CSX Transp., Inc. v. Pitts

• Decision Date: 30 March 2012
• Docket Number: No. 837,2010.,Sept. Term,837
• Citation: 38 A.3d 445,203 Md.App. 343
• Parties: CSX TRANSPORTATION, INC. v. Edward L. PITTS, Sr.
• Court: Court of Special Appeals of Maryland

203 Md.App. 343

38 A.3d 445

CSX TRANSPORTATION, INC.

v.Edward L. PITTS, Sr.

No. 837

Sept. Term

2010.

Court of Special Appeals of Maryland.

Feb. 8, 2012.Reconsideration Denied March 30, 2012.

J. Christopher Nosher, Annapolis, MD (Setliff Turner & Holland, PC, C. Stephen Setliff, Annapolis, MD, Evan M. Tager, Andrew E. Tauber, Carl J. Summers, Washington, DC), all on the brief, for appellant.

P. Matthew Darby & H. David Leibensperger, Towson, MD (Berman, Sobin, Gross, Feldman & Darby, LLP, Towson, MD, C. Richard Cranwell, Cranwell, Moore & Emick, PLC, Roanoke, VA), all on the brief, for appellee.

Panel: EYLER, DEBORAH S., GRAEFF and WATTS, JJ.

WATTS, J.

This case involves an action brought by Edward L. Pitts, Sr., appellee, against his employer, CSX Transportation, Inc., appellant, under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. (“FELA”), for damages allegedly incurred during forty years of employment with appellant. Appellee sought damages for various injuries including osteoarthritis of the knees allegedly caused by “large ballast,” or crushed rocks, used by appellant in rail yards and on walkway surfaces. Following a six-day trial, a jury sitting in the Circuit Court for Baltimore City returned a verdict in favor of appellee for a total of $1,246,000 in economic and non-economic damages.¹ After denial of post-trial motions, appellant noted this appeal.

On appeal, appellant presented five issues ² which we have rephrased and reordered as follows:

I. Whether appellee's FELA action is precluded by federal law, specifically, 49 C.F.R. § 213.103, a regulation promulgated under the Federal Railroad Safety Act (“FRSA”)?

II. Whether the circuit court erred in allowing the testimony of two of appellee's witnesses over appellant's objection?

III. Whether the circuit court erred in preventing appellant from cross-examining appellee's economist as to statistics concerning a railroad employee's average age of retirement?

IV. Whether the circuit court erred in instructing the jury as to underlying policy considerations of FELA and as to the violation of a statute as evidence of negligence?

V. Whether the circuit court erred in denying appellant's motion for new trial and/or remittitur on the grounds that the jury's verdict was not excessive?

For the reasons set forth below, we answer all five questions in the negative and, therefore, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1970, at age nineteen, appellee began his railroad career with appellant's predecessor. ³ Appellee began in the track department, where he worked for four months, installing anti-creepers ⁴ and generally maintaining the tracks. In September 1970, appellee transferred to train service. Appellee was drafted and served in the military from March 1971 through December 1972.

When he returned to the railroad, appellee began working in the train and engine department where he spent the remainder of his railroad career. From December 1972 until June 1974, appellee worked as a brakeman conductor. A brakeman is someone who “rides on the train with the engineer,” dismounts trains to throw the switches which physically move the rails to change the direction of the train from one track to another, and connects or knocks the brakes off of rail cars. At trial, appellee testified that in his time as a brakeman, he threw fifty to seventy-five switches daily, which required squatting or kneeling to unlock the switch, pull the switch up, and throw it over. Appellee testified that he connected fifty to seventy-five air brake hoses daily, squatting and lifting the hoses up and “coupling them up.” Appellee dismounted moving equipment seventy-five to one hundred times daily. Appellee estimated that overall, he walked approximately five to six miles per day while acting as a brakeman. According to appellee, he conducted most of these tasks on surfaces usually consisting of “the big ballast.” ⁵

From June 1974 until the late 1990's, appellee worked mainly as a fireman, hostler and brakeman, with some time spent serving as an engineer. According to the parties, a fireman is someone who works with, assists, and trains under the supervision of an engineer. An engineer is someone who conducts daily inspections of trains, which involves getting on and off of the motors, walking around the motors, and getting off and throwing switches. A hostler is someone who moves engines around, including splitting, cutting, and turning them. Appellee estimated that as a fireman and hostler, he walked approximately two miles per day. Appellee estimated that overall, from 1974 until the late 1990's, he walked two miles per day in rail yards on large ballast.

From the late 1990's through the time of trial in April 2010, appellee worked as an engineer, walking approximately a half a mile to one and a half miles a day. At the time of trial, appellee was fifty-nine years old and still working as an engineer. Appellee estimated, that in his position as an engineer, he continues to throw approximately five or six switches and connects approximately ten air brake hoses daily. According to appellee, throughout his career, he performed various other tasks, including: walking to and from engines in train yards, climbing in and out of rail cars, walking around and inspecting engines, and squatting to look at brake shoes. Overall, appellee performed most of his tasks on rail yard surfaces consisting of large ballast.

Appellee first began experiencing difficulties with his knees around 2003 and 2004. Appellee testified that his knees bothered him when performing certain basic tasks at work, including walking up and down steps and ladders. Appellee sought medical attention in February 2007 and his doctor advised him that he should have surgery on his right knee to remove the cartilage and torn muscle. Appellee decided not to have surgery at that point, but later returned to his doctor as the pain in both knees worsened. The doctor recommended that appellee undergo surgery on both knees. Appellee underwent arthroscopic surgery on both knees in January 2008. By that time, the doctor had indicated that appellee had osteoarthritis in his knees, including torn muscles and cartilage “floating around” and his knees had a general worn down “crab meat” type of appearance.

After five months of recovery, which included bi-weekly physical therapy for two months, appellee returned to work. Upon his return to work, over time, appellee's knees worsened and again became painful. Following the surgery, appellee received numerous gel lubricant injections in his knees, and is expected to receive the injections in “two series of three injections in each knee twice a year” as part of continuing treatment. According to appellee's expert witnesses, appellee's knees