Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
SHIRLEY T. WILLIAMS, Executrix of the Estate of RAYMOND W.
WILLIAMS, Plaintiff, v. CSX TRANSPORTATION, INC., Defendant
Filed: 7 March 2006
1. Evidence--cross-examination_-expert witness--impeachment--opening the door
The trial court did not abuse its discretion in a negligence case arising out of plaintiff's
exposure to asbestos at work by denying defendant the opportunity to cross-examine plaintiff's
pathology expert regarding tests he ordered and reviewed, by allowing plaintiff to cross-examine
and impeach defendant's expert, by admitting testimony about photographs of a steam era
locomotive, and by allowing plaintiff to cross-examine his own witness by playing the cross-
examination of a doctor's videotaped deposition which was initially taken by defendant, because:
(1) the trial court held defendant to its pretrial agreement by preventing the cross-examination of
plaintiff's nontestifying consulting pathology expert since the work product report would not be
in evidence and questioning about the report would cause the jury to speculate on its content; (2)
plaintiff was allowed to impeach defendant's expert regarding his lack of reliance on fiber burden
analysis in an earlier case as this was contrary to his testimony in the present case that such
evidence was the gold standard, and plaintiff was allowed to use a tissue report to impeach
defendant's expert since it was admitted for the limited purpose of impeaching the expert; (3)
testimony about photographs of a steam era locomotive were admissible as relevant rebuttal
evidence when defense expert opened the door to this evidence, and assuming arguendo that the
ruling was error, the testimony elicited was not helpful to plaintiff's position; and (4) the direct
and cross-examination testimony in the deposition of a videotaped expert did not make the expert
either party's witness until the deposition was introduced at trial, and further, defendant enjoyed
the advantage of having its own examination of the expert played by withdrawing its objections
to the playing of the deposition.
2. Evidence; Witnesses--testimony-_medical opinions_-qualifications--causation--
asbestos exposure--lay witness
The trial court did not abuse its discretion in a negligence case arising out of plaintiff's
exposure to asbestos at work by admitting testimony about causation and exposure by permitting
nonphysicians including a cell biologist and an epidemiologist to provide expert medical
opinions as to causation, and by allowing lay witnesses' testimony regarding asbestos exposure,
because: (1) the two witnesses were qualified by experience, training, and education with
specialized scientific knowledge regarding the development of mesothelioma; and (2) the
testimony of plaintiff's former coworkers was rationally based on these lay witnesses's
perceptions of their working conditions.
3. Evidence--testimony--medical literature concerning dangers of asbestos exposure--
foreseeability--actual or constructive knowledge
The trial court did not err in a negligence case arising out of plaintiff's exposure to
asbestos at work by admitting testimony regarding the medical literature concerning the dangers
of asbestos exposure without requiring a showing that defendant had actual or constructive
knowledge about the potential harm, because: (1) from the medical literature presented, the jury
could infer that defendant had knowledge of the harm from asbestos; and (2) there was testimony
that even after OSHA regulations required that workers be protected from asbestos exposure,
plaintiff and his coworkers were not informed about ways to protect themselves.
4. Negligence--failure to instruct--contributory negligence--specific contentions
The trial court did not err in a negligence case arising out of plaintiff's exposure to
asbestos at work by failing to instruct the jury on contributory negligence and defendant's
specific contentions, because: (1) although defendant contends plaintiff's history of smoking was
a factor meriting a contributory negligence instruction, it is well established that smoking and
mesothelioma are not related; and (2) considering the instructions as a whole, defendant's
contentions were adequately given to the jury in substance.
5. Negligence--motion for new trial--motion for directed verdict--motion for judgment
The trial court did not err in a negligence case arising out of plaintiff's exposure to
asbestos at work by denying defendant's post-trial motions for a new trial, directed verdict, and
judgment notwithstanding the verdict, because: (1) the evidence in the case contained a genuine
issue of material fact as to causation due to conflicting expert testimony, and the trial court
appropriately allowed expert testimony on both sides; (2) the trial court did not abuse its
discretion by calling a two-week recess in the trial since the parties were well informed of and
did not object to the trial court's time restraints at either the outset of trial or at the time of the
recess; and (3) the trial court found the amount of damages awarded by the jury was justified by
the evidence and that defendant had agreed to the jury charge regarding damages, and no
substantial miscarriage of justice would result from upholding the trial court's ruling denying
defendant's motion for a new trial.
Appeal by defendant from judgment entered 1 October 2004 and
orders entered 6 January 2005 by Judge B. Craig Ellis in Scotland
County Superior Court. Heard in the Court of Appeals 9 January
Jones Martin Parris & Tessener Law Offices, P.L.L.C., by H.
