Present: All the Justices 

NORFOLK SOUTHERN RAILWAY COMPANY, 

SUCCESSOR IN INTEREST TO NORFOLK AND 

WESTERN RAILWAY COMPANY 

v. Record No. 050160 OPINION BY JUSTICE CYNTHIA D. KINSER 

 November 4, 2005 

DALE ROGERS 

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

James A. Cales, Jr., Judge 

This appeal involves an action brought by Dale Rogers 

under the Federal Employers’ Liability Act (FELA), 45 

U.S.C. §§ 51–60 (2000), against Norfolk Southern Railway 

Company.1

 Rogers alleged that, during his employment at 

Norfolk Southern, he was exposed to both asbestos and 

silica, Norfolk Southern knew or should have known about 

such exposure, and despite such knowledge, Norfolk Southern 

failed to provide him with a reasonably safe place to work. 

A jury returned a verdict in favor of Rogers with regard to 

his silicosis claim.2

On appeal, Norfolk Southern challenges the admission 

of certain testimony by Richard A. Vogel, Jr., an 

 1 In 1982, Southern Railway and Norfolk and Western 

Railway merged. They are currently known as Norfolk 

Southern Railway Company. See Mason Y. Cooper, Norfolk 

Western Historical Society, An Introduction to the Norfolk 

& Western Railway, http://www.nwhs.org/about_nw.html (last 

visited Oct. 6, 2005). 

2

 At trial, the circuit court granted Norfolk 

Southern’s motion to strike the evidence regarding Rogers’ 

asbestosis claim. 
2

industrial hygienist who testified as an expert on behalf 

of Rogers, as well as the sufficiency of the evidence 

supporting the jury verdict. We find that Vogel’s 

challenged testimony lacks an adequate factual foundation 

and that, without his testimony, the evidence is 

insufficient as a matter of law on the issue of Norfolk 

Southern’s negligence. Thus, we will reverse the circuit 

court’s judgment in favor of Rogers. 

I. FACTS AND PROCEEDINGS 

 Rogers was employed as a “maintenance of way” laborer 

for Norfolk Southern between 1981 and 1998.3

 Maintenance of 

way crews are responsible for the upkeep and maintenance of 

the railroad track structures to ensure the safe passage of 

trains. Rogers worked in the maintenance of way department 

during his entire career with the railroad. He spent about 

eight years of that time working outside the Tidewater area 

of Virginia in locations such as West Virginia and Ohio. 

Rogers’ work on the railroad tracks sometimes involved 

rock known as “ballast,” which provides a foundation and 

drainage for railroad tracks. Different railroads use 

 3

 Rogers’ employment with Norfolk Southern was not 

continuous. From 1983 until 1984, Rogers worked for Diesel 

Injection as a sandblaster; during 1984, he worked at 

Jamestown Sheet Metal as a helper; and from 1984 until 

1986, he worked for Norfolk Shipbuilding and Drydock 

Company as a laborer. Rogers returned to the railroad in 

1986. 
3

different types of rock as ballast, and the silica content 

of the rock varies depending on its type. Rogers stated 

that, during the course of his employment with Norfolk 

Southern, the composition of the ballast used remained 

consistent and “[y]ou [could] see sparkles on most of it.” 

 Rogers’ crew dumped ballast on the railroad tracks in 

different ways depending on the type of railroad car 

containing the ballast. Some cars required workers to 

shovel the ballast from inside the car through an opening 

to other workers waiting outside the railroad car who then 

controlled the flow of ballast with ropes. Other cars 

dumped the ballast directly onto the tracks. Rogers 

testified that his job was dusty, and that dumping ballast 

on the tracks was the dustiest aspect of his duties. 

According to Rogers, the second dustiest job was operating 

a piece of equipment called a “double broom,” which swept 

the tracks forwards and backwards after the ballast had 

been dumped. Other tasks performed by Rogers included 

repairing the tracks, welding damaged track sections, 

removing railroad ties, and installing switch panels. From 

time to time, he also operated a “ballast regulator,” which 

was used to get a sufficient amount of ballast back in the 

track after a repair, and an “undercutter,” a machine used 
4

to remove old ballast from a track before new ballast was 

dumped. 

Rogers explained that the dust associated with his 

various jobs on the maintenance of way crew came from under 

the tracks, from the dirt surrounding the tracks, and from 

the ballast. He related that his clothes were covered with 

dust and dirt after a typical shift of working on the 

tracks. Because Rogers worked on a “section gang,” his 

exposure to ballast was not continuous; he might be exposed 

one day and not the next. By the 1990’s, Rogers was not 

dumping ballast on a regular basis. 

 In 2003, Rogers began experiencing some shortness of 

breath. He saw Dr. Richard C. Bernstein, a pulmonologist, 

in July 2003. Dr. Bernstein diagnosed Rogers as having 

“early silicosis” – “destruction of the lung[s] from 

silica.”4

 Dr. Bernstein based his opinion on Rogers’ 

description of his occupational history and exposure to 

dust, chest x-rays, and breathing tests. He opined that 

Rogers’ silicosis was caused by exposure to silica while 

working on the railroad track. 

