Present: All the Justices 

CSX TRANSPORTATION, INC. 

 OPINION BY 

v. Record No. 950235 CHIEF JUSTICE HARRY L. CARRICO 

 November 3, 1995 

PATRICK W. CASALE 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 This is the second time this FELA case has come before this 

Court.1 On the first occasion, Patrick W. Casale (Casale), 

recovered a $1.17 million judgment against his employer, CSX 

Transportation, Inc. (CSX). We reversed the judgment for the 

trial court's error in permitting Casale's medical expert to state 

that his diagnosis had been confirmed by the hearsay opinion of a 

non-testifying physician. CSX Transportation, Inc. v. Casale, 247 

Va. 180, 182-83, 441 S.E.2d 212, 213-14 (1994). 

 We remanded the case for a new trial limited to the issue of 

damages, with the direction that "whatever verdict the plaintiff 

may receive at a new trial shall be reduced by ten percent because 

of the plaintiff's contributory negligence." Id. at 186, 441 

S.E.2d at 216. Upon retrial, the jury returned a verdict in favor 

of Casale for $2 million, which the trial court reduced to $1.8 

million in accordance with our earlier direction. We granted CSX 

an appeal limited to the question whether the trial court erred in 

admitting the testimony of an economist offered by Casale as an 

expert on the subject of Casale's future loss of income. 

 Casale was first employed by CSX in 1988 as a system 

 

 1FELA is an acronym for the Federal Employers' 

Liability Act, 45 U.S.C. § 51 et seq.
maintainer, later becoming a communications maintainer. On 

February 20, 1990, he was working atop a sixty-foot pole repairing 

communication lines that crossed the Roanoke River in the vicinity 

of Weldon, North Carolina. Unexpectedly, a boat snagged a wire 

Casale was attempting to install, causing the pole on which he was 

working to whipsaw and slam him back and forth against the pole. 

As a result, Casale suffered a "chronic lumbosacral spine sprain," 

a "severe left sacro-iliac joint sprain," and "traumatic 

arthritis." 

 From the date of his injury to the time of the second trial, 

Casale was seen by approximately thirteen physicians, most of whom 

prescribed some type of treatment. Yet, Casale still suffered 

pain, discomfort, and depression at the time of trial. He walked 

with a limp and used a cane. His injured sacroiliac hip joint 

dislocated often, he had difficulty sitting for extended periods 

of time, his leg would give way on occasion, and he had problems 

sleeping. He continued to take medication, and he used various 

home remedies to relieve his discomfort. His injuries were 

concededly permanent. 

 During the four years and seven months from the date of his 

injury in February 1990 to the time of the second trial in 

September 1994, Casale missed 543 days from work, or more than 50% 

of the time he was supposed to be on the job. However, most of 

the time was lost in 1990, 1991, and the first nine months of 

1992. In October of 1992, Casale's physician at the time reported 

that Casale could return to work after October 21 "with no 

limitations," and Casale lost no time from work during the 
remainder of 1992. He lost only 18 days in 1993 and 35 days in 

the first eight months of 1994. From the time of the October 1992 

report permitting Casale's return to work until the time of the 

second trial, he was not declared medically disqualified from 

employment with CSX. 

 At the time of the second trial, Casale was still employed by 

CSX as a communications maintainer, receiving $16.12 per hour in 

wages, although CSX had recently abolished his job involving work 

on poles because of reductions in personnel and advances in 

technology. As a result, Casale had sought and obtained 

assignment to CSX's radio repair shop in Rocky Mount, North 

Carolina. Casale had received training in Chicago for his new 

position and was scheduled to report for work on Monday, October 

3, 1994, following the conclusion of the second trial on September 

30, 1994. 

 At the second trial, Casale's counsel announced out of the 

presence of the jury that he intended to call Raymond Strangways, 

an economist, to testify concerning Casale's "lost income." 

Counsel told the court that when Strangways "filed his report with 

us he figured the lost income for some reason back to 1992 and 

into the future." Counsel further said that "[w]e advised 

[Strangways] . . . we did not want to go back to 1992, because Mr. 