Forest Horne, Jr. and E. Spencer Parris, for plaintiff-
Millberg, Gordon & Stewart, P.L.L.C., by Frank J. Gordon, and
Jordan & Moses, by Randall A. Jordan and Mary Helen Moses, for
MARTIN, Chief Judge.
Raymond Williams (Williams) filed this action against his
employer, CSX Transportation, Inc. (CSX), under the Federal
Employers' Liability Act (FELA), alleging that he was regularlyexposed to asbestos and asbestos containing materials by CSX and
that CSX failed to warn him about the dangers of asbestos exposure.
He further alleged that as a direct and proximate result of CSX's
negligence, and his exposure to asbestos, he developed malignant
mesothelioma requiring the surgical removal of a lung. The parties
stipulated that Williams worked for CSX and its predecessor
railroad from 1962 until his retirement in 1999.
At trial, plaintiff Williams introduced evidence that tended
to show that CSX, as a member of the Association of American
Railroads (AAR), knew as early as 1937 that asbestos generated
toxic dusts. A report from the AAR annual meeting in 1937
discussed ways to identify these hazards and reduce employee
exposure. In addition, there was testimony that the AAR's meeting
minutes for 1958 contained information that asbestos was
carcinogenic and their official industrial hygiene publication
summarized articles about asbestos exposure and dust control.
Dr. John Dement, an industrial hygienist, testified that most
researchers would accept 1960 as the date where a causal
relationship between mesothelioma and asbestos exposure was
definitively established. Dr. Dement further testified that the
federal government, under OSHA, required air sampling and other
asbestos protections beginning in the 1970s. Dr. Dement opined
that information about the dangers of asbestos exposure and
necessary precautions to protect workers was widely available while
plaintiff worked for CSX. Williams also introduced a letter fromthe railroad's Chief Medical Officer, dated 1977, indicating that
mesothelioma was linked to asbestos exposure.
There was evidence that CSX did not conduct any air sampling
for asbestos hazards until sometime after hiring Mark Badders,
CSX's first industrial hygienist in 1980. A 1986 asbestos air
sampling report prepared for CSX established that asbestos dust in
excess of safe levels was created when asbestos siding was cut with
a saw. It also noted that these results may have been low due to
other dust particles in the air sample. A 1996 survey of CSX's
Hamlet, North Carolina facility, where Williams worked for the
majority of his career, indicated large quantities of asbestos in
pipe insulation and siding, wall, and roof panels. Asbestos was
also used in various train components, such as brakes.
Williams introduced evidence that he was exposed to asbestos
dust while working around craftsmen who manipulated asbestos
containing materials and while working around the construction,
repair, and demolition of buildings containing asbestos siding.
Williams and his former co-workers testified that asbestos debris
was regularly cleaned up using air hoses and brooms, which moved
dust into the air, and that they were never instructed by CSX to
take precautions because asbestos was harmful.
Williams and his family testified that as a result of
developing mesothelioma, his entire left lung was surgically
removed and his stomach then migrated into his empty chest cavity
and required a second surgery. He underwent several rounds ofchemotherapy to treat his cancer. He also testified as to his
pain, which required the daily use of pain medication.
Dr. David Harpole, Williams' lung surgeon, and Dr. John
Anagnost, Williams' oncologist, both opined that Williams' asbestos
exposure caused his mesothelioma. They further attested to his
poor prognosis, pain, and shortened life expectancy. Cell
biologist Dr. Arnold R. Brody, an expert in lung pathology,
industrial hygienist Dr. Dement, and pathologist Dr. Steven Dikman
all testified that Williams' exposure to asbestos caused his
Williams also presented the videotaped deposition of another
pathologist, Dr. Victor Roggli, who examined four sections of his
lung tissue for asbestos bodies with an electron microscope. Dr.
Roggli reported asbestos bodies counts of 37, 27, 3.3, and 3.2 in
the four lung tissue samples and averaged the results of these
samples to get levels of asbestos bodies that were below his
laboratory's normal value of 20. This led him to conclude that
Williams' mesolthelioma was idiopathic, or not related to his
On cross-examination, however, Dr. Roggli also testified that
his conclusion was based solely on his review of these tissue
samples and that consideration of other factors would be
appropriate. Dr. Roggli further explained that 94% of pleural
mesotheliomas in males were caused by asbestos exposure and
acknowledged the possibility that Williams' mesothelioma was
related to asbestos exposure. He explained that tissue testing wasnot a perfect indicator and admitted asbestos fibers may have
cleared from Williams' lung thereafter, rendering them undetectable
by fiber burden analysis.