 4

 The diagnosis of silicosis was disputed at trial. 

Norfolk Southern introduced testimony from four medical 

experts who each opined that Rogers does not have 

silicosis. The sufficiency of the evidence regarding the 

diagnosis of silicosis is not an issue on appeal. 
5

 On the issue of Norfolk Southern’s negligence, Rogers 

called Richard A. Vogel, Jr. as an expert in the field of 

industrial hygiene. In developing his opinions, Vogel 

reviewed “[a] number of depositions, answers and questions 

related to interrogatories, medical histories, work 

histories taken by a physician,” and excerpts from 

historical documents recording various proceedings of the 

Association of American Railroads (AAR).5 Vogel also spoke 

with Rogers about his work history and watched a video 

depicting a maintenance of way crew dumping ballast.6

Vogel began by discussing portions of the AAR 

historical documents. The documents demonstrated that, as 

 5

 The AAR is a professional organization of freight 

railroads, Amtrak, and other rail-related companies. 

Association of American Railroads, 

http://www.aar.org/About_AAR/about_aar.asp (last visited 

Oct. 6, 2005). The historical documents are the product of 

meetings held beginning in the 1930’s for railroad surgeons 

and medical personnel to discuss medical problems known to 

the railroads. 

6

 Rogers introduced the video into evidence. The video 

depicted ballast being dumped at an undisclosed location on 

an unidentified railroad line and did not involve Rogers’ 

maintenance of way crew. In the video, there was a 

noticeable difference between the visible dust surrounding 

those employees working alongside the equipment that was 

dumping the ballast and those working in front of it; the 

employees in front were working in less visible dust. 

Notably, Vogel testified, based on his discussions with 

Rogers, that the majority of the work performed by Rogers 

“appeared to be working at the ground level with a shovel 

in hand in front of the equipment.” 
6

early as 1932, the AAR was concerned about the hazards of 

exposure to silica dust. Reading from the documents, Vogel 

testified that “[p]neumoconiosis, derived from pneumo, 

[meaning] lung, and konis, [meaning] dust, is a condition 

that may be caused by any kind of dust entering the lung, 

but we as railroad surgeons are undoubtedly more interested 

in silicosis and asbestosis than any other types.” He 

continued, “[s]ilicosis is caused by breathing free silica 

into the lungs.” The documents also stated that silicosis 

is a dust disease and a person can contract it only by 

breathing silica dust. 

Based on the information found in the AAR historical 

documents, Vogel opined that the railroad industry, as of 

1935, had recommended standards for industrial hygiene with 

regard to silica exposure. Those standards included 

educating workers about the hazard, using methods to limit 

exposure to dust, providing respirators to workers, using 

ventilation to control dust levels, using certain handling 

methods to reduce the emission of dust, and taking 

measurements to determine the concentration of hazardous 

material in the air. 

 Continuing, Vogel testified that the applicable 

industrial hygiene standards in place during Rogers’ 

employment period were the Occupational Safety & Health 
7

Administration (OSHA) standards.7 29 C.F.R. 1910.1000

(2000). OSHA regulates worker exposure to silica-

 7

 Silica exposure is not as heavily regulated as 

exposure to asbestos. See 29 C.F.R. § 1910.1001 (2000). 

In 1978, OSHA released a program directive to provide 

guidelines for inspecting and, where necessary, for issuing 

citations with regard to exposure to silica in the 

workplace. Occupational Safety & Health Administration, 

CPL 02-02-007, Program Directive #300-3, Crystalline Silica

(1978), available at 

http://www.osha.gov/sltc/silicacrystalline/standards.html 

(follow “Crystalline Silica” hyperlink) (last visited Oct. 

6, 2005) (hereinafter Directive #300-3). Pursuant to 

Directive #300-3, “employee exposure to airborne 

crystalline silica shall not exceed an 8-hour time-weighted 

average limit (variable) as stated in 29 CFR 1910.1000, 

Table Z-3 or a limit set by a state agency whenever a 

state-administered Occupational Safety and Health Plan is 

in effect.” Id. Thus, an employer is not in violation 

unless employees are exposed to silica in excess of the 

permissible exposure limits. 

Directive #300-3 also provides indicators as to when 

an employer should test for possible excessive exposure to 

silica: 

(i) Any information or observations which would 

indicate employee exposure to silica or other 

substances; 

(ii) Any measurement of airborne silica; 

(iii) Any employee complaints of symptoms which 

may be attributable to exposure to silica or 

other substances; 

(iv) Any production, process, or control change 

which may result in an increase in the airborne 

concentration of silica, or whenever the employer 

has any other reason to suspect an increase in 

the airborne concentrations of silica. 

