-6793 (fax) co-counsel for plaintiff
2
352 PG 0 0 0 q OC J q S: BK 070 P6 119
Seen and objected to:
Jo n . Eure, VSB #16225 R rt S. Ballou, VSB #28080 JOHNSON, AYERS & MATTHEWS P. o. Box 2200 Roanoke, Virginia 24009 540-982-3666 540-982-1552 (fax) Counsel for Defendant
3
353 Jury Report Page: Run Date: 1999030 I 2/22/9
ARTHUR ROBERT D RETIRED/CARTER MACHINERY 2300 MASON MILL RD NE 24012 05301932
ATKINSON LESLIE CIRELLI CASE WORKER/SENATOR WARNER 2503 CRESTON AVE SW 24015 05301956
BAILEY ROBIN LYNNETTE SOCIAL WORKERIRKE CITY 3533 FERNCLIFF AVE NW APT C-35 24017 05291976
BARLOW DAISY MOORE PARALEGAIJPIEDMONT LEGAL SERV ~441 STONEWALL RD NW 24017 07231935
BELL ROBERT CALVIN OWNER/CAR WASRLAUNDRY 517 WALNUr AVE SE 24014 11121956
BELL SHERMAN w 1934 BRANDON AVE SW 24015 10051961
BENNETT KOLIN HOWARD STUDENT ~763 HORSEMAN ORNE 24019 1017196~
BENNETTS WENDY HERWIG HOUSEWIFE 5101 HEARTIISTONE RD NW 24012 12171970
BISHOP JOY BECKNER 3335 VALLEY VlEW AVE NW 24012 ~~ 09231954
BLANEY WANDA FAY WORD PROC/ ALLSTATE 1506 COlviPTON ST NE 24012 07231959
BOWLING BARBARA . CALL ASST MGRICA TIIER.INES 3209 TRlNKLE AVE NW 24012 01221942
BREWER ARTHOYIA 1816 STAUNTON AVE NW 24017 05181950
BROWN ANN 0 -119 WALNUT AVE SE APT3 24014 ~~ 02011943
BROWN DOMINIQUE L SERV REP/ FIRST UNION 1824 FRANWll.L AVW NW 24017 05111976 Exhibit A julj·rpt. rpt 354 Jury Report Page: Run Date: 1999030 I 212219
BROWN LORRIE DALE 5233 KING ARTHURS CT NW · APT3 24019 08051977
BRYANT CHARLOTTE ALICE SSOCIAL WORKER/I.. YNCHBURG 610 CENTRE AVE NW 24016 07171943
BURTON BARRY THOMAS ACCT/OLD VA BRICK 417 JANETIE AVE SW 24016 08081946
CALLAHAN ERIN RENEE COOK/FAST FREDDY'S 522 WENTWORTH AVE 24012 05191978
CAlviPBELL KIRBY MITCHELL 3563 BRYMOOR RD SW 24018 07061956
CASE DEBORAH JANE CLERK/FIRST UNION 4421 STONEWALL RD NW 24017 09281944
CLARKE EUGENE JOSEPH RETIRED/ST HEALTH DEPT 3296 SOrvtERSET ST SW 24014 07011931
COLEMAN RONALD DEWAYNE MASTER CONTROLIWSLS TV 3087 ORDWAY DR APTE 24017 02101950
COLES SUSAN KASEY STUDENT/DOMINION COLLEGE 3620 GREENLAND AVE NW 24012 10171951
COLEY DEBRA JEAN CLERICALIP AYROLL 4774 PENNSYLVANIA AVE NE 24019 10271955
COLLEY BRENDA LEWIS 2024 SANFORD AVE SW 24014 05101971
COTTON CAROLYN BARNARD ADMIN ASSTIRETIRED 1918 GREENWOOD RD SW 24015 11211930
COUPE REBECCA WIDDOWSON ··- -- SALES/BABIES R US 4816 DELRAY STNW 24012 10311948
CREGGER JEAN WADDELL DATA ENTRY/BELL ATLANTIC 4617 DELRAY ST NW 24012 06271932
juryrpt.rpt 355 Jury Report Page: Run Date: 1999030 I 2/22/9
CROSS\VHITE SHELIA RiCHARDS INNOTCH 33-JS SPRINGTREE DR NE 24012 08211970
DAVIS KENNETH LEE WRlTERICARll.ION 1117 HOWBERT AVE SW 24015 01061971