Williams presented expert testimony regarding Dr. Roggli's
test results. Dr. Brody explained the ability of the lungs to
clear asbestos and that fiber burden analysis and other tests for
presence of asbestos in lung tissue are not the sole factor in
diagnosing mesothelioma. He noted that it was not necessarily
common practice to average asbestos body counts as Dr. Roggli had
done and testified that in his scientific opinion the high sample
amounts indicated asbestos exposure. Dr. Dement testified that
even brief or low exposures of asbestos at work could be considered
related to mesothelioma. Dr. Dement also testified that it was his
scientific opinion that Williams' mesothelioma was attributable to
occupational asbestos exposure.
At the close of Williams' evidence, CSX moved for a directed
verdict, which the trial court denied. CSX then presented
evidence, including expert testimony from industrial hygienists
Mark Badders, Larry Liukonen and Dr. Francis Weir, pulmonary
medicine experts Dr. Bernard Gee and Dr. James Crapo, pathology
expert Dr. Michael Graham, and radiology expert Dr. Peter Barrett,
all of whom testified to their belief that Williams' mesothelioma
was not caused by asbestos exposure for which CSX could be held
The parties agreed upon the jury instructions at the charge
conference with the exception of defendant's request to charge thejury on comparative or contributory negligence. CSX requested a
charge on contributory negligence, contending that plaintiff's
history of smoking gave rise to the issue. The trial court denied
the request, citing the fact that both Williams' and CSX's experts
testified that smoking is irrelevant to the development of
mesothelioma. The trial court agreed, however, to instruct the
jury to consider Williams' health, habits, and constitution in
determining plaintiff's life expectancy when calculating the amount
of damages. Defendant also requested additional jury instructions
regarding its contentions, which the trial court denied.
The jury returned a verdict by which it found that defendant
CSX was negligent, that such negligence caused injury to plaintiff
Williams, and that Williams had been damaged in the amount of
$7,500,000.00. Defendant's motions for judgment notwithstanding
the verdict and for a new trial were denied, and the judgment was
entered on the verdict. After the entry of the verdict, plaintiff
died and Shirley T. Williams, Executrix of the Estate of Raymond W.
Williams, was substituted as plaintiff-appellee. CSX appeals.
On appeal, defendant brings forward twenty-six assignments of
error in eleven arguments. Defendant argues that the trial court
made numerous errors by I) allowing cross-examination of witnesses,
II) admitting non-expert testimony regarding plaintiff's asbestos
exposure and causation of his mesothelioma, III) admitting evidence
of foreseeability without a proper foundation as to CSX's
knowledge, IV) denying defendant's requested jury instructions, andV) denying defendant's post-trial motions. After careful
consideration of CSX's arguments, we find no error.
 CSX alleges four discrete errors in rulings by the trial
court regarding the cross-examination of witnesses. CSX contends
that the trial court erroneously 1) denied CSX the opportunity to
cross-examine Williams' pathology expert, Dr. Steven Dikman,
regarding tests he ordered and reviewed; 2) allowed plaintiff to
cross-examine and impeach CSX expert Dr. James Crapo; 3) admitted
testimony about photographs of a steam era locomotive; and 4)
allowed plaintiff to cross-examine his own witness by playing the
cross-examination from Dr. Roggli's videotaped deposition which was
initially taken by CSX.
Rule 611(b) of the Rules of Evidence provides: A witness may
be cross-examined on any matter relevant to any issue in the case,
including credibility. N.C. Gen. Stat. § 8C-1, Rule 611(b)
(2005). The trial court is vested with broad discretion in
controlling the scope of cross-examination and a ruling by the
trial court should not be disturbed absent an abuse of discretion
and a showing that the ruling was so arbitrary that it could not
have been the result of a reasoned decision. Jones v. Rochelle,
125 N.C. App. 82, 85-86, 479 S.E.2d 231, 233, disc. review denied,
346 N.C. 178, 486 S.E.2d 205 (1997). Furthermore, an expert may be
required to disclose the facts, data, and opinions underlying the
expert's opinion not previously disclosed. . . . [and] may be
cross-examined with respect to material reviewed by the expert butupon which the expert does not rely. State v. Black, 111 N.C.
App. 284, 294, 432 S.E.2d 710, 717 (1993) (citation omitted).