Id. If testing is undertaken and exposure is found to be 

above the permissible limits, Directive #300-3 outlines the 

steps an employer should take to minimize exposure: 

The first mandatory requirement is that employee 

exposure be eliminated through the implementation 

of feasible engineering controls. After all such 

controls are implemented and they do not control 

to the permissible exposure limit, each employer 
8

containing materials, and the allowable silica level has 

been constant since 1972. Vogel explained that the level 

of allowable silica is “based on the percentage of silica 

in a compound. Ten milligrams per cubic meter divided by 

the percentage of silica plus two, so it’s a moving target. 

The higher the silica content in the material, the lower 

the level.” 

 To perform this calculation, the silica content of the 

material being tested must be known. On direct 

examination, Vogel was asked: 

Q: Is it essential to the calculation to know 

what the silica content is of the material you’re 

testing? 

A: You have to know, otherwise all you’re 

evaluating is exposure to airborne dust. 

Q: And that could be from any source? 

A: True. 

During both his direct testimony and cross-examination, 

Vogel admitted that he did not know the type of rock that 

Rogers was exposed to during his employment with Norfolk 

 

must rotate its employees to the extent possible 

in order to reduce exposure. Only when all

engineering or administrative controls have been 

implemented, and the level of respirable silica 

still exceeds permissible exposure limits, may an 

employer rely on a respirator program . . . . 

Id. (emphasis added). Engineering controls include 

suppressing dust by wetting down the offending substance 

(in this case the ballast) and proper ventilation. Id.
9

Southern, nor did he know its silica content.8 He agreed 

that “[i]n order . . . to state whether somebody’s at risk, 

you need to know the volume of the substance they were 

exposed to” and that determination is made by taking an air 

sample and measuring that sample against the applicable 

“threshold limit value.” Vogel stated that he had not 

conducted testing with regard to either Rogers’ work or 

similar work performed by other maintenance of way crews. 

Nevertheless, Vogel testified that “[v]isible dust is an 

indication that there are no controls or limited control 

measures in effect . . . [and i]f you can see visible dust, 

there’s likely to be a much larger percentage of dust that 

is not visible to the naked eye.” According to Vogel, “[a] 

visible dust cloud is an indicator of conditions that could

generate a respiratory hazard and it’s something that 

should trigger sampling.” (Emphasis added.) 

 8

 During direct examination, Vogel was asked whether 

“Mr. Rogers worked with or around silica-containing 

products?” Vogel replied, “I believe he did. I’ve seen 

material safety data sheets from a number of companies 

supplying ballasts for railroad operations that indicated 

silica in their materials at varying percentages.” Vogel 

testified that he had no “specific firsthand knowledge of 

the materials that Norfolk Southern purchased that Mr. 

Rogers would have been using during his employment.” 

Sustaining Norfolk Southern’s motion to strike this 

testimony, the circuit court instructed the jury to 

disregard it. Contrary to Rogers’ argument, Vogel did not 

indicate that he relied on material safety data sheets in 

formulating his opinions in this case. 
10

 Even though he did not know the type of ballast Rogers 

worked with or its silica content, Vogel opined that 

Norfolk Southern failed to comply with industrial hygiene 

standards relating to exposure to silica dust because 

Norfolk Southern never warned Rogers about the hazards of 

working with ballast. Furthermore, according to Vogel, 

Norfolk Southern did not train Rogers in the proper 

handling of the silica-containing materials, provide 

workers with respiratory protection, or conduct air 

samples. Finally, Rogers asked Vogel: 

Q: [B]ased on your education, training and 

certification as an industrial hygienist, based 

on your review of the existing relevant 

literature, based on your knowledge of railroad 

industry practices, based on your viewing of the 

videotape depicting ballast dumping that is 

admitted as Plaintiff’s Exhibit 1, based on your 

discussions with Mr. Rogers concerning his work 

history from 1981 to 1997, based on the then 

existing OSHA permissible exposure limits, based 

on the applicable railroad industry standards in 

effect during the period of his employment, do 

you have an opinion as to a reasonable degree of 

industrial hygiene certainty as to whether or not 

Mr. Rogers was exposed to silica dust during the 

years of his employment with Norfolk Southern in 

an amount that exceeded a reasonably safe level? 

A: Based on all those factors, yes, I believe he 

did. 

Norfolk Southern objected to this question on the 

basis that an adequate foundation had not been 

established for Vogel’s opinion. The circuit court 
11

overruled the objection and allowed that question 

along with the following one: 

Q: And, Mr. Vogel, based on all those same 

things . . . do you have an opinion to a 

reasonable degree of certainty in the field of 

industrial hygiene as to whether Norfolk Southern 

provided reasonable and sufficient safeguards to 

Mr. Rogers so he would have a reasonably safe 

place to work with regard to his exposure to 

silica dust? 

A: No, I do not believe that they did. 

