PRESENT: All the Justices

OMEGA PROTEIN, INC., ET AL.
                                             OPINION BY
v.   Record No. 112096            JUSTICE ELIZABETH A. McCLANAHAN
                                         SEPTEMBER 14, 2012
RONALD FORREST

             FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                         R. Bruce Long, Judge

      In this appeal, we consider whether Ronald Forrest proved

in his personal injury action under the Jones Act, 46 U.S.C.

§ 30104, that his injury was caused by his employer's alleged

negligence.    Concluding that Forrest did not present evidence

establishing causation, we reverse the trial court's award of

damages to Forrest upon a jury verdict, and enter final

judgment in favor of appellants, Omega Protein, Inc., Omega

Protein Corporation and the F/V Tideland (collectively

"Omega"), the three defendants below.

                             BACKGROUND

      Forrest sued Omega for an injury to his back sustained in

the course of his employment with Omega as a crew member aboard

the F/V Tideland, a commercial fishing vessel operated out of

Reedville.    One of Forrest's duties, as first mate, was to

assist with tying up the vessel as it docked.    This involved

"jump[ing] off the [vessel] to catch the lines on the dock."

Forrest had performed this duty hundreds, if not thousands, of

times before the subject accident.    In doing so at one of
Omega's docks in Reedville during the 2005 fishing season,

Forrest jumped from the vessel to the dock, fell and injured

his back.   Forrest alleged in his amended complaint that this

accident was caused by Omega's negligence, rendering Omega

liable for his back injury under the Jones Act. 1   See 46 U.S.C.

§ 30104 (establishing statutory cause of action for seamen).

Forrest specifically alleged, among numerous other acts, that

Omega was negligent in "giving [him] clearance to perform [his]

job duties" in light of his "prior medical history."

     As of 2005, Forrest, then fifty-five years old, had worked

for Omega as a commercial fisherman for nearly thirty years,

and had been a first mate for approximately the last eight of

those years.   Like Omega's other fishermen, Forrest was "laid

off" by Omega at the end of each annual fishing season and then

"rehired" at the beginning of the next fishing season.

However, before rehiring Forrest and the other fishermen

seeking reinstatement, Omega required, as a safety procedure,

that the fishermen undergo annual pre-employment physicals to

determine whether they were physically fit for the job.    Over

Omega's objection, Forrest presented evidence that in Louisiana

Omega obtained magnetic resonance imaging scans ("MRIs") on its

     1
       Forrest also sued Omega for the alleged unseaworthiness
of the F/V Tideland under general maritime law. See Mitchell
v. Trawler Racer, Inc., 362 U.S. 539, 542-50 (1960). That
claim, upon which the jury rendered a verdict against Forrest,
is not at issue in this appeal.

                                 2
fishermen based in Louisiana as part of their annual pre-

employment physicals; but for its fishermen in Virginia the
                                                        2
company only obtained x-rays as part of that process.

     Based on Omega's pre-employment procedure in Louisiana and

Forrest's back-related medical history, Forrest's ultimate

negligence liability theory at trial was that Omega breached

its duty of care by not obtaining an MRI as part of his 2005

pre-employment physical.   Because of Omega's knowledge of his

back "problems" extending back to 1984, according to Forrest,

Omega should have first obtained an MRI to determine his

physical fitness for continued employment as a commercial

fisherman. Had an MRI been done, Forrest asserted, it would

have shown that he was unfit for the job; Omega would not have

rehired him; and the subject accident would not have occurred.

Forrest contended Omega was therefore liable under the Jones

Act for the damages he incurred as a result of his injury from

the accident.

     2
       Omega objected to the introduction of this evidence based
on, inter alia, the contention that it constituted improper
evidence of internal company policy as a basis for establishing
Omega's duty of care. See Pullen v. Nickens, 226 Va. 342, 350-
51, 310 S.E.2d 452, 456-57 (1983). The trial court overruled
Omega's objection and permitted testimony regarding Omega's use
of MRIs in Louisiana but not in Virginia in conducting the
fishermen's pre-employment physicals. The court's ruling on
this issue is the basis of Omega's third assignment of error in
this appeal. However, because of our ruling on Omega's first
assignment of error regarding Forrest's lack of proof of
causation, we need not address the merits of its third
assignment of error. See note 6, infra.