CSX relies on State v. Black to support its argument that it
should have been permitted to cross-examine Dr. Dikman concerning
a pathology report by Dr. Gordon, despite Dr. Dikman's assertions
that he did not rely on Dr. Gordon's report. Prior to trial,
however, plaintiff Williams filed a motion for a protective order
regarding Dr. Gordon's status as a consulting expert pursuant to
Rule 26(b)(4) of the Rules of Civil Procedure, and prior to the
hearing on the motion CSX agreed not to seek information regarding
Dr. Gordon. Accordingly, the trial court allowed plaintiff
Williams' motion in limine and precluded defendant from questioning
Dr. Gordon about the work-product report that a non-testifying
consulting expert prepared; especially since the work product
report would not be in evidence and questioning about the report
would cause the jury to speculate on its content. Thus, the trial
court did not abuse its discretion in holding CSX to its pre-trial
agreement and preventing the cross-examination of Dr. Dikman about
Dr. Gordon, and this assignment of error is overruled.
Concerning the cross-examination of defendant's expert, Dr.
Crapo, CSX contends the trial court allowed entirely unrelated and
irrelevant testimony regarding Dr. Crapo's testimony as an expert
witness in another case. Dr. Crapo testified at trial that fiber
burden analysis was the gold standard test necessary for
diagnosing asbestos induced mesothelioma. Dr. Crapo concluded that
Williams' mesothelioma was idiopathic because Dr. Roggli's fiberburden analysis did not indicate Williams had abnormal asbestos
exposure. On cross-examination, Williams sought to impeach Dr.
Crapo by inquiring about his expert testimony in an earlier case in
which Dr. Crapo concluded, despite a negative fiber burden
analysis, that plaintiff had asbestos related mesothelioma.
The range of facts that may be inquired into [on cross-
examination] is virtually unlimited except by the general
requirement of relevancy and the trial judge's discretionary power
to keep the examination within reasonable bounds. State v.
Freeman, 319 N.C. 609, 617, 356 S.E.2d 765, 769 (1987). We do not
believe the trial court abused its discretion in permitting the
plaintiff to impeach Dr. Crapo regarding his lack of reliance on
fiber burden analysis in the earlier case as this was contrary to
his testimony in the present case that such evidence was the gold
standard. Defendant also complains that the tissue report that
plaintiff used to impeach Dr. Crapo should not have been admitted
as it was unauthenticated hearsay. The report, however, was not
admitted for the truth of the matter asserted, but for the limited
purpose of impeaching Dr. Crapo. See Sterling v. Gil Soucy
Trucking, Ltd., 146 N.C. App. 173, 178, 552 S.E.2d 674, 677 (2001)
(holding no error when admitting school records for impeachment
purposes). Accordingly, this assignment of error is overruled.
Additionally, CSX complains that the trial court impermissibly
admitted testimony about irrelevant photographs of steam era
locomotives because the evidence was clear that Williams never
worked with those trains. As noted above, the trial court controlsthe nature and scope of the cross-examination in the interest of
justice and confines the testimony to competent, relevant and
material evidence. McClain v. Otis Elevator Co., 106 N.C. App. 45,
49, 415 S.E.2d 78, 80 (1992) (citation omitted). Evidence that is
not otherwise admissible may be offered to explain or rebut
evidence elicited by the defendant, and this evidence is
admissible even though such latter evidence would be incompetent
or irrelevant had it been offered initially. Maglione v. Aegis
Family Health Ctrs., 168 N.C. App. 49, 61, 607 S.E.2d 286, 294
(2005) (citations omitted). In determining relevant rebuttal
evidence, we grant the trial court great deference, id., and we
do not disturb its rulings absent an abuse of discretion and a
showing that the ruling was so arbitrary that it could not have
been the result of a reasoned decision. McClain, 106 N.C. App. at
49, 415 S.E.2d at 80.
Dr. Weir had testified that railroad workers were not heavily
exposed to asbestos in the steam era. On cross-examination,
Williams' counsel apparently showed Dr. Weir a photograph of a
steam locomotive, in which it appeared that workers were being
exposed to an asbestos covered steam engine. The trial court
overruled CSX's objection that the photograph was irrelevant. The
trial court did not abuse its discretion in allowing this testimony
about the photograph because Dr. Weir opened the door. Even
assuming arguendo the ruling was in error, we note that the
testimony elicited was not helpful to plaintiff's position. Dr.
Weir stated that the asbestos on a steam engine was inert and didnot subject the workers to the risk of contracting asbestos
disease, helping to explain why in his opinion defendant was
unaware of asbestos disease in the early 1930s. CSX could not have
been prejudiced, and this argument is overruled.