At the conclusion of Rogers’ case-in-chief, Norfolk 

Southern moved to strike Rogers’ evidence. The circuit 

court overruled the motion. Norfolk Southern then 

presented testimony from its witnesses. 

 As part of Norfolk Southern’s evidence, David M. 

Tucker testified as an expert in the field of industrial 

hygiene. Tucker was employed for Norfolk Southern as an 

industrial hygienist from 1989 through 2001. During his 

tenure with Norfolk Southern, he was not aware of any 

railroad worker who had a confirmed diagnosis of silicosis. 

 Tucker testified that in order for silica dust to be 

harmful, it must be respirable dust. This means that it 

must be microscopic; any dust particle larger than that is 

harmless. Therefore, Tucker opined that not every exposure 

to silica represents a health hazard. 
12

 Tucker further explained that Norfolk Southern uses 

various types of rock as ballast, including granite and 

limestone. He stated that Rogers mainly worked on Norfolk 

Southern’s railroad tracks where limestone ballast was 

used. Limestone rock has a lower silica content than 

granite. Tucker also considered significant the fact that 

Rogers worked in what was called a “section gang.” Unlike 

a “system gang” that was exposed to silica dust on a daily 

basis, a section gang did not have exposure to silica dust 

everyday. 

 In 1990, Norfolk Southern learned that a former track 

maintenance worker had possibly been diagnosed with 

silicosis. After some initial testing, Norfolk Southern 

decided, in 1992, to conduct extensive air monitoring and 

medical work-ups on employees. The testing revealed that a 

few workers were exposed to levels of silica dust that 

exceeded the threshold limit values (TLV) while working on 

railroad tracks where granite ballast was used.9

 According 

 9

 Tucker explained: 

The TLV is designed as an established safe 

limit. Nobody exposed at or below the TLV for 

eight hours a day, 40 hours a week over a 35 year 

working lifetime and that’s constant at that 

level should ever get sick except for somebody 

predisposed genetically [who is] very sensitive 

to this disease. 
13

to Tucker, the air monitoring and medical testing showed 

that the “track maintenance workers [were] at no increased 

risk of contracting silicosis over any other occupation.” 

At the close of all the evidence, Norfolk Southern 

again renewed its motion to strike. Similarly, after the 

jury returned a verdict in favor of Rogers, Norfolk 

Southern moved to set aside the jury verdict. The circuit 

court denied both motions and entered judgment for Rogers. 

On appeal, Norfolk Southern challenges, among other 

things, the admission of Vogel’s testimony that Rogers was 

exposed to excessive levels of silica dust during his 

employment with Norfolk Southern and the sufficiency of the 

evidence regarding the issue of negligence.10 We will 

address the issues in that order. 

II. ANALYSIS 

A. Standard of Review 

Armed with a jury verdict in his favor, Rogers is 

entitled to have the evidence, and all inferences that may 

reasonably be drawn from it, viewed in the light most 

favorable to him. Norfolk & W. Ry. Co. v. Keeling, 265 Va. 

 10 On brief, Rogers claims that Norfolk Southern failed 

to file the August 9, 2004 trial transcript and therefore 

is barred from relying on it in this appeal. That 

transcript was, however, filed when Norfolk Southern 

attached it to its motion to set aside the verdict. 

Therefore, the transcript is part of the record and may be 

considered on appeal. 
14

228, 232, 576 S.E.2d 452, 456 (2003); Evaluation Research 

Corp. v. Alequin, 247 Va. 143, 147, 439 S.E.2d 387, 390 

(1994). The judgment of the trial court will not be set 

aside unless it is “plainly wrong or without evidence to 

support it.” Code § 8.01-680. This standard of review is 

applicable to Norfolk Southern’s assignments of error 

challenging the sufficiency of the evidence. Keeling, 265 

Va. at 282, 576 S.E.2d at 456. The question whether 

Vogel’s expert opinion was supported by an adequate factual 

foundation concerns the admissibility of evidence. CSX 

Transp., Inc. v. Casale, 250 Va. 359, 367, 463 S.E.2d 445, 

450 (1995). On appeal, we will reverse a trial court’s 

decision to admit expert testimony if the court abused its 

discretion in doing so. Tarmac Mid-Atl., Inc. v. Smiley 

Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995).

B. Admissibility of Expert Testimony 

In FELA cases, Virginia law governs the admissibility 

of expert testimony. Keeling, 265 Va. at 235, 576 S.E.2d 

at 457. Expert testimony is allowed where it “will assist 

the trier of fact to understand the evidence or to 

determine a fact in issue.” Code § 8.01-401.3. An 

expert’s opinion may be based on “facts, circumstances or 

data made known to or perceived by such witness.” Code 

§ 8.01-401.1. 
15

An expert opinion, however, must have an adequate 

factual foundation, and an expert’s testimony will be found 

to be inadmissible if it is speculative in nature. John v. 