DOSS HEATHER RENEE DENTAL ASST. 139 PRINCETON CIR 24012 05061976
DRAPER DAVID NEAL SYSANALYSTffiELLSOUTH 1705 WAYNE STNE 24012 09181960
DREW PATRICIA ANN 222 HARRISON AVE NW 24016 09041961
DYKE MARYLAND ELIZABETH CUST SERV REPITRIGON 1639 MICHAEL ST NW 24017 07181963
ENGLISH KELLY MCLOYD POSTAL WORKER 2313 PORTLAND AVE NW 24017 10071948
EPPS SUSAN G~ COlvflvfERCIAL ARTIST 1722 PATTERSON AVE SW 24016 11031957
FISHER-POFF T~OTHY BRJAN GRAPIDC ARTISTNA TECH 1945 BELLEVll..LE RD SW 24015 08191964
FRANCIS CHERYL DARLENE BANK TELLER/SALEM BANK& TRUST 2518 RAVENWOOD AVE NW 24012 06191949
GALLAGHER ~ERLY KELLEY REGISTRATION REP/CAR.U.ION 1009 HARTSOOK BLVD SE 24014 11211960
GENTRY COLLIN JEFFERSON UNEMPLOYED/STUDENT 2803 BURTON AVE NW APT 1 24012 03111979
GILCHRIST MARTHA E TEACHERIRKE CITY 1019 WELTON AVE SW 24015 03311956
GILL APRll.. DIXON CUST SERV REP/ALLSTATE 2831 OLIVE AVE NW 24017 05241977
juryrpt.rpt 356 Jury Report Page: Run Date: 1999030 1 2/22/~
GLASBY NATASHA DAWN 2233 MOUNTAIN VIEW 1ER SW APT 7 24015 02121979
GODFREY JANE BUNDY MGRIVA BRIDAL Ol.Jil.ET 1509 4TH ST SW 24016 08201941
GRAHAM LOIS SMITH RETIRED/LAZARUS 640 MOUNTAIN AVE SE 24013 11071932
GREER SYLVIA HILL HEALTH BENEflTSrrHE TP A INC 2217 JEFFERSON ST SW APTB 24014 09261952
GREGORY JM1ES JEDEDIAH DISABllJTYJN&W RWY 4730 JACKLIN DR NE 24019 08281949
GREGORY VERNON BREEDEN ~CHANICIRKE CITY SCHOOLS 2637 IDLEWILD BLVD NE 24012 01271937
GUMPERT JOYCE CONNER STYLIST/SALON OWNER 915 GAYMONT ST SW 24015 08101945
HACKLEY MELISSA LADAWN UNEMPLOYED 1421 LAFAYETTE BLVD NW 24017 04221971
HALE RHONDA SWEETENBERG CUST SERV REP/FIRST UNION 3727 COVE RD NW 24017 04181964
HALTERMAN JACKIE T ADM CLERK/SECURITY SERV 4764 LONG ACRE DR NE 24019 05211954
HANDY ERNEST GEORGE OWNER/HANDY AUTO SALES 4017 RICHLAND AVE NW 24012 03051947
HARKINS CURTIS PATRICK SALESIINTERMIC TECH. 2407 STANLEY AVE SE 24014 11211943
HARPER ····ETHAN LOUIS RETIRED/TELEPHONE CO. 3768 WILMONT AVE NW 24017 04151932
HASH REBECCA FERRIS DESK CLERK/CLARION 921 BRANDON AVE SW APT8 24015 04141970
juryrpt.rpt 357 Jury Report .Page: 9 Run Date: 1999030 1 2/22/9
TENCH ROSEMARY HARTBERGER SECRETARY . 1407 PETERS CREEK RD NW 24017 04071947
TENZER JOEL RETIRED 3624 PEAK WOOD DR SW 24014 09241932
THOMPSON CYNTHIA CREASY LIBRARY ASST/CITY OF RKE 1120 .TOMPKINS AVE SE 24013 07151957
TOLLIVER JOANN CORA EXTEND STAY AMERICA 1227 CENTRE AVE NW 24017 12151973
TYREE DONALD p ODD JOBS 2522 DELTA DR NW 24017 08091947
VISSCHER ctrRISTINE mGELINE · riwNING -tOORo/COMM COLI..:~GE 833 \VOODS END LANE SW . 24014. () 103 (94,. ' .