                                 3
     To establish that Omega was "on notice" of Forrest's back-

related medical history when it rehired him in 2005, Forrest

presented evidence of documentation from Omega's records 3

indicating the following: in 1984, Forrest strained his lower

back, but did not miss any work as a result of that condition;

in 1992, Forrest strained his back and was restricted to light

duty for four days; in 1994, Forrest again sustained a back

strain; in 1995, Forrest hurt his neck in a work-related

accident, and around the same time it was reported that he was

wearing a back brace; and in 1999, Forrest was diagnosed with

"lumbar disc syndrome" and was off work for approximately a

month.

     In response, Omega introduced documentation from Forrest's

2004 and 2005 pre-season physicals indicating that x-rays

showed he had lumbar spine degenerative joint disease, and that

the x-ray in 2005 showed "spurs" at L5 - which was part of the

degenerative process.    However, the physician who did these two

physicals concluded that Forrest was medically "[c]leared for

duty." 4   Omega also introduced documents related to Forrest's


     3
       The trial court allowed the admission of this evidence
"solely for the limited purpose of showing notice to [Omega],"
and not for the "factual[] accura[cy]" of the information "in
terms of a diagnosis."
     4
       Doctor Zoran Cupic, an orthopedic surgeon who first
treated Forrest several months after the subject accident,
explained during his testimony that "[m]ost people by the age
of 40 have some degeneration."

                                  4
employment agreements for both 2004 and 2005 in which Forrest

represented that he did not have any injury or illness that

would "prevent [him] from performing any function of [his] job

as a fisherman both safely and upon the sea for extended

periods of time."   Consistent with these representations,

Forrest did not offer any evidence indicating he missed any

work due to a back-related condition between 1999 and the time

of the subject accident in 2005.

     As to proof of causation, Forrest sought to establish a

casual connection between Omega's prior knowledge of his back-

related medical history, Omega's failure to obtain a pre-

employment MRI of his back in 2005, and his subject accident on

August 11, 2005, through the testimony of (i) Dr. Zoran Cupic,

(ii) Donald Green, Forrest's expert witness in the area of

maritime safety, and (iii) W. Thomas Blencowe, a former Omega

human resource manager, whom Forrest called as an adverse

witness.   Over Omega's objection, Dr. Cupic testified that

"from a pre-employment physical standpoint," because of the

report of spurs on Forrest's lumbar spine, Omega should have

"do[ne] an MRI to make sure what that MRI shows"; and "if there

are a lot of problems not allow him to go back to work [doing]
                                                   5
any kind of heavy lifting and things like that."       (Emphasis


     5
       Omega objected to the introduction of this testimony on
the grounds that it constituted an expert opinion by a treating

                                   5
added.)   Green testified that based on Forrest's medical

history "a good, safe maritime employer" would have sent him

"to a specialist to have a full evaluation."   Finally, Blencowe

testified that if Omega knew from obtaining an MRI that a

fisherman had two herniated discs, he would "not pass" the

company's pre-employment physical.   Forrest presented no

evidence, however, showing that he had two herniated discs

prior to his 2005 accident.

     At the conclusion of Forrest's case-in-chief, Omega moved

to strike, arguing, among other things, that Forrest did not

offer any medical evidence to prove that in 2005 an MRI would

have shown that "he was unemployable medically and, therefore,

should not have been allowed to continue working [for Omega] or

put on light duty."   The trial court ruled that Forrest had

made out a prima facie case and denied the motion.   At the

close of all of the evidence, Omega renewed its motion, which

the trial court again denied.




physician in violation of Code § 8.01-399(B), as it was not
part of Dr. Cupic's diagnosis and treatment plan for Forrest
and was not included in his treatment records. The court's
ruling on this issue is the basis of Omega's second assignment
of error in this appeal. However, as with Omega's third
assignment of error, because of our ruling on Omega's first
assignment of error regarding Forrest's lack of proof of
causation, we will also not address the merits of its second
assignment of error. See notes 2 and 6, infra.

