Bittinger v. Csx, 1090, Sept. Term, 2006.

Decision Date26 September 2007
Docket NumberNo. 1090, Sept. Term, 2006.,1090, Sept. Term, 2006.
Citation932 A.2d 1243,176 Md. App. 262
CourtCourt of Special Appeals of Maryland

John E. Basilone (Willard J. Moody, Jr., Moody, Strople, Kloeppel, Basilone & Higginbotham, Inc., on the brief), Portsmouth, VA; James E. Walsh, on the brief, Cumberland, MD, for appellant.

Douglas F. Murray (Amy E. Askew, Whiteford, Taylor & Preston, LLP, on the brief), Baltimore, MD, for appellee.



Appellant, Richard Lynn Bittinger, an employee of appellee CSX Transportation, Inc., ("CSX"), a railroad company, suffered a back injury while attempting to throw a railway switch to permit a train to change tracks. To obtain compensation for his injury, he filed suit in the Circuit Court for Allegany County against CSX under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60. That suit ended in a jury verdict in favor of CSX.

On appeal, Bittinger presents three issues:

I. Whether the circuit court erred in admitting evidence of prior FELA claims made by Bittinger for similar injuries and that he was compensated for those injuries by CSX.

II. Whether the circuit court erred in refusing several of Bittinger's requested jury instructions and his proposed verdict form.

III. Whether CSX engaged in improper argument and misstated the law applicable to the case.


Prior to the injury, which is the subject of this litigation, appellant sustained three back injuries while working for CSX: Those injuries occurred in 1984, 1994, and 1999. After each injury, Bittinger filed a claim under the Federal Employers' Liability Act ("FELA"). That act allows railroad employees to pursue claims against their employers for injuries caused "in whole or in part" by the railroads' negligence. CSX Transp., Inc. v. Miller, 159 Md.App. 123, 132-33, 858 A.2d 1025 (2004). In each instance, appellant's claim was settled and, pursuant to that settlement, he received compensation. After appellant's 1999 injury, his treating physician released him to return to work at CSX, and he did.

About a year later, on June 23, 2003, appellant purportedly suffered the back injury that is the subject of this litigation. At the time, he was working as a conductor for CSX at its railroad yard in Beryl, West Virginia. The yard had a number of "switches" that CSX employees were to "throw" to permit trains to change from one track to another. The particular switch of interest in this case was the "No. 9 switch"; it was the main switch in the yard and thus the most frequently used. A standard railroad switch, the No. 9 consisted of a ball weighing about 30 pounds and a lever; it required manual operation. When the switch was thrown from one side to the other, the lever traveled in a 180 degree arc.

Mud, sand and rust were commonly found in the switches and witnesses could not recall a time when there was enough mud in a switch to cause it to "hang up" in the middle of a throw, or otherwise prevent the throwing of the switch. Moreover, the switches were routinely inspected by CSX employees for larger items such as rocks and sticks that might affect the switches' operation.

The track in Beryl Yard, according to CSX employee Michael E. Dier, was in an area which, because it was "low" lying, had a drainage problem. To alleviate this condition, he installed, before appellant was injured, four drains and a pipe underneath the track in the vicinity of the No. 9 switch and "surfaced the track with a tamper to raise it up."1 But those efforts failed to completely rectify the problem.

On June 23, 2003, the day of the accident, appellant was working at the yard with fellow crew members Ronald Yutzy and Tom Maloney. At some point, Yutzy threw the No. 9 switch. It was "hard to throw," as were all the other switches in the yard that morning because of what he described as a "lack of maintenance." The No. 9 switch was usually cleaned and lubricated with graphite every 14 days, but had not been serviced, according to Merle Lowery, the track operator, in the 14 days leading up to the June 23, 2003 incident. Moreover, Yutzy testified that there was "mud, sand and rust" on the switches that day. Although Yutzy found the No. 9 switch "hard to throw" that morning, he completed the throw and did not alert appellant or, it appears, anyone else that he had had a problem with the switch.

Appellant had not until that day had any difficulty throwing the No. 9. But that morning, after observing that mud had been pumped into the No. 9 switch, he nonetheless attempted to throw it. When he did, it stopped suddenly in mid-arc; at which time he felt "a sharp pain" running from his back down to his leg. He then "fell to the ground." Able to contact Yutzy by radio, he told Yutzy what had happened and that he had hurt his back.