.WALKER . ·. . . BETTY JANE ~ .. HOlv1EMAKER 1445 COVE RD NW 24017 06201945
WALKER SUE ADAMS CAFTERIA CITY SCHOOLS 3747 NEW SPRING BRANCH RD 24014 SE 04301948
WASKEY STEPHEN KIRK FINANCIAL ADVISORIFIRST UNION 2623 LONGVIEW AVE SW 24014 03141968
WEBB PATRICIA B 1013 HUNT AVE NW 24012 04171962
WEST CONNIE OTEY UNEMPLOYED 3768 PARLIAMENTRD SW APT2 24014 06211964
WHITE DELLA REESE CUST REPrrRIGON 2754 BRANDON AVE SW APT A-2 24015 12281959
Wll.EY LINDA COLEMAN 3402 PITISFIELD CIR NW 24017 08021951
WILLIAMS · NELSON LEE RETIRED/CITY OF RI WOODS PATRICK HAMILTON ACCT TECHICOMM OF REVENUE ~605 SANDERS DR NE 24019 03261971 YAGER WILLIAM E RETIRED/YOKOHAMA 4612 LONG ACRE DR NE 24019 08051932 ZIMlvtERMAN MARVIN WAYNE JACCUZZI~POOL 1609 ITH ST SE 24013 09181959 . ) juryrpt.rpt 363 Jury Report Page: : Run Date: 1999030 1 2/22/9 HEISHMAN MICHELLE E 1218 PENMARAVE SE 24013 06251976 HINER BILLY RAY CREW SUPV/CITY OF RKE .W 17 HAZLERIDGE RD 24012 02151942 HOBART KENNETII BRUCE VPIUNIVERSITY HOUSING GROUP 1639 PERSINGER RD SW 24015 04081949 HORSTIAANN JENNIFER SUSAN RN.IL.G. MEDICAL CENTER 4603 PALrvtER AVE NE 24019 02261972 HUDDLESTON RACHEL THACKER 168 TRINKLE AVE NE 24012 02151957 HUFFMAN JERRY WAYNE TEACHER/BOTETOURT CO. 3505 HILLCREST AVE NW 24012 f!lll95~ JACKSON JMv!ES A 16-15 MICHAEL ST NW 24017 1010196-1 JETER DORIS FREEMAN SELF EMPLOYED 263-1 NEW YORK AVE NW 24017 031519-1-1 JOHNSON REBECCA HUNTER PATIENT ACCT/CARILION ~556 VAN WINKLE RD SW APT 2 2401-1 06061961 JOHNSTON RYNE RYDEN DELIVERY/OFFICE SUPPLY 2840 COLONIAL AVE SW APT C-8 24015 06301959 JONES CATHY PmS ARMORED CAR DRIVER/LOOMS FARGO 727 BULLm AVE SE 24013 0424196-1 JOUR}ITETTE DELORES ARDELIA 2040 GANDY DR NW 24012 07121948 KEELING l\1EL YIN KEYS 3842 LONG MEADOW AVE NW 24017 11081946 KERSMANC KENNETH PAUL CARPENTER/HUFFMAN CONSTRUCTION 4596 1'REVINO CIR NE 24019 07121954 juryrpt.rpt 358 Jury Report Page: Run Date: 1999030 1 2/22 KING DONNA FRALIN 921 CONNECTICUT AVE NE 24012 12231963 LAMAR EUGENE SPEC.IROWE FURNITURE 3834 ROLLING mLL AVE NW 24017 10171952 LAW FREDRIC RONALD DRIVER/ARC 3130 KIRKLAND DR NW 24017 01181944 LINGENFELTER MICHAEL ANlHONY PRODUCTION/ROWE FURN. 720 29TH ST NW 24017 04231969 LODEBOLE BETTY JEAN ACCOUNf ANT/KPMG 2334 OREGON AVE SW 24015 06131960 LOONEY JOYCE ANNE TRUCK DRIVER 5012 VICTORIA ST NW 24017 11081956 MARTIN JULIE FRANCES 3666 FERN CLIFF AVE NW APT49E 24017 05281965 MAYS JUDY ELIZABETH GRAY CUST SERVIL.G. CLINIC 2755 BRANDON AVE SW APT 112 24015 09051945 MELIA PATRICIA DIANNE SALESIRAC 