Im, 263 Va. 315, 319–20, 559 S.E.2d 694, 696 (2002); Tarmac 

Mid-Atl., 250 Va. at 166, 458 S.E.2d at 465–66. It is the 

trial court’s responsibility “ ‘to ensure that only 

properly admitted evidence is considered by the jury.’ ” 

Casale, 250 Va. at 367, 463 S.E.2d at 450 (quoting Tyger 

Constr. Co. v. Pensacola Constr. Co., 29 F.3d 137, 143 (4th 

Cir. 1994)). “Expert testimony founded upon assumptions 

that have no basis in fact is not merely subject to 

refutation by cross-examination or by counter-experts; it 

is inadmissible. Failure of the trial court to strike such 

testimony upon a motion timely made is error subject to 

reversal on appeal.” Vasquez v. Mabini, 269 Va. 155, 160, 

606 S.E.2d 809, 811 (2005) (citations omitted). 

In the present case, Vogel’s challenged testimony was 

not based on an adequate factual foundation and was 

therefore inadmissible. See Tittsworth v. Robinson, 252 

Va. 151, 155, 475 S.E.2d 261, 263 (1996) (excluding expert 

testimony because it “is speculative, is founded upon 

assumptions lacking a sufficient factual basis, relies upon 

dissimilar tests, and contains too many disregarded 

variables”); Stover v. Norfolk & W. Ry. Co., 249 Va. 192, 
16

197, 201, 455 S.E.2d 238, 241, 243 (1995) (expert witness, 

who relied solely on depositions and color photographs, 

drew an impermissible inference because the opinion was not 

based on facts in the case or within the expert’s 

knowledge). Vogel acknowledged that, in order to determine 

the allowable silica level, it is necessary to know the 

silica content of the material being tested. Otherwise, 

the test is merely evaluating exposure to airborne dust 

that could come from any source. Vogel did not know the 

kind of ballast used by Rogers during his employment with 

Norfolk Southern nor did he know its silica content. 

Furthermore, Vogel admitted that, in order to know if a 

worker is at risk, it is necessary to know the volume of 

substance to which the worker was exposed. 

Despite the admitted lack of necessary underlying 

data, Vogel opined that Rogers had been exposed to 

excessive levels of silica while working for Norfolk 

Southern. He reached that conclusion by relying primarily 

on AAR historical documents, his discussions with Rogers 

concerning his work environment, and the video depicting 

ballast dumping. Not one of those sources of information, 

however, contained any evidence about the kind of ballast 

used in Rogers’ work or its silica content. Consequently, 

Vogel’s opinion that Rogers was exposed to silica dust in 
17

an amount that exceeded a reasonably safe level was 

“founded upon assumptions that [had] no basis in fact.” 

Vasquez, 269 Va. at 160, 606 S.E.2d at 811. The testimony 

was therefore inadmissible. 

C. Sufficiency of Evidence 

Under the provisions of FELA, railroads are liable for 

“injury or death resulting in whole or in part from the 

negligence of any of the officers, agents, or employees of 

such carrier, or by reason of any defect or insufficiency, 

due to its negligence, in its cars, engines, appliances, 

machinery, track, roadbed, works, boats, wharves, or other 

equipment.” 45 U.S.C. § 51 (2000). “[A] railroad has a 

nondelegable duty, which is continuing, to exercise 

reasonable care in furnishing its employees a safe place to 

work.” Norfolk & W. Ry. Co. v. Johnson, 251 Va. 37, 44, 

465 S.E.2d 800, 805 (1996). FELA does not, however, hold 

employers to be the insurers of their employees. Inman v. 

Baltimore & Ohio R.R. Co., 361 U.S. 138, 140 (1959); Brown 

v. CSX Transp., Inc., 18 F.3d 245, 249 (4th Cir. 1994); 

Norfolk S. Ry. Co. v. Trimiew, 253 Va. 22, 27, 480 S.E.2d 

104, 108 (1997). 

The question whether an employer was negligent under 

FELA is a question of federal law. Trimiew, 253 Va. at 24, 

480 S.E.2d at 106. “Drawing on federal law, we have noted 
18

that a plaintiff’s proof must justify with reason the 

conclusion that an employer’s negligence played any part, 

even the slightest, in producing the injury for which 

damages are sought.” Id.; accord Rogers v. Missouri Pac. 

R.R., 352 U.S. 500, 506 (1957). “Reasonable foreseeability 

of harm is an essential ingredient of FELA negligence.” 

Stover, 249 Va. at 201, 455 S.E.2d at 244. 

The standard of proof in a FELA action “is more 

lenient than in a common law action[; however,] the 

plaintiff nevertheless is still required to establish some 

act of negligence in order to prevail.” Norfolk & W. Ry. 

Co. v. Hughes, 247 Va. 113, 116, 439 S.E.2d 411, 413 

(1994). The weight of the evidence must be more than a 

scintilla before a case may be properly left to the 

discretion of a jury. Brady v. Southern Ry. Co., 320 U.S. 

