CSX Transp., Inc. v. Pitts

• Decision Date: 28 February 2013
• Docket Number: Sept. Term, 2012.,No. 34,34
• Citation: 61 A.3d 767,430 Md. 431
• Parties: CSX TRANSPORTATION, INC. v. Edward L. PITTS, Sr.
• Court: Maryland Court of Appeals

430 Md. 431

61 A.3d 767

CSX TRANSPORTATION, INC.

v.Edward L. PITTS, Sr.

No. 34, Sept. Term, 2012.

Court of Appeals of Maryland.

Feb. 28, 2013.

Andrew E. Tauber (Evan M. Tager, Carl J. Summers, Paul W. Hughes of Mayer Brown LLP, Washington, DC; Mitchell Y. Mirviss of Venable LLP, Baltimore, MD; C. Stephen Setliff of Setliff & Holland, PC, Glen Allen, VA, J. Christopher Nosher of Setliff & Holland, PC, Annapolis, MD), on brief, for petitioner.

P. Matthew Darby and H. David Leibensperger of Berman, Sobin, Gross, Feldman & Darby LLP, Towson, MD; C. Richard Cranwell of Cranwell, Moore & Emick, PLC, Roanoke, VA, on brief, for respondent.

Louis P. Warchot, Daniel Saphire, Association of American Railroads, Washington, DC, James W. Constable, Wright, Constable & Skeen, L.L.P., Baltimore, MD, for amicus curiae brief of the Association of American Railroads in Support of Petitioner.

Lawrence M. Mann, Alper & Mann, PC, Bethesda, MD, for amici curiae brief of Rail Labor Division of the Transportation Trades Department, AFL–CIO, and the Rail Conference of the International Brotherhood of Teamsters.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

ADKINS, J.

This negligence case, brought under the Federal Employers Liability Act (“FELA”), presents several issues not found in a typical negligence claim, but of growing significance nationwide. The issue that has been drawing most of the courts' time and attention is federal preclusion—whether and when a railroad employee's negligence action under FELA may be precluded by the Federal Railroad Safety Act (“FRSA”) and regulations enacted thereunder. Here, we are asked to decide whether a regulation governing the railroad's use of ballast to support railroad tracks precludes a FELA action that alleges the railroad was negligent in failing to use small ballast in its walkways, so as to provide a smoother and safer walking surface for employees.¹ We join those courts that hold that a negligence action alleging the improper use of ballast will be precluded only to the extent to which the ballast performs a track-support function. In so doing, we conclude that the railroad should, fairly, bear the burden of proving the facts that support preclusion. We also address complaints about two jury instructions and the trial court's rulings on the defense's efforts to cross-examine the plaintiff's expert economist regarding industry-wide worklife expectancy.

FACTS AND LEGAL PROCEEDINGS

Edward L. Pitts, Sr., filed suit in the Circuit Court for Baltimore City against his employer CSX Transportation, Inc. (“CSX”) under FELA, alleging that CSX was negligent in its use of large ballast rather than small ballast in the areas where Pitts worked. Pitts claimed that walking on the large ballast caused him to develop severe osteoarthritis in both knees.

Pitts began working for CSX at the age of 19 and was 59 at the time of trial. He testified that, from June to September of 1970, he worked in the track department, where he was required to walk along the tracks installing anticreeper devices. From December 1972 to June 1974, Pitts worked as a conductor and brakeman. During that time period, he walked betweenfive to six miles a day, was required to disassemble the brakes, and dismounted moving equipment. From June 1974 till the late 1990s, Pitts worked as a fireman, hostler, conductor, and brakeman. In these positions, he walked between two to three miles a day, would inspect the trains before they left the yard, connected and disconnected the engines, coupled and uncoupled air hoses, and threw the switches to change the direction of the train from one track to the other. From the late 1990s until trial, Pitts worked as an engineer. He walked between half-a-mile to a mile-and-a-half a day and inspected the engines.

Despite feeling pain in his knees as early as 2003, Pitts did not see a doctor until 2007. At that time, he had grade 3 osteoarthritis, torn meniscus tissue in both knees, and extremely worn cartilage. In 2007, the doctor suggested knee surgery, but Pitts initially declined, until early 2008 when he underwent arthroscopic surgery on both knees. After missing five months due to the surgeries, Pitts returned to work and was still employed as of the date of trial.

At trial, Pitts testified that he had hoped to work until the age of 68 because his daughter is a single parent, and he wanted to help put his grandson through college. In calculating Pitts's loss of future earnings, his expert economist assumed a retirement age of 67 based on information provided by Pitts's lawyer. CSX sought to show that Pitts would not have worked until the age of 68 by cross-examining the expert economist regarding statistics about the average age of railroad workers' retirement (allegedly age 60). The trial court allowed only limited questioning of this nature.