2350 CARLTON RD SW 24015 07301973 MILLER AARON L KITCHEN MGRffEXAS STEAK 2001 COLGATE ST NE 24012 07281975 fvfiLLER RALEIGH LANE RETIRED/DAIRY WORK 706 JAMISON AVE SE APTB 24013 07221934 MITCHELL LINDA FAYE CO~UTEROPERATOR 2226 RUSSELL AVE SW 24015 01171954 MORAN JUDY ANN REAL ESTATE/BARKER REALTY 4335 TELLICO RD NW 24017 12121944 NEWMAN PATRINA HliTSONA-BROWN 1712 JERSEY AVE NW 24017 02051926 · juryrpt.rpt 359 Jury Report Page: Run Date: 19990301 2/22/' NGUYEN TAl KIM ENGINEERIITI 2609 AVENEL AVE SW 24015 08231962 OLTMANNS TODD STUART SOITW ARE INTEGRA TOR 3004 BELLE AVE NE 24012 11101973 PADGETT JENNIFER DEANNA CASHIERIWENDY•s 1716 EMPRESS DR NW APT 9-H 24012 08081979 PADULA MICHELE 4312 OLD SPANISH TRL NW A.PT4 24017 05241947 PAIGE KIMBERLY RUTH 707 HUNT AVE NW APT 59 24012 01011979 PASLEY WTI..LIAI\1 WATSON PHYSICIAN/SELF ErvfPLOYED 1312 SEWELL LANE SW 24015 04221947 PAYNE CAROLYN 1832 STAUNTON AVE NW 24017 110-U958 PERKINS FRANCES WILLIAMS STEW ARDIHOTEL RKE 501 ELM AVE SE 24013 01221938 PETERS GEOFFREY ALAN ASSEtvmLER/CROUSE-mNDS 2811 HUNTINGTON BLVD NW 24012 12191961 POINDEXTER CAROL G NUTRITIONNAMC 3533 F;RNCLIFF AVE NW APTE-59 24017 07211956 POLLARD REBECCA BLANKENSHIP SUPV/K-MART 2830 BELLE AVE NE 24012 12031952 RAKES KATHERINE MCBRIDE PARALEGAUGENTRYLOCKE 162 MONTEREY AVE NE 24012 08271969 REED LINDA REYNOLDS CAMP NURSE 3825 OLD STEVENS RD NW 24017 12171947 RENDON ALICE MAE HOUSEWIFE 4612 PLAYER DR NE 24019 02161947 juryrpt.rpt 360 .~ :/' Jury Report Page: 8 Run Date: 1999030 1 2/22/9 RICE BENJM1IN ERNEST STUDENT 3615 DOGWOOD LANE SW 24015 08281980 ROMAN SONYA MARIE 3020 ORDWAY DR NW APTC 24017 10311969 SIEBER LIBBY LYERLY DENTAL HYGIENIST 1821 GREENWOOD RD SW 24015 07051958 SLATE LEON HUBERT DIETARY AID ElL. G. HOSPITAL ~611 EDGELA WN AVE NW 24017 04211954 SLUSHER JENNIFER JORDAN 928 HOWBERT AVE SW 24015 ~~~ 10071971 SMITH JAMES CURTIS 1606 WAYNE ST NE · APTB 24012 08.141961 SMITH JOYCE DIANNE LPN/ CARILlON 2627 MONTGOMERY AVE SW 24015 10211955 SMITH MARK LORING COUNSELORIB.R. COMNt SERV 2114 WINDSOR AVE SW APT6 24015 073 I 1962 STULTZ JAMES ROBERT ENGINEERIN&W RWY ~~28 NORTHWOOD DR NW 24017 06201947 SWANN JAlviES N SUB ABUSE COUNSELORIBRCS 505 JANETIE AVE SW 24016 01291943 TANNER JANET SIKES HOMEMAKER 1951 AIRVIEW RD SW 24018 01091955 TAYLOR MARGUERITE BAER RETIREDIUSWESTIELCO 2458 MAIDEN LANE SW 24015 06061925 TAYLOR SHANNON ANDRE 2513 CENTRE AVE NW 24017 02161975 fAYLOR-WICI iryrpt.rpt 361 Jury Report -Page: 9 Run Date: 1999030 I 2/22/9 TENCH ROSEMARY HARTBERGER SECRETARY . 