                                 6
     In closing argument, Forrest's counsel presented the

theory of Omega's liability to the jury specifically

disclaiming that the jump had any impact on causation:

          It's not about the jump. Ronald jumped, and he
     hurt his back. But he never should have been in a
     position where he had to jump, because if it wasn't
     the jump, it would have been the week after when he
     was pulling on a net. Or it would have been the month
     after with something else.

          Because of Ronald's back, he was a ticking time
     bomb. It was [sic] matter of time until this
     happened. And that's why they never should have had
     him cleared for full duty. If Omega would have
     followed their own policy, if they would have gotten
     him the pre-employment MRI, had him checked by a
     specialist, the fact is we wouldn't be here.

Specifically addressing the jury instruction defining

negligence under the Jones Act, Forrest's counsel told the jury

Omega was negligent for failing to do the MRIs: "So when you're

asked, [w]as Omega negligent, the answer is yes, they were

negligent for failing to do the MRIs."

     The jury returned a verdict for Forrest in the amount of

$768,788.14, but found that he was thirty percent at fault

under the jury's allocation of comparative negligence of the

parties, as provided for under the Jones Act.   Afterwards,

Omega moved for a new trial, renewed its motion to strike, and

moved to set aside the verdict as contrary to the law and the

evidence.   Upon hearing argument on Omega's motions, the trial




                                 7
court denied the motions and entered judgment for Forrest in

the amount of $538,151.50.   This appeal followed. 6

                             ANALYSIS

     Where the trial court has denied the defendant's motion to

strike the plaintiff's evidence or to set aside a jury verdict,

as here, " 'the standard of appellate review in Virginia

requires this Court to consider whether the evidence presented,

taken in the light most favorable to the plaintiff, was

sufficient to support the jury verdict in favor of the

plaintiff.' "   Sunrise Continuing Care, LLC v. Wright, 277 Va.

148, 154, 671 S.E.2d 132, 135 (2009) (quoting Bitar v. Rahman,

272 Va. 130, 141, 630 S.E.2d 319, 325-26 (2006)).      Upon such

review, we will not disturb the trial court's judgment unless it

is plainly wrong or without evidence to support it.      Bennett v.

     6
       We granted Omega's petition for appeal on the following
three assignments of error challenging the trial court's
judgment approving the jury's verdict in favor of Forrest under
the Jones Act:
     1. The trial court erred in denying defendants' motions to
strike and submitting expert opinion testimony about the
adequacy of defendants' pre-employment medical examinations to
the jury after plaintiff failed to present any competent
medical testimony establishing the required element of
causation.
     2. The trial court erred in permitting plaintiff's
treating physician to provide the undesignated expert opinion
that a finding of disc disease on pre-employment x-rays should
have caused defendants to order an MRI.
     3. The trial court erred in admitting testimony regarding
Omega's practice of using MRI's in its pre-employment medical
examinations in its Louisiana operations but not in its
Virginia operations because such evidence is inadmissible under
Virginia law.

                                 8
Sage Payment Solutions, Inc., 282 Va. 49, 54, 710 S.E.2d 736,

739 (2011); Syed v. ZH Technologies, Inc., 280 Va. 58, 68, 694

S.E.2d 625, 631 (2010).

     Omega argues that, even assuming arguendo it was negligent

in failing to obtain an MRI in conjunction with Forrest's 2005

pre-employment physical, Forrest failed to present any medical

evidence that an MRI would have shown he was no longer

physically fit to work as a commercial fisherman.      Therefore,

Omega contends, Forrest failed to prove that Omega's alleged

negligence caused the subject accident by Omega's decision to

rehire him.   We agree with Omega and will reverse the judgment

against it on that basis.

     The Jones Act provides a statutory cause of action in

negligence for a seaman who has suffered personal injury during

the course of his employment.   46 U.S.C. § 30104. 7   By its

express terms, the Act " 'incorporates the judicially developed

doctrine of liability of the Federal Employers Liability Act'

[FELA], which governs the injury claims of railroad workers."

Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 371 n.14 (4th Cir.

2012) (quoting Martin v. Harris, 560 F.3d 210, 216 (4th Cir.


     7
       The Jones Act specifically states, in relevant part: "A
seaman injured in the course of employment . . . may elect to
bring a civil action at law, with the right of trial by jury,
against the employer. Laws of the United States regulating
recovery for personal injury to . . . a railway employee apply
to an action under this section." 46 U.S.C. § 30104.