Finally, CSX complains the trial court erroneously allowed
plaintiff Williams to play the videotaped cross-examination of Dr.
Roggli because Williams had adopted Dr. Roggli as his witness.
According to Rule 32 of the Rules of Civil Procedure:
A party does not make a person his own witness
for any purpose by taking his deposition. The
introduction in evidence of the deposition or
any part thereof for any purpose other than
that of contradicting or impeaching the
deponent makes the deponent the witness of the
party introducing the deposition.
N.C. Gen. Stat. § 1A-1, Rule 32(c) (2005).
The direct and cross-examination testimony in the deposition
did not make Dr. Roggli either party's witness until the deposition
was introduced at trial. While it is generally true that a party
cannot lead its own witness, it is firmly entrenched in the law of
this State that it is within the sound discretion of the trial
judge to determine whether counsel shall be permitted to ask
leading questions, and in the absence of abuse the exercise of such
discretion will not be disturbed on appeal. State v. Greene, 285
N.C. 482, 492, 206 S.E.2d 229, 235 (1974).
Here, plaintiff Williams informed the trial court of his
intent to offer the videotaped deposition of Dr. Roggli, who was
originally deposed by CSX and cross-examined by plaintiff.
Williams informed the trial court prior to playing the videotapethat CSX might need to be heard; however, CSX withdrew its
objections. Then, after the direct examination portion of the
videotaped deposition played, CSX objected to playing the cross-
examination, arguing that plaintiff had adopted Dr. Roggli as his
witness and, therefore, could not play the cross-examination since
Williams would be leading his own witness. Defendant has not shown
the trial court abused its discretion in permitting the plaintiff
to play the cross-examination portion of Dr. Roggli's deposition,
especially since CSX enjoyed the advantage of having its own
examination of Dr. Roggli played by withdrawing its objections to
the playing of the deposition. A party may not complain of action
which he induced. Frugard v. Pritchard, 338 N.C. 508, 512, 450
S.E.2d 744, 746 (1994). Therefore, we overrule this assignment of
II. Causation and Exposure
 Next, CSX maintains that the trial court erroneously
admitted testimony about causation and exposure by 1) permitting
non-physicians Dr. Brody and Dr. Dement, a cell biologist and an
epidemiologist respectively, to provide expert medical opinions as
to causation, and 2) allowing lay witnesses' testimony regarding
CSX contends that the medical opinions offered by plaintiff
Williams' physicians were not admissible because their testimony
reflected an unscientific analysis and investigation about the
cause of his mesothelioma due to their reliance on Williams'
assertions regarding his exposure to asbestos. Defendant alsomaintains that in an effort to bolster the medical doctors'
contentions, the trial court also erroneously admitted improper
testimony from Drs. Brody and Dement regarding causation.
If the trial court determines that scientific, technical or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion. N.C.
Gen. Stat. § 8C-1, Rule 702 (2005). We review a trial court's
admission of expert testimony for abuse of discretion. Floyd v.
McGill, 156 N.C. App. 29, 38, 575 S.E.2d 789, 795, disc. review
denied, 357 N.C. 163, 580 S.E.2d 364 (2003). Expert testimony is
not limited to those witnesses who are licensed in some particular
field of endeavor, nor limited by whether such witnesses employ
their skills professionally or commercially. Maloney v. Hospital
Systems, 45 N.C. App. 172, 178, 262 S.E.2d 680, 684, disc. review
denied, 300 N.C. 375, 267 S.E.2d 676 (1980). This Court has
previously declined to establish a preferred or exclusive class
among medical expert witnesses. Id.
Dr. Brody is the vice chairman of the pathology department at
Tulane University Medical School, and he earned a Ph.D. in cell
biology. Prior to going to work at Tulane, he was the head of the
Lung Pathology Laboratory at the National Institute of
Environmental Health Sciences for fifteen years. He is published
in peer-reviewed journals and medical textbooks and has been
studying asbestos diseases and pathology since 1974. Dr. Dement isa research professor in Environmental Medicine at Duke University,
who works as an industrial hygienist and epidemiologist. He has a
masters degree in industrial hygiene from the Harvard School of
Public Health and an Ph.D. from the University of North Carolina at
Chapel Hill, and he has worked in the field for over thirty years.
His doctoral research focused on the relationship between
occupational asbestos exposure and mesothelioma, and he is widely
published in peer-reviewed journals. Moreover, defendant did not
object to his qualifications as an expert in his field. The trial
court did not err in concluding that Dr. Brody and Dr. Dement were
qualified by experience, training, and education with specialized
scientific knowledge regarding the development of mesothelioma.