1407 PETERS CREEK RD NW 24017 040719.J7 TENZER JOEL RETIRED 3624 PEAK WOOD DR SW 24014 09241932 THO~ SON CYNTHIA CREASY LmRARY ASST/CITY OF RKE 1120 .TOMPKINS AVE SE 24013 07151957 TOLLIVER JOANN CORA EXTEND STAY AMERJCA 1227 CENTRE AVE NW 24017 12151973 TYREE DONALD p ODD JOBS 2522 DELTA DR NW 24017 08091947 VISSCHER CHRISTINE Af.IGELINE · TRAINING -tOOIID/COMM COLlJ:GE 833 WOODS END LANE SW . 24014. {) 10319-J,. . ' . _WALKER. ·. . . BETIY JANE : .. HOlvfEMAKER 14-'5 COVE RD NW 24017 062019-15 WALKER SUE ADAMS CAFTERIA CITY SCHOOLS 37.J7 NEW SPRlNG BRANCH RD 24014 SE 04301948 WASKEY STEPHEN KIRK FINANCIAL ADVISOR!FlRST UNION 2623 LONGVIEW AVE S\V 24014 03141968 WEBB PATRICIA B 1013 HUNT AVE NW 24012 04171962 WEST CONNIE OTEY UNEMPLOYED 3768 PARLIAMENT RD SW APT2 24014 06211964 WHITE DELLA REESE CUST REPfi'RIGON 2754 BRANDON AVE SW APT A-2 24015 12281959 WILEY LINDA COLEMAN 3402 PITTSFIELD CIR NW 24017 08021951 WILLIAMS · NELSON LEE RETIRED/CITY OF R.KE 2328 ST AUNfON AVE NW 24017 03151943 362 juryrpt.rpt Jury Report Page: 10 Run Date: 1999030 1 2/22/9 WOODS PATIUCK HAJ\.fiLTON ACCf TECHICOMM OF REVENUE -'605 SANDERS DR NE 24019 03261971 YAGER WILLIAM E RETIRED/YOKOHAMA 4612 LONG ACRE DR NE 24019 08051932 ZINIMERMAN MARV1N WAYNE JACCUZZI~POOL 1609 7TH ST SE 24013 09181959 . ;, .. juryrpt. rpt 363 364 ~-. -~ ..... ~·. '~ f. "' ~~-li~~- t~. \ I ·.~i'· ,;- }. .. -~~-. .;•: ·' It~ :~·• ..ir-Jx'-'! I 1i 1 ; .{ .J •• ·-:. I)"~~ 1~ : :.l:--:,.-.~~ -.~;- ~ r.-~w·o:i,~-~f ... , ~ ~. t • .. .. . '-' ·'I ...... ;.! JURY LIST BOWLES V. N & W ROANOKE CITY CIRCUIT COURT MARCH 9-11, 1999 NAME, ADDRESS OF JUROR OCCUPATION AGE SPOUSE/OCCUPATION ATKINSON, Leslie Cirelli Caseworker, 42 Douglass., 2503 Creston Avenue, s.w. Senator Warner Sales Rep. Roanoke, Virginia 24015 BAILEY, Robin Lynnette Social Worker, 22 Single 3533 Ferncliff Avenue, N.W. Roanoke City Apartment C-35 Roanoke, Virginia 24017 BELL, Sherman w. Unknown 37 Unknown 1934 Brandon Avenue, S.W. Roanoke, Virginia 24015 BISHOP, Joy Beckner Employee, 44 Unknown 3335 Valley View Ave., N.W. Bell South Roanoke, Virginia 24012 BLANEY, Wanda Fay Word Processor, 39 Unknown 1506 Compton St., N.E. Allstate Roanoke, Virginia 24012 BROWN, Dominique L. Service 22 Unknown 1824 Franwill Ave., N.W. Representative, Roanoke, Virginia 24017 First Union BRYANT, Charlotte Alice Social Worker, 55 Unknown 610 Centre Avenue, N.W. City of Lynchburg Roanoke, Virginia 24016 BURTON, Barry Thomas Accountant, 52 Single 417 