476, 479 (1943); Stover, 249 Va. at 200, 455 S.E.2d 243; 

see also Keeling, 265 Va. at 232, 576 S.E.2d at 456 

(“[B]oth foreseeability and negligence must be shown by 

more than a scintilla of evidence”). “[I]n rare cases 

‘where fair-minded persons cannot differ on whether the 

employer was at fault and whether that fault played any 

part in the employee’s injury or death, the question 

becomes one for the court.’ ” Stover, 249 Va. at 199, 455 
19

S.E.2d at 242 (quoting Norfolk & W. Ry. v. Hodges, 248 Va. 

254, 260, 448 S.E.2d 592, 595 (1994)). 

At the close of Rogers’ evidence, at the close of all 

of the evidence, and after the jury returned its verdict, 

Norfolk Southern challenged the sufficiency of the evidence 

with regards to the issues of negligence and 

foreseeability. On appeal, Norfolk Southern asserts that 

the circuit court erred in each instance. Because Norfolk 

Southern introduced evidence on its behalf after the 

circuit court denied its motion to strike Rogers’ evidence, 

it has waived the right to rely on the first motion. 

Taylor v. Flair Prop. Assocs., 248 Va. 410, 414, 448 S.E.2d 

413, 416 (1994). Thus, in deciding whether there was 

sufficient evidence to support the jury verdict, we 

consider all the evidence and not just the evidence 

presented in Rogers’ case-in-chief. Id. We do not, 

however, consider the portion of Vogel’s expert testimony 

that we have determined was inadmissible. See Grasty v. 

Tanner, 206 Va. 723, 727-28, 146 S.E.2d 252, 255 (1966). 

The principal contention between the parties on the 

sufficiency of the evidence regarding Norfolk Southern’s 

negligence is whether Rogers was required to introduce 

“specific dose evidence” of his exposure to silica dust. 

Norfolk Southern argues that Rogers “failed to present any 
20

evidence of the amount of silica to which he was exposed, 

that this amount exceeded permissible threshold levels, 

that Norfolk Southern knew or should have known this was 

occurring, or that his injury was reasonably foreseeable.” 

Rogers claims that specific dose evidence is not required 

to establish a railroad’s liability.11 To resolve whether 

there was sufficient evidence in this case, we turn to some 

of the cases cited by the parties. 

In Young v. Clinchfield Railroad Co., 288 F.2d 499 

(4th Cir. 1961), the court concluded that the plaintiff 

presented sufficient evidence to create a jury issue as to 

whether the railroad had failed to provide the plaintiff 

with a safe workplace. Id. at 501. The plaintiff worked 

“behind a cribbing machine which removed ballast from 

between the ties and an adzing machine which smoothed the 

ties.” Id. The plaintiff presented evidence that he was 

exposed to heavy dust while performing this work on the 

defendant’s railroad tracks and that the ballast used 

contained rock with silica content ranging from 34 percent 

to 100 percent. Id. A physician testified that this type 

 11 On this point, Rogers draws a distinction between 

the issue of liability and the issue of medical causation. 

He correctly points out that Norfolk Southern has not 

challenged the sufficiency of the evidence on the latter 

issue. 
21

of exposure, to this amount of silica, could have caused 

the plaintiff’s silicosis. Id.

 In a decision citing Young, the court in Wooden v. 

Missouri Pacific Railroad Co., 862 F.2d 560 (5th Cir. 

1989), found sufficient evidence from which a jury could 

infer that the railroad knew, or should have known, of the 

risk to its employee of exposure to silica dust in the 

workplace. Id. at 562. The plaintiff alleged that his 

work on the railroad caused him to contract silicosis. Id.

at 560. The plaintiff introduced evidence showing that he 

operated a tamping machine for the railroad, id. at 561, 

and that the machine produced enough dust that “[y]ou 

barely could see what you was [sic] doing.” Id. at 562. 

An industrial hygienist testified that the rocks on the 

trackbed with which the plaintiff worked contained 100 

percent silica. Id.

In both Young and Wooden, there was evidence as to the 

amount of silica present in the substance causing the dust. 

While neither case contained evidence of actual exposure 

levels, i.e., dose evidence, both cases did include expert 

witness testimony that the rocks in question contained 

significant levels of silica. Therefore, the jury in each 

case could reasonably infer that the dust to which the 
22

plaintiff was exposed contained a large amount of silica. 

No such evidence was presented in the case before us. 

In contrast to Young and Wooden, the court in Mitchell 

v. Gencorp Inc., 165 F.3d 778 (10th Cir. 1999), affirmed 

the trial court’s award of summary judgment to the 

defendant because the plaintiff failed to prove the level 

of chemicals to which he was exposed. Id. at 781. The 

plaintiff was a warehouseman and truck driver, whose 

position “required him to stock, organize and fill orders 

from the company’s ‘flammable room.’ ” Id. at 779. The 

flammable room was a small room without ventilation and 

housed various products manufactured by the defendant that 

contained certain chemicals. Id. Evidence suggested that 

some barrels in the room had leaked. Id. The plaintiff 

was diagnosed with chronic myelogenous leukemia and alleged 

that his exposure to the chemicals in the flammable room 

caused his illness. Id.