Nor did it abuse its discretion in permitting their testimony.
This argument is overruled.
Defendant also argues that plaintiff's former co-workers
provided improper lay opinion testimony. We disagree. Lay
witnesses can testify in the form of opinions or inferences which
are (a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of his testimony or the
determination of a fact in issue. N.C. Gen. Stat. § 8C-1, Rule
701 (2005). Here, Jimmy Strickland and Robert McEwen testified
that they regularly worked with asbestos, which was brittle and
frequently crumbled, creating dust, in the shops that Williams
supervised. As a result, Williams was exposed to this dust. We
hold this testimony was rationally based on these lay witnesses'perception of their working conditions. Thus, the trial court did
not err in admitting this testimony.
 Next, CSX contends the trial court erred by admitting
testimony regarding the medical literature concerning the dangers
of asbestos exposure without requiring a showing that CSX had
actual or constructive knowledge about the potential harm. [A]n
employer will not be held liable for an employee's injury if it had
no reasonable way of knowing about the hazard that caused the
injury. McKeithan v. CSX Transportation, Inc., 113 N.C. App. 818,
821, 440 S.E.2d 312, 314 (1994). Under the liberal construction
accorded FELA, however, if the railroad's negligence played any
part, even the slightest, in causing the employee's injury, the
plaintiff should recover. Id. Despite this lenient standard, the
usual common law criteria of negligence, including reasonable
foreseeability that the defendant's action or omission might result
in injury, must be met. Id. As an illustration of how lenient
the FELA standard is regarding foreseeability, this Court in
McKeithan cited a United States Supreme Court case where the
verdict for an injured worker was upheld for injuries sustained as
a result of his being bitten by an insect while he was working near
a pool of stagnant water because the railroad was negligent in
allowing a fetid pool to exist. Id.
Williams presented testimony regarding 1) the medical
literature dating from the 1960s that asbestos caused harm, 2)
CSX's membership in the AAR, whose publications and annual meetingminutes acknowledged the danger of asbestos exposure beginning in
1937, and 3) documents from CSX's medical officer dating from the
1970s about the dangers of asbestos. From this evidence, the jury
could infer that CSX had knowledge of the harm from asbestos.
Defendant does not argue that CSX had no knowledge of the
information presented at the AAR meetings. Cf. Bagley v. CSX
Transp., Inc., 465 S.E.2d 706, 708 (Ga. Ct. App. 1995) (holding no
error in grant of summary judgment where there was absolutely no
evidence of record that CSX had actual or constructive knowledge of
the topics discussed at meetings which took place before its
formation; therefore, it was not possible to impute, as a matter
of law, this knowledge to CSX). Moreover, there was testimony that
even after OSHA regulations required workers be protected from
asbestos exposure, plaintiff and his coworkers were not informed
about ways to protect themselves. This assignment of error is
IV. Jury Instructions
 CSX contends the trial court erred in failing to instruct
the jury on 1) comparative negligence and 2) CSX's specific
We consider and review jury instructions in their entirety,
and under this standard of review, it is not enough for the
appealing party to show that error occurred in the jury
instructions; rather, it must be demonstrated that such error was
likely, in light of the entire charge, to mislead the jury.
Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 524, 361S.E.2d 909, 917 (1987), disc. review denied 321 N.C. 474, 364
S.E.2d 924 (1988). FELA established a comparative negligence
scheme, so that contributory negligence of an injured worker is not
a bar to recovery but the damages shall be diminished by the jury
in proportion to the amount of negligence attributable to such
employee. 45 U.S.C. § 53 (2005); see Conrail v. Gottshall, 512
U.S. 532, 542, 129 L. Ed. 2d 427, 440 (1994) (noting that to
further FELA's humanitarian purposes, Congress did away with
several common-law tort defenses that had effectively barred
recovery by injured workers [including rejection of] the doctrine
of contributory negligence). When determining the sufficiency of
the evidence to justify submission of contributory negligence, we
consider defendant's evidence and all reasonable inferences in the
light most favorable to the defendant. Radford v. Norris, 74 N.C.
App. 87, 88, 327 S.E.2d 620, 621, disc. review denied, 314 N.C.
117, 332 S.E.2d 483 (1985). An instruction, however, will not be
supported by [e]vidence which merely raises a conjecture as to
plaintiff's negligence. Id.