Casale had been working" and that Strangways had revised his 

report to calculate Casale's loss "from today forward in the 

future." 

 CSX objected to what it calls Strangways' "lost future wages 

model" on the ground that the witness's testimony would be "based 
on the fact that [Casale] is not working now, from now on, and all 

the evidence is that he is working." CSX stated that the court 

should not "allow [the witness] to testify to something that's 

based on [an incorrect] premise." The trial court overruled CSX's 

objection and admitted Strangways' testimony. Strangways then took 

the stand and testified that, at the direction of Casale's 

counsel, he had calculated Casale's future loss of income on the 

assumption that Casale either would not work at all after 

September 29, 1994, the day Strangways testified, or would work at 

a job paying only the minimum wage. On the assumption that Casale 

would "never . . . work again," Strangways calculated Casale's 

income loss "[s]tarting from today" at $997,000 were he to work 

until age 63, at $1,082,000 until age 65, and at $1,297,000 until 

age 70. On the assumption that Casale would "work in the future 

at a minimum wage job," Strangways calculated Casale's income loss 

at $679,000 were he to work until age 63, at $733,000 until age 

65, and $866,000 until age 70. 

 CSX argues there was no evidence to support Strangways' 

assumption that, beginning with the day after Strangways 

testified, Casale would be permanently disabled from working for 

CSX or would only earn the minimum wage working for someone else. 

Hence, CSX concludes, the trial court should have ruled 

Strangways' testimony inadmissible.2

 

 2CSX also argues on brief that Strangways' "lost future 

wages model" was further flawed because the evidence did not 

support the use of age 70 as the ending date for the 

calculation of Casale's loss of income. CSX correctly 

points out that Casale himself testified he intended to 

retire at age 65. However, because CSX did not timely 

object to Strangways' use of age 70, we will not consider 
 Casale argues on the other hand that "[t]here is evidence to 

support the assumption of Dr. Strangways that Casale would not be 

able to work for . . . CSX [after the date Strangways testified] 

and was unable to work for CSX at the time of trial." 

Furthermore, Casale says, "the calculations of Dr. Strangways were 

supported by specific medical and vocational evidence that Casale 

would never be able to do the radio shop job" in Rocky Mount, 

North Carolina. This job, Casale points out, required him to lift 

and install radios in CSX trains and vehicles and involved 

bending, stooping, crouching, and working in awkward positions. 

Therefore, Casale concludes, the trial court did not err in 

admitting Strangways' testimony. 

 Casale called as witnesses three physicians who testified 

concerning Casale's employment in CSX's radio repair shop in Rocky 

Mount. Dr. Michael Decker, a treating physician, testified that 

he would not "recommend" a job for Casale that involved lifting 

heavy objects, working in awkward positions, and reaching and 

bending. Dr. James Carr, another treating physician, stated that 

it was not "a good idea" for Casale to work in a job that requires 

him "to lift, carry, climb, stoop, crouch, [and] work in cramped 

or confined spaces." Dr. Arthur Wardell, an evaluating physician, 

said that it would not be within Casale's "abilities" to perform 

any work that required the lifting of heavy objects or involved 

bending over and getting into awkward positions. 

(..continued)

the point. Rule 5:25. In any event, the ending date is 

immaterial in view of our holding infra that there was no 

basis for Strangways' use of the day after he testified as 

the beginning date of Casale's loss of income. 
 Casale also called Herman Bates, a vocational 

rehabilitation counselor, who made a vocational evaluation of 

Casale. Bates testified that the "work skills" Casale had 

developed at CSX were not transferable "into other areas" of 

employment and that, "should [Casale] be able to return to work" 

in alternative employment, it would be in a sedentary position 

paying the minimum wage. 