                                 9
2009)).    Accordingly, to prevail on a claim under the Jones

Act, a plaintiff must prove " '(1) that he is a seaman under

the Act; (2) that he suffered injury in the course of his

employment; (3) that his employer was negligent; and (4) that

his employer's negligence caused his injury at least in

part.' "    Holloway v. Pagan River Dockside Seafood, Inc., 669

F.3d 448, 451 (4th Cir. 2012) (quoting Martin, 560 F.3d at 216)

(emphasis added).

     Under the "relaxed" causation standard in Jones Act cases,

the employer is liable if its " 'negligence played any part,

even the slightest, in producing the injury . . . for which

damages are sought.' "    Martin, 560 F.3d at 216-217 (citing

Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436

(4th Cir. 1999)).   Indeed, as Forrest emphasizes, this standard

for proving causation is sometimes referred to as

"featherweight."    Bielunas v. F/V Misty Dawn, Inc., 621 F.3d 72,

76 (1st Cir. 2010); Ribitzki v. Canmar Reading & Bates, Ltd.

P'ship., 111 F.3d 658, 664 (9th Cir. 1997); Bommarito v. Penrod

Drilling Corp., 929 F.2d 186, 188 (5th Cir. 1991).    But as light

as this standard of proof may be, it "must not be relaxed to the

point that the Jones Act becomes in effect a workers'

compensation statute."    Martin, 560 F.3d at 216-217 (citing

Hernandez, 187 F.3d at 436-37).    The employer's negligence must

still be " 'a legal cause' of the injury."    Gavagan v. United


                                  10
States, 955 F.2d 1016, 1019 (5th Cir. 1992) (quoting Chisholm v.

Sabine Towing & Trans. Co., 679 F.2d 60, 67 (5th Cir. 1982));

see CSX Transp., Inc. v. McBride, 564 U.S. __, __-__, 131 S.Ct.

2630, 2641-44 (2011) (reaffirming that causation standard in

FELA cases does not extend to " 'but for' causation"); Pacific

S.S. Co. v. Peterson, 278 U.S. 130, 136-139 (1928) (under the

Jones Act, a seaman may "recover compensatory damages for

injuries caused by [the employer's] negligence"); Claar v.

Burlington Northern Railroad Co., 29 F.3d 499, 503 (9th Cir.

1994) (explaining in FELA case that "plaintiffs still must

demonstrate some causal connection between a defendant's

negligence and their injuries").     In short, in Jones Act cases,

as in FELA cases, the injured employee must prove, among other

things, that the employer in some way caused his injury.

     Here, Dr. Cupic testified that Omega should have obtained

an MRI for Forrest during his 2005 pre-employment physical to

determine whether he was physically able to work for Omega as a

commercial fisherman.   Dr. Cupic did not offer any opinion,

however, as to what the actual results of the MRI would have

shown in regard to Forrest's physical capacity.    Omega thus

correctly argues that Forrest presented no medical testimony

establishing the requisite element of causation.    That is, the

fact that Omega rehired Forrest without having him undergo an

MRI does not mean that Omega caused him to suffer injury, when


                                11
Forrest presented no evidence that the MRI would have indicated

he was unfit for the job.    Given Forrest's negligence theory, it

was incumbent upon him to prove that an MRI would have indicated

he was unfit, yet Omega rehired him anyway.   See Holloway, 669

F.3d at 451; Martin, 560 F.3d at 216; Hernandez, 187 F.3d at 436

(plaintiff seaman bears burden of proof on all elements of his

Jones Act negligence claim).   Forrest did not offer any such

proof; and the "featherweight" standard for proving causation,

of course, did not relieve him of the burden of presenting at

least some evidence of the causal connection between Omega's

alleged negligence and his injury.    See Bielunas, 621 F.3d at

76; Ribitzki, 111 F.3d at 664; Bommarito, 929 F.2d at 188-89

(explaining "featherweight" standard in terms of amount of

causation proof required).