We note that the trial court and the parties initially used
the term comparative when outlining the issues to be discussed at
the charge conference, and defendant's brief argues the trial court
erred by failing to charge the jury on comparative negligence. The
requested instruction contained in the record on appeal and the
language used during the charge conference, however, refer to
contributory negligence; therefore, we also use that term. First,
CSX contends that William's history of smoking was a factormeriting a contributory negligence instruction. Defendant
thoroughly cross-examined Williams about his smoking and his
related ill health. As defendant's experts testified, it is well
established that smoking and mesothelioma are not related. In
light of this testimony, we do not believe the trial court erred in
failing to give the requested contributory negligence instruction.
Defendant has not shown error, in light of the entire charge, that
misled the jury. This argument is overruled.
Second, CSX argues the trial court erred in failing to give
its requested instructions regarding their contentions. The trial
court is required to give a party's requested instructions when
they are correct and supported by the evidence; however, they need
not be given exactly as submitted, but must only be given in
substance. Robinson, 87 N.C. App. at 526, 361 S.E.2d at 918.
Here, prior to the 10 September 2004 recess, the trial court
conducted the charge conference, and with the exception of the
requested instruction on comparative negligence, the parties agreed
to the instructions. Then, just prior to closing arguments,
defense counsel requested that the trial court instruct the jury as
Defendant denies each of the plaintiff's
allegations in this case and contends that
(1) plaintiff Raymond Williams was not
exposed to asbestos dust in any significant or
(2) CSX was not negligent with respect to
the safety of the plaintiff's workplace, and
(3) the plaintiff's mesothelioma was not
caused by exposure to asbestos.
The trial court declined, instead instructing the jury in pertinent
the burden is on plaintiff Raymond Williams to
establish, by the greater weight of the
evidence, in the case the following facts:
First that defendant CSX was negligent in one
or more of the particulars alleged, and
second, that the defendant CSX's negligence
caused or contributed, in whole or in part, to
some injury and consequent damage sustained by
the plaintiff Raymond Williams.
Plaintiff Raymond Williams alleges that the
defendant CSX's conduct . . . was negligent in
the following particulars: CSX knew or should
have known that asbestos dust was a hazard to
which its employees were exposed. CSX knew or
should have known that asbestos dust could
cause lung diseases. CSX knew or should have
known how to reduce asbestos dust hazards, but
did not reduce asbestos dust hazards. CSX
should have warned employees that exposure to
asbestos dust could cause lung diseases, but
CSX did not warn its employees that exposure
to asbestos dust could be harmful. The
defendant denies each of these allegations.
The trial court reiterated that the burden of proof was on
plaintiff in the instructions for each element of negligence, and
again when charging on the issue of damages. Defendant's
contentions are essentially denials of plaintiff's allegations.
Thus, considering the instructions as a whole, defendant's
contentions were adequately given to the jury in substance.
Accordingly, this assignment of error is overruled.
V. Post Trial Motions
 Defendant's remaining arguments relate to the denial of
his post-trial motions. CSX maintains that the trial court erred
in denying defendant's motions for new trial, directed verdict, and
judgment notwithstanding the verdict. In support of thesearguments, defendant contends that 1) federal law requires more
proof than was proffered in this case, 2) the recess taken to
accommodate the trial court's personal plans prevented CSX from
receiving a fair trial, and 3) the verdict after a long recess and
short deliberations indicates that the jury did not base the
verdict on the evidence. We will address each of these contentions
A motion for directed verdict pursuant to G.S. § 1A-1, Rule
50(a) tests the sufficiency of the evidence to support a verdict
for the non-moving party, [and a] motion for judgment
notwithstanding the verdict pursuant to G.S. § 1A-1, Rule 50(b) is
essentially a renewal of an earlier motion for directed verdict.
Whaley v. White Consol. Indus., Inc.
, 144 N.C. App. 88, 92, 548
S.E.2d 177, 180 (citations omitted), disc. review denied,
229, 555 S.E.2d 277 (2001). The trial court applies the same test
for each motion, taking the non-movant's evidence as true and
considering it in the light most favorable to him, giving to the
non-movant the benefit of every reasonable inference that may
legitimately be drawn from the evidence with contradictions,
conflicts, and inconsistencies being resolved in the non-movant's
A motion for directed verdict or judgment
notwithstanding the verdict should only be denied where the
evidence is insufficient to justify a verdict for the plaintiff,
and a motion for a new trial pursuant to G.S. § 1A-1, Rule 59 is
addressed to the trial court's discretion. Id.
Defendant maintains that because federal case law governs FELA
actions, this case should never have gone to a jury. To support
this contention, CSX analogizes this case to that of Wills v.
Amarada Hess Corp.