Janette Avenue, S.W. Old Virginia Brick Roanoke, Virginia 24016 CAMPBELL, Kirby Mitchell Employee, 42 Single 3563 Bryrnoor Road, s.w. Creative Roanoke, Virginia 24018 Advertising Products CASE, Deborah Jane Bank Clerk, 54 Unknown 4421 Stonewall Road, N.W. First Union Roanoke, Virginia 24017 CLARKE, Eugene Joseph Retired, State 67 Unknown 3296 Somerset Street, s.w. Health Department Roanoke, Virginia 24014 '311/91 ~{JJ ~{) 365 COLES, Susan Kasey Student, 47 John W. , Jr. , 3620 Greenland Ave., N.W. Dominion College Truck Driver Roanoke, Virginia 24012 COLEY, Debra Jean Clerical/ 43 Unknown 4774 Pennsylvania Ave., N.E. Payroll Roanoke, Virginia 24019 COTTON, Carolyn Barnard Retired, 68 William F., 1918 Greenwood Road, s.w. Administrative Retired Roanoke, Virginia 24015 Assistant DYKE, Maryland Elizabeth Customer Service 35 Raymond E. , Sr. , 1639 Michael Street, N.W. Rep., Trigon Lead man Roanoke, Virginia 24017 Blue Cross/Blue Shield ENGLISH, Kelly McLoyd Postal Worker, 50 Patricia, 2313 Portland Avenue, N.W. u.s. Postal Service Teacher's Aide Roanoke, Virginia 24017 EPPS, Susan Gail commercial Artist 41 Douglas, 1722 Patterson Avenue, s.w. General Manager, Roanoke, Virginia 24016 Sign Shop GENTRY, Collin Jefferson Unemployed/Student 19 Single 2803 Burton Avenue, N.W. Apartment 1 Roanoke, Virginia 24012 GRAHAM, Lois Smith Retired, Lazarus; 66 Unknown 640 Mountain Avenue, S.E. Part-time, Ro~noke, Virginia 24013 First Union GREER, Sylvia Hill Health Benefits, 46 Unknown 2217 Jefferson Street, S.W. The TPA Inc. Apartment B Roanoke, Virginia 24014 GUMPERT, Joyce Conner Stylist, Salon 53 Richard T., 915 Gaymont Street, s.w. Owner Self-employed Roanoke, Virginia 24015 HALTERMAN, Jackie T. Administrative 44 Holley E., 4764 Long Acre Drive, N.E. Clerk, Security Truck Driver, Roanoke, Virginia 24019 Services Owner/Operator HANDY, Ernest George Owner, Handy 51 Doris, Social 4017 Richland Avenue, N.W. Auto Sales Services, City Roanoke, Virginia 24012 of Roanoke 2 366 HARKINS, Curtis Patrick 2407 Stanley Avenue,· S.E. Sales, Intermic 55 Susan, Roanoke, Virginia 24014 Technician Housewife HOBART, Kenneth Bruce Vice President, 49 1639 Persinger Road, s.w. Lula M. c., Roanoke, Virginia 24015 University Retired Housing Group HUFFMAN, Jerry Wayne Teacher, Botetourt 44 Single 3505 Hillcrest Avenue, N.W. County Roanoke, Virginia 24012 LAW, Frederic Ronald Driver, ARC 54 3130 Kirkland Drive, N.W. Shirley, Roanoke, Virginia 24017 Call Center Rep. LOONEY, Joyce Anne Truck Driver 42 5012 