 There are several difficulties with Casale's position that 

"[t]here is evidence to support the assumption of Dr. Strangways 

that Casale would not be able to work for . . . CSX [after the 

date Strangways testified] and was unable to work for CSX at the 

time of trial." In the first place, while Casale wants this Court 

to accept the testimony of his medical witnesses and his 

vocational rehabilitation counselor to support his position, he 

testified himself that he did "have a job" and still "collected a 

paycheck" at the time of trial and that he had sought the job in 

CSX's Rocky Mount radio repair shop, had accepted training in 

preparation for the job, and intended to report for work in his 

new position on the Monday following the conclusion of the second 

trial.3

 

 As a general rule when two or more witnesses 

introduced by a party litigant vary in their statements 

of fact, such party has the right to ask the court or 

 

 3On brief, Casale says he made clear in his testimony 

he had "talked with a co-worker at the [Rocky Mount radio 

repair] shop and found that the job was more demanding than 

he expected and thus he had reservations about working full 

time five days a week eight hours a day." But even after 

testifying in this manner, Casale insisted that he planned 

to report to work on the Monday following the conclusion of 

the second trial. 
jury to accept as true the statements most favorable to 

him. . . . This is not true, however, as to the 

testimony which he gives himself. No litigant can 

successfully ask a court or jury to believe that he has 

not told the truth. His statements of fact and the 

necessary inferences therefrom are binding upon him. He 

cannot be heard to ask that his case be made stronger 

than he makes it, where, as here, it depends upon facts 

within his own knowledge and as to which he has 

testified. 

Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 656 (1922). 

 Casale cannot ask that he be allowed to make his case 

stronger by having this Court accept the favorable evidence 

concerning his alleged inability to work while disregarding his 

own testimony that he was working at the time of the second trial 

and would report for work in his new job the first of the 

following week. These are facts within his own knowledge. He is 

bound by his testimony, and it tends to show that Strangways had 

no basis for his "lost future wages model." But there is more. 

 At different times during the course of the trial, the trial 

judge characterized Strangways' "lost future wages model" in terms 

that can only be described as disparaging. During the discussion 

on CSX's objection to Strangways' testimony, CSX's counsel argued 

that the testimony erroneously would be "based on the fact that 

[Casale is] no longer working." Responding, the trial judge 

indicated that if he were CSX's counsel, he would not object 

because it would be saying to the jury: "[W]e're going to give 

you this stuff and it's absolutely ridiculous. The man is still 

working today." 

 During a discussion on a request by Casale to use during 

closing argument a chart depicting Strangways' model, CSX's 
counsel objected, stating: "[F]or [Casale] to use a visual 

display that's inaccurate is the problem." The trial judge 

responded: "It isn't accurate. It's based on an improper 

assumption." Then, when Casale's counsel asserted that the chart 

was "based on the evidence," the judge replied: "It is based on 

evidence, that is correct, but the evidence has been shown to be 

faulty." Finally, during argument on post-trial motions, the 

judge stated that he had "some concern with . . . the 

admissibility of Dr. Strangways' evidence [because] his 

assumptions are based on facts which are not in evidence." 

 These observations of the trial judge were eminently correct. 

Yet, he felt it was for the jury to determine whether a proper 

foundation had been laid for Strangways' testimony. We take a 

different view. In Swiney v. Overby, 237 Va. 231, 377 S.E.2d 372 

(1989), a wrongful death action, the question was whether the 

trial court erred in admitting expert testimony regarding the 

stopping distance of one of the vehicles involved in an accident. 

 In calculating the stopping distance, the experts used an assumed 

brake condition and speed of the vehicle in question. 

Interpreting Code § 8.01-401.1,4

 we held that admission of the 

 

 4At the time Swiney was decided, Code § 8.01-401.1 read 

as follows: 

 In any civil action any expert witness may give 

testimony and render an opinion or draw inferences from 

facts, circumstances or data made known to or perceived 

by such witness at or before the hearing or trial 

during which he is called upon to testify. The facts, 

circumstances or data relied upon by such witness in 

forming an opinion or drawing inferences, if of a type 

normally relied upon by others in the particular field 

of expertise in forming opinions and drawing 

inferences, need not be admissible in evidence. 
expert testimony was erroneous, stating: 

 Qualification of an expert witness does not insure 

admission of his every statement and opinion. Code 

§ 8.01-401.1 allows an expert to express an opinion 

without initially disclosing the basis for the opinion 

and to base the opinion on hearsay evidence otherwise 

inadmissible. It does not, however, relieve the court 

from its responsibility, when proper objection is made, 

to determine whether the factors required to be included 

in formulating the opinion were actually utilized. If 

all the factors are not utilized, the court should 

exclude the opinion evidence. 