, 379 F.3d 32 (2d Cir. 2004), cert. denied
U.S. ___, 163 L. Ed. 2d 64 (2005). We are not persuaded. In
, the district court excluded the plaintiff's expert
testimony, necessary to show causation, because it was based on a
controversial theory and on animal tests rather than on
scientific studies on human subjects. Id.
at 38-40. As a result
of the plaintiff's failure to meet the burden of proof, defendant-
employer was granted summary judgment. Id.
at 40. Affirming the
district court's grant of summary judgment, the Second Circuit
recognized the district court's broad discretion governing
discovery matters and analyzed the rest of the plaintiff's
at 41-42. Plaintiff argued Mr. Wills' squamous cell
carcinoma was caused from exposure to toxic fumes on defendant's
ships, but there was expert testimony to show squamous cell
carcinoma can be caused by smoking, a fact that plaintiff's
expert's testimony did not consider. Id.
at 50. In contrast, the
evidence in the case below contained a genuine issue of material
fact as to causation due to conflicting expert testimony. The
trial court appropriately allowed expert testimony on both sides;
accordingly, we defer to the actions of the trial court, as the
Second Circuit did in Wills
Regarding CSX's contention that it was deprived of a fair
trial because of the recess, we note that the trial court haslarge discretionary power as to the conduct of a trial and in
the absence of controlling statutory provisions or established
rules, all matters relating to the orderly conduct of the trial or
which involve the proper administration of justice in the court,
are within the trial court's discretion and are reviewed only for
abuse of that discretion. State v. Waddell
, 351 N.C. 413, 423,
527 S.E.2d 644, 651 (2000).
Prior to jury selection, the trial judge informed the parties
that due to his personal travel plans, if the trial were not
completed in two weeks, there would be a two-week recess before the
conclusion. Neither party moved to continue based on this
information. On 10 September 2004, the evidentiary phase of the
trial was concluded. The trial court informed the jurors of the
two-week recess, instructing them not to discuss or come to any
conclusions regarding the case, and then held the charge
conference. The trial court did not abuse its discretion in
calling this recess, since the parties were well informed of and
did not object to the trial court's time restraints at either the
outset of trial or at the time of the recess.
Finally, when denying the motion for a new trial, the trial
court found the amount of damages awarded by the jury was justified
by the evidence and that defendant had agreed to the jury charge
22. Plaintiff introduced evidence that as a
result of developing mesothelioma, his entire
left lung was surgically removed. The evidence
showed that Plaintiff suffered significant
physical pain and mental anguish as a result
of that surgical procedure. Plaintiff had toundergo a second surgery when his stomach
migrated into his empty chest cavity, a
complication of the lung removal surgery.
During the surgery to remove Plaintiff's
stomach from his chest cavity, doctor's [sic]
discovered that the cancer had spread to his
stomach. Plaintiff, by the time of trial, had
undergone 3 full rounds of chemotherapy, with
multiple treatments. After his lung removal
surgery, Plaintiff had to take numerous pain
pills and other pills daily. Plaintiff's
doctors testified that he did not have long to
live; that Plaintiff had months rather than
years to live. The evidence established that
plaintiff could expect to die a painful death.
The life expectancy tables were offered into
evidence and Plaintiff's life expectancy,
pursuant to statute, was approximately 21
years. The jury awarded damages in part for
the loss of twenty years of Plaintiff's life.
Plaintiff's evidence was that he had past
unreimbursed medical expenses of nearly
$80,000 and past and future lost wages from a
part-time job of nearly $80,000.
23. Plaintiff, Plaintiff's daughter, and
Plaintiff's stepson, in addition to medical
witnesses, testified about Plaintiff's
physical pain, mental suffering, and how the
cancer and medical treatment had affected his
24. Contrary to Defendant's implication,
Plaintiff's counsel did not argue in closing
arguments that the jury should award punitive
damages. Regardless, Defense counsel did not
request that the closing argument be recorded
and did not object to any of Plaintiff's
closing with respect to damages. The Court
specifically instructed the jury that punitive
damages were not recoverable and should not be
awarded, and there is nothing to indicate any
portion of the verdict was for punitive
Absent an obvious 'substantial miscarriage of justice,' this Court
cannot overturn a trial court's denial of a motion for new trial.
Hawley v. Cash
, 155 N.C. App. 580, 585, 574 S.E.2d 684, 688 (2002).
Based on our review of the record, we find no substantialmiscarriage of justice that would result from upholding the trial
court's ruling denying defendant's motion for a new trial.
Judges McGEE and STEELMAN concur.
*** Converted from WordPerfect ***