In Mitchell, an industrial hygienist was offered to 

testify that the plaintiff’s exposure to these chemicals 

caused his leukemia. Id. The expert, however, studied 

only photographs of the flammable room showing some 

chemical spillage and material safety data sheets listing 

various chemicals contained in the defendant’s products. 

Id. The expert never visited the room, nor did he conduct 
23

any tests to determine the plaintiff’s level of exposure to 

the chemicals. Id. The plaintiff relied on the proffered

expert testimony, along with his own testimony as to the 

number and length of his visits to the flammable room, to 

prove exposure. Id. at 781. 

In excluding the expert’s testimony for lack of an 

adequate foundation and finding the remaining evidence 

insufficient, the court stated: 

[W]hile [the plaintiff’s] testimony could be 

relevant to proving that the “flammable room” 

contained chemicals, it does not clarify the 

level of chemicals to which [the plaintiff] was 

exposed. Similarly, the materials relied upon by 

[the expert] are not relevant in determining 

[the] level of exposure. It makes little sense 

to argue that a scientist can look at pictures 

and a list of chemicals contained in a room and 

arrive at a level of exposure. 

Id.; see also Moore v. Ashland Chem. Inc., 151 F.3d 269, 

278 (5th Cir. 1998) (“[b]ecause he had no accurate 

information on the level of [the plaintiff’s] exposure to 

the fumes, [the expert] necessarily had no support for the 

theory that the level of chemicals to which [the plaintiff] 

was exposed caused [his illness]”); Savage v. Union 

Pacific R.R. Co., 67 F.Supp.2d 1021, 1031 (E.D.Ark. 1999) 

(“plaintiff must demonstrate ‘the levels of exposure that 

are hazardous to human beings generally as well as the 

plaintiff’s actual level of exposure’ ” (quoting Wright v. 
24

Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir. 

1996)). But cf. Westberry v. Gislaved Gummi AB, 178 F.3d 

257, 264 (4th Cir. 1999) (“although [the expert] did not 

point to [the plaintiff’s] exposure to a specific level of 

airborne talc, there was evidence of a substantial 

exposure”). 

 Rogers correctly points out that the evidence in Young

and Wooden did not include specific dose evidence and 

relies on Harbin v. Burlington Northern Railroad Co., 921 

F.2d 129 (7th Cir. 1990), in support of his position. In 

Harbin, the plaintiff was employed as a boilerman, and once 

a year he was required to clean out three boilers located 

in an enclosed building. Id. at 129. This cleaning forced 

large amounts of soot and debris into the air. Id. at 130. 

While the soot and debris were being released into the air, 

locomotives in the building were running and emitting 

exhaust fumes. Id. The plaintiff was provided a breathing 

cup, but it only covered his mouth and had to be changed 

three or four times a day because the soot was so dense. 

Id. The railroad was aware of the problem but did nothing 

to improve the ventilation system. Id. It did, however, 

allow other employees (those not cleaning the boilers) to 

leave during the cleaning process. Id. On the third day 

of cleaning, the plaintiff experienced left arm and chest 
25

pain, shortness of breath, and heavy perspiration. Id. He 

was later diagnosed as having suffered a heart attack. Id.

The plaintiff subsequently brought a FELA action 

against the railroad. The trial court granted summary 

judgment for the railroad on the issue of negligence, 

holding that “[w]ithout knowledge of the precise quantity 

or composition of soot present in the air, . . . a jury 

would be unable to assess the reasonableness of the 

Railroad’s conduct.” Id.

 On appeal, the United States Court of Appeals for the 

Seventh Circuit reversed the trial court’s judgment. The 

appellate court was persuaded by the evidence showing that 

the cleaning process took place in a room without adequate 

ventilation, while locomotives were running and emitting 

exhaust fumes, and that cleaning the boilers produced so 

much soot and debris the breathing cups had to be changed 

multiple times each day. Id. at 131. Based on this 

evidence, the court held that “a jury could reasonably 

conclude that the Railroad’s failure to employ a different 

boiler cleaning method or take additional precautions to 

ensure the safety of its employees was negligent.” Id. at 

132. While the court concluded that the plaintiff did not 

need to “identify the specific composition and density of 

soot present,” id., it compared the “general risk of harm 
26

to employees forced to labor without ventilation in a sooty 

environment” to the risk of injury “from a rusty wire left 

lying about or a stagnant pool of water, or the lifting of 

a heavy weight.” Id.