Id. at 233, 377 S.E.2d at 374 (citations omitted). And in Lawson 

v. John Doe, 239 Va. 477, 391 S.E.2d 333 (1990), another wrongful 

death case, the question was whether the trial court erred in 

excluding the testimony of an expert regarding the horizontal 

velocity needed for a board to slide along a pavement to the spot 

where it was found if it started its slide from a point near the 

location where a hat and shirt belonging to the deceased were 

discovered. In affirming the trial court's action, we said: 

 Here, the plaintiff concedes, as, indeed, he must, 

that his expert would have had to assume that the board 

began its slide along the pavement "opposite the 

location of the hat and shirt." No evidence established 

that location as the beginning point of the board's 

slide, and only an assumption could have supplied this 

missing, essential factor. 

 We do not read Code § 8.01-401.1 as sanctioning the 

(..continued)

 The expert may testify in terms of opinion or 

inference and give his reasons therefor without prior 

disclosure of the underlying facts or data, unless the 

court requires otherwise. The expert may in any event 

be required to disclose the underlying facts or data on 

cross-examination. 

A 1994 amendment to Code § 8.01-401.1 pertains to the 

examination of experts concerning statements contained in 

published treatises, periodicals, or pamphlets on certain 

subjects. Acts 1994, c. 328. The amendment is inapposite 

here. 
admission of expert testimony based upon a mere 

assumption which, as here, has no evidentiary support. 

Hence the trial court did not err in excluding the 

proffered testimony. 

Id. at 483, 391 S.E.2d at 336. 

 Furthermore, Code § 8.01-401.1 is based, with minor 

alterations, upon Federal Rules of Evidence 703 and 705, and we 

have held that "the construction given to those rules by the 

federal courts is instructive." McMunn v. Tatum, 237 Va. 558, 

565, 379 S.E.2d 908, 911-12 (1989). In Tyger Constr. Co. v. 

Pensacola Constr. Co., 29 F.3d 137 (4th Cir. 1994), cert. denied, 

___ U.S. ___, 115 S.Ct. 729 (1995), the district court admitted 

the testimony of an expert concerning construction methods and 

assessment of cost overruns on a building project, despite the 

objection that the expert did not have an adequate basis for his 

opinion. The district court held that if an expert does not have 

an adequate basis for his opinion, it is for counsel to bring out 

the deficiencies on cross-examination and for the jury to decide 

what weight, if any, the opinion should be given. Id. at 143. 

 The Fourth Circuit Court of Appeals reversed, stating: 

 It was an abuse of discretion for the trial court 

to admit [the expert's] testimony . . . . The court may 

not abdicate its responsibility to ensure that only 

properly admitted evidence is considered by the jury. 

Expert opinion evidence based on assumptions not 

supported by the record should be excluded. 

Id. 

 In summary, the question before the trial court was one of 

the admissibility of evidence, not its weight -- a strictly legal 

question. It was for the trial court, therefore, not the jury, to 

decide whether the foundation had been laid for the introduction 
of Strangways' testimony. Since the evidence did not support the 

assumption upon which Strangways based his "lost future wages 

model," the trial court should have excluded the testimony. 

 As a last resort, Casale argues that if the admission of 

Strangways' testimony was erroneous, the error was harmless. We 

disagree. Strangways was the only expert economist to testify on 

the question of Casale's future loss of income, and his testimony 

was bound to have made a lasting impression on the jury. The 

conclusion is inescapable that admission of the testimony was 

prejudicial to CSX. 

 For the error in admitting Strangways' testimony, we will 

reverse the judgment of the trial court and remand the case for a 

new trial, limited to the question of damages. Again, we direct 

that whatever verdict Casale may receive at a new trial shall be 

reduced by ten percent because of his contributory negligence. 

Reversed and remanded.