Victoria Street, N.W. Ralph, Roanoke, Virginia 24017 Self-Employed Truck Driver MILLER, Raleigh Lane Retired, 64 706 Jamison Avenue, S.E. Florence E., Apartment B Dairy Work Retired, Roanoke, Virginia 24013 Salvation Army MORAN, Judy Ann Real Estate/ 54 Single 4335 Tellico Road, N.W. Barker Realty Roanoke, Virginia 24017 OLTMANNS, Todd Stuart Software 25 Heather, 3004 Belle Avenue, N.E. Integrator Roanoke, Virginia 24012 Customer Service Specialist/Student PADULA, Michele Unknown 51 4312 Old Spanish Trl., N.w. Unknown Apartment 4 Roanoke, Virginia 24017 RENDON, Alice Mae 4612 Player Drive, N.E. Housewife 51 Joe M., Roanoke, Virginia 24019 Assembly ROMAN, Sonya Marie Unknown 29 3020 Ordway Drive, N.W. Unknown Apartment c Roanoke, Virginia 24017 SLATE, Leon Hubert Dietary Aide, 44 Single 4611 Edgelawn Avenue, N.W. Lewis-Gale Roanoke, Virginia 24017 Hospital 3 367 TAYLOR, Marguerite Baer Retired, u.s. 73 Unknown 2458 Maiden Lane, s.w. West Tel. Roanoke, Virginia 24015 Co. TAYLOR-WICKER, Melissa Jane 3930 Maine Avenue, N.W. Youth Counselor, 46 Arthur J. Roanoke, Virginia 24017 Juvenile Detention Wicker, III, Center Bus Driver WEBB, Patricia B. Unknown 1013 Hunt Avenue, N.W. 36 Unknown Roanoke, Virginia 24012 4 ASSIGNMENTS OF ERROR 1. The trial court erred in failing to grant NW's motion to strike Plaintiff's evidence, made at the conclusion of Plaintiff's evidence and renewed at the conclusion of all of the evidence, on the grounds that Plaintiff had failed to prove negligence, and further erred in refusing to set aside the verdict and enter judgment for NW as a matter of law on this ground. 2. The trial court erred in failing to grant a continuance when circumstances occurring on the morning of trial created a situation in which NW, despite a timely request, had not been notified of the identity of many jurors on the panel to be used for the trial of the case at least 48 hours before the trial, as required by Virginia Code § 8.01-353, and further erred in refusing to set aside the verdict and order a new trial on this ground. 3. The trial court erred in failing to grant NW's pretrial motion in limine, and its renewed motion at trial, to exclude expert testimony offered by Plaintiff on the ground that the testimony involved matters lying within the common knowledge of the jury, rather than scientif ic, technical, or other specialized knowledge that would assist the trier of fact, and further erred in refusing to set aside the verdict and order a new trial on this ground. 369