     This gap in Forrest's evidence was not satisfied by the

testimony of Green, his maritime safety expert, or Blencowe,

the former Omega human resource manager.   Green's testimony was

similar to that of Dr. Cupic: based on Forrest's medical

history, it was Green's opinion that Forrest should have been

referred to a specialist for a "full evaluation" before Omega

made the decision in 2005 to rehire him.   As to Blencowe, he

was responding to a hypothetical from Forrest's counsel when he

acknowledged during his testimony that a fisherman would not

pass Omega's pre-employment physical if it knew from an MRI


                                 12
that the fisherman had two herniated discs.   Because there was

no evidence that Forrest had any herniated discs at the time

Omega rehired him in 2005, this response was irrelevant.

     Forrest tacitly acknowledges that he presented no

causation evidence by his assertion on brief that "all [he] was

required to prove to 'close the loop' on the featherweight

standard of causation is exactly what the evidence at trial

showed; namely, that his prior medical history was serious

enough that he should not have been permitted to engage in the

job functions at issue without further pre-employment testing."

Once again, there was no evidence, medical or otherwise, that

Forrest was, in fact, unfit for employment as a commercial

fisherman when rehired by Omega in 2005 (after having done that

work for Omega the previous six annual fishing seasons without

missing a day of work for any back-related problems).

     Still, Forrest asserts that the jury was entitled "to infer

that an MRI in 2005 would have revealed back problems that

should have restricted [him] from the activities that he was

performing at the time he was injured."   We disagree.

     When the issue of causation went to the jury on the record

here presented, the jury was able to do no more than speculate

about what an MRI would have revealed – and thus necessarily

base Omega's liability on mere speculation or conjecture, which

cannot be the basis of recovery.    See Hale v. Fawcett, 214 Va.


                               13
583, 585, 202 S.E.2d 923, 925 (1974) ("There can be no recovery

where speculation or conjecture must be resorted to in order to

determine what caused the damage complained of." (citing Barnes

v. Graham Virginia Quarries, Inc., 204 Va. 414, 418, 132 S.E.2d

395, 397-98 (1963)).   For the same reason, we also reject what

is essentially the same argument made by Forrest on brief,

couched as an alternative argument, to the effect that his

medical history known to Omega at the time he was rehired in

2005 - i.e., "without the results of that MRI" - was sufficient

"in and of itself" for the jury to determine that he was

"preclude[d]" from such employment.   (Emphasis in original

removed).   Again, it would have been mere speculation for the

jury to reach that conclusion on the evidence before it. 8


     8
       Forrest's substantial reliance on Sentilles v. Inter-
Caribbean Shipping Corp., 361 U.S. 107 (1959), as support for
his argument that the jury was entitled to infer causation, is
misplaced. In Sentilles, unlike the instant case, there was
direct expert medical testimony to establish the causal link
between the employer's negligence and the seaman's damages in
his Jones Act case. Id. at 107-09. While there were
conflicting opinions among the medical experts, at least two of
them opined that the seaman's shipboard accident, for which the
jury found the employer at fault, activated a previously latent
tubercular condition. Id. at 108-09. One of the experts
"posited the trauma [from the accident] and [the seaman's] pre-
existing diabetic condition as the most likely causes of the
aggravation of the tuberculosis." Id. at 109. Another expert
opined that "the accident 'probably aggravated his condition,'
though he would not say definitely." Id. In reversing the
Court of Appeals for the Fifth Circuit in its decision to set
aside the jury verdict in the seaman's favor, the Supreme Court
reasserted the well-settled principle that "[c]ourts are not
free to reweigh the evidence and set aside the jury verdict

                                14
                           CONCLUSION

     For the above stated reasons, we conclude, as a matter of

law, that there was no evidence of causation presented in the

trial of Forrest's negligence claim against Omega under the

Jones Act.   See Code § 8.01-680.    We will therefore reverse the

judgment entered in favor of Forrest upon his jury verdict

awarding him damages, and will enter final judgment in favor of

the appellants.

                                      Reversed and final judgment.




merely because the jury could have drawn different inferences
or conclusions." Id. at 110. The Court then concluded that
"the proofs here justified with reason the conclusion of the
jury that the accident caused the [seaman's] serious subsequent
illness." Id. In the instant case, we simply cannot ascribe
such justification to the jury's verdict in favor of Forrest in
the absence of any evidence tending to establish the element of
causation.

                                15