 Rogers also relies on Fulmore v. CSX Transportation,

Inc., 557 S.E.2d 64 (Ga. Ct. App. 2001), an asbestos case, 

to support his argument that specific dose evidence is not 

needed. There, the court stated: 

First, a plaintiff must offer proof of general 

causation: whether exposure to a substance is 

capable of causing a particular injury or 

disease. In addition, a plaintiff must also 

produce evidence of specific causation: whether 

exposure to a substance under the circumstances 

of the case caused a particular plaintiff’s 

illness or disease. While both analyses involve 

a question of the concentration levels of the 

toxin to which plaintiffs were exposed, it does 

not necessarily follow that plaintiffs must show 

specific air measurement readings, or that they 

have not otherwise established causation. 

Id. at 72. The court in Fulmore acknowledged the need to 

know the level of exposure to the offending substance. It 

held, however, that because the plaintiffs had contracted 

asbestosis, “which by definition, results only from an 

overexposure to asbestos, the proof of asbestosis 

conclusively establishe[d] such overexposure.” Id. at 72. 

 As in Young and Wooden, the offending substance in 

Harbin and Fulmore was known and there was evidence from 

which a jury could infer that the respective plaintiff had 
27

been exposed to a hazardous level of the substance. In 

Harbin, the plaintiff proved that he was exposed to such 

amounts of soot and debris as to require breathing cups to 

be changed frequently during a workday. Harbin, 921 F.2d 

at 130. The plaintiff also showed that the ventilation 

system was poor and that the railroad was aware of it – in 

fact, the railroad allowed those employees not involved in 

cleaning the boilers to leave. Id. at 130. In Fulmore, 

the offending substance was asbestos, and excessive 

exposure was proven by the fact that the plaintiff had 

asbestosis. 557 S.E.2d at 72. 

In contrast, the evidence in the case before us, 

viewed in the light most favorable to Rogers, established 

that beginning in 1932 railroads were aware of silica dust. 

Testing in the 1990’s, however, did not show exposure to 

unsafe levels of silica dust except for some railroad 

employees who worked in areas where granite ballast was 

used. Rogers did not prove that he worked with granite 

ballast. The only evidence on this subject showed that he 

predominantly worked on railroad tracks in areas where 

limestone ballast was used.12

 12 On brief, Rogers argues that testimony from one of 

Norfolk Southern’s witnesses that he observed Rogers 

wearing a respirator at times, establishes that Rogers was 

exposed to unsafe levels of silica dust. We do not agree. 
28

Even knowing that Rogers worked with limestone 

ballast, which is information Vogel did not have, the 

record is void of evidence as to the silica content of such 

rock. See Young, 288 F.2d at 501 (silica content of 

ballast rock ranged from 34 percent to 100 percent); 

Wooden, 862 F.2d at 562 (rocks on railroad trackbed 

contained 100 percent silica). At best, the evidence 

showed that Rogers, while working with limestone ballast, 

was exposed to a visible dust cloud. But, Rogers’ own 

expert, Vogel, admitted that, unless the silica content of 

the material is known, any testing just measures exposure 

to airborne dust that could come from any source. Vogel 

further admitted that, to determine the allowable silica 

level, it is essential to know the silica content of the 

tested substance. Furthermore, Rogers testified that dust 

to which he was exposed came not only from ballast but also 

from under the railroad tracks and from dirt surrounding 

the tracks. 

Thus, we conclude that the evidence was insufficient, 

as a matter of law on the issue of Norfolk Southern’s 

negligence, to sustain the jury verdict. In reaching this 

 

Moreover, Rogers testified that he never wore a respirator. 

See Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, 

656 (1922) (“No litigant can successfully ask a court or 

jury to believe that he has not told the truth.”). 
29

conclusion, we agree with Rogers that “specific dose 

evidence” is not required. Nevertheless, a plaintiff with 

silicosis seeking damages under FELA must present some type 

of evidence, such as silica content of the offending 

substance, from which a jury can reasonably infer that the 

plaintiff was exposed to levels of silica dust that 

exceeded reasonably safe levels, i.e., that exceeded the 

TLV. See supra note 9. 

III. Conclusion 

Vogel’s challenged testimony was inadmissible under 

the rules for admission of expert testimony in Virginia. 

His testimony that Rogers was exposed to amounts of silica 

dust that exceeded reasonably safe levels lacked an 

adequate factual foundation. The remainder of the evidence 

presented was insufficient as a matter of law on the issue 

of Norfolk Southern’s negligence. Norfolk Southern cannot 

be held liable on a theory of exposure to excessive amounts 

of silica dust when there was no evidence of exposure to 

silica dust beyond exposure to a dust cloud of unknown 

content. Rogers failed to prove “some act of negligence” 

by Norfolk Southern. Hughes, 247 Va. at 116, 439 S.E.2d at 

413. Therefore, we will reverse the judgment of the 
30

circuit court and enter final judgment for Norfolk 

Southern.13

Reversed and final judgment. 

 13 In light of our decision, it is not necessary to 

address Norfolk Southern’s remaining assignments of error.