After a six-day trial, the jury returned a verdict in Pitts's favor, finding CSX seventy percent negligent, Pitts twenty percent negligent, and allocating ten percent to other causes. The jury awarded Pitts a total of $1,780,000 for his injuries—$444,000 for future loss wages and $1,335,000 for non-economic damages. The award was subsequently reduced to $1,246,000 according to the jury's allocation of negligence.

The Court of Special Appeals affirmed. In a reported opinion authored by Judge Watts, the intermediate appellate court held that Pitts's ballast claim was not precluded by federal law, the trial court did not abuse its discretion in limiting the use of the retirement statistics on cross-examination, and CSX was not prejudiced by two allegedly erroneous jury instructions. CSX Transp., Inc. v. Pitts, 203 Md.App. 343, 371, 389, 391–93, 38 A.3d 445, 461–62, 471–72, 473–74 (2012).

On June 21, 2012, this Court granted a writ of certiorari, CSX Transportation v. Pitts, 427 Md. 62, 46 A.3d 404 (2012), to answer the following questions:

1. Whether the federal regulation governing the ballast used to support railroad track, 49 C.F.R. § 213.103, applies to track located within rail yards (and therefore precludes claims based on the selection of ballast used to support track in rail yards), or, as the Court of Special Appeals held, applies only to track on the main line.

2. Whether the Court of Special Appeals acted contrary to the Supreme Court's decision in Norfolk Southern Railway v. Sorrell, 549 U.S. 158, 171 [127 S.Ct. 799, 166 L.Ed.2d 638] (2007), when it adopted “an employee-friendly standard of review” in FELA cases.

3. Whether a defendant should be allowed to cross-examine a plaintiff's economist about work-life statistics which show that the plaintiff's claim for future economic damages is likely exaggerated because it rests on an unrealistic assumption about when the plaintiff likely would have retired.As CSX explained in its petition for certiorari and brief, the crux of the second issue is the intermediate appellate court's review of two allegedly erroneous jury instructions.

We shall hold first that Pitts's FELA claim was not precluded by 49 C.F.R. § 213.103 because CSX failed to prove that the claim was based on ballast performing a track-support function. Second, neither of the jury instructions rises to the level of prejudicial error. Finally, the trial judge did not abuse his discretion in limiting, without banning, questions about worklife expectancy tables on cross-examination.

DISCUSSION

In this appeal, CSX has requested three alternative forms of relief. First, it asks for judgment as a matter of law, arguing that a FRSA regulation substantially subsumes the railroad's choice of ballast to support its tracks, and thereby, precludes Pitts's negligence claim under FELA. Second, CSX seeks a new trial, claiming that two jury instructions—explaining Congress's purpose behind enacting FELA and stating that violation of a statute is evidence of negligence—were both erroneous and prejudicial. Third, CSX asks for a new trial on the issue of damages, arguing that the trial court committed prejudicial abuse of discretion in limiting the cross-examination of an expert economist. We will take each in turn.

FRSA's Preclusive Effect Upon Negligent–Choice–of–Ballast Claims Under FELA

CSX seeks to use the doctrine of preclusion to prevent Pitts, as a matter of law, from recovering on his claim that CSX negligently used large ballast, instead of small ballast, in the areas in which he was required to walk to perform his work duties.² Specifically, CSX argues that FRSA regulation 49 C.F.R. § 213.103 covers the issue of ballast choice and thereby precludes Pitts from bringing a FELA negligence action based on CSX's choice of ballast in its yards. To determine the potential preclusive effect of this regulation, we first examine the interplay between the two federal statutes: FELA, which authorizes negligence suits against railroads by their employees, and FRSA, which is designed to promote safety through uniform national regulations. We then determine the extent to which 49 C.F.R. § 213.103 may preclude a FELA negligence claim based on a railroad's choice of ballast. Finally, we decide whether CSX has met its burden of proving that 49 C.F.R. § 213.103 precluded Pitt's FELA claim.

FELA and FRSA

Congress enacted FELA in 1908 “to provide a remedy to railroad employees injured as a result of their employers' negligence.” Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 775 (7th Cir.2000). Under the Act, “[e]very common carrier by railroad while engaging in [interstate] commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence ... of such carrier....” 45 U.S.C. § 51 (2006). Interpreting the Act, the Supreme Court has made “clear that the general congressional intent was to provide liberal recovery for injured workers.” Kernan v. Am. Dredging Co., 355 U.S. 426, 432, 78...