Yutzy returned to the site of the No. 9 switch, where he completed the "throw," which appellant had begun, without any significant trouble. He did, however, inform Merle Lowery that the "switches were hard to throw . . ." That prompted Lowery to clean and graphite the No. 9 switch. When Yutzy later attempted to throw the switch, he found it, in his words, "a lot easier" to throw. The next day, appellant saw a doctor and called his supervisor, Steven Vinci. They filled out an accident report together. In that report, there was no mention of mud or excessive sand in the No. 9 switch.

On July 2, 2003, appellant's treating physician, Patrick Ireland, M.D., recommended an MRI scan of appellant's lumbar spine. The MRI showed a herniated disc. On September 20, 2004, appellant had back surgery; after which he wore a back brace 24 hours a day for five months from September, 2004 through February, 2004.

On December 1, 2004, appellant brought an action in the circuit court against CSX alleging both that CSX had negligently failed to provide him with a reasonably safe place to work under the FELA and, without specific references, had violated the federal Track Safety Standards, 49 C.F.R. Part 213 et seq. Appellant amended his complaint by adding the claim that, "starting on or about March 12, 2002, and continuing thereafter" until his injuries on June 23, 2003, CSX "negligently and carelessly approved and assigned [him] to work for which he was not physically suited, which . . . caused or contributed to" his June 23, 2003 injuries.

Before trial, appellant filed a motion in limine to exclude any mention, during trial, of his prior FELA claims against CSX and the amounts paid to him in compensation for those claims. The court denied that motion, stating that the admissible evidence would be "limited to showing prior back injury and that those claims have been resolved."


Appellant argues that the circuit court erred in denying his motion in limine and in permitting CSX to cross-examine him about his prior FELA claims and that he received compensation for those claims. Appellant's motion, which was among many in-limine motions that he filed in this case, requested the exclusion of the FELA claims that he had made for back injuries he sustained in 1984, 1994, and 1999. The circuit court denied that motion, declaring that CSX could introduce evidence that the claims were made and that appellant was compensated for them but not the amounts of compensation he received for each claim. Pursuant to that ruling, CSX was permitted to cross-examine appellant as follows:

COUNSEL: Mr. Bittinger, you brought a claim against the railroad for the 1984 back injury, correct?

. . . .

APPELLANT: Yes, sir.

. . . .

COUNSEL: And okay, that claim, on that claim you received compensation and that claim was settled and resolved, correct?

APPELLANT: That claim was resolved.

COUNSEL: Okay, and you also brought a claim against the railroad for your 1994 back injury, correct?


COUNSEL: And you received compensation on that claim and that claim was settled and resolved.

APPELLANT: That claim was resolved.

COUNSEL: And indeed you even brought a claim against the railroad for your 1999 back injury to which you said on your incident report that no one was at fault. And on that claim you received compensation and that claim was settled and resolved.

APPELLANT: That claim was resolved.

COUNSEL: Okay, so this is the fourth claim you have brought against C.S.X. claiming injuries to your back, is it not?

APPELLANT: That would be correct.

. . . .

Standard of Review

Before addressing the merits of appellant's claims, we must first consider appellant's curious claim as to the proper standard of review we should apply in reviewing his contention. Although it is "well settled" in Maryland that "the admission of evidence is committed to the considerable and sound discretion of the trial court" and that such an admission will not be disturbed in the absence of an abuse Dupree v. State, 352 Md. 314, 324, 722 A.2d 52 (1998) (citations omitted), appellant nonetheless suggests that we should apply a de novo standard of review. For that proposition, he cites two cases: Zografos v. Mayor and City Council of Baltimore, 165 Md.App. 80, 884 A.2d 770 (2005) and McCormack v. Board of Educ. of Baltimore County, 158 Md.App. 292, 857 A.2d 159 (2004).

Although appellant is correct in his assertion that we did apply a de novo standard of review to the question of admissibility in those two cases, we did so only because in each case the circuit court admitted the evidence in dispute based on an erroneous interpretation of a statute, and we hardly need to point out to counsel that interpreting a statute is a question of law and that such questions require a de novo review. See Maryland-National Capital Park and Planning Com'n v. Anderson, 395 Md. 172, 181, 909 A.2d 694 (2006). In contrast, here, the circuit court did not base its decision on an interpretation of a statute. It admitted the evidence in question as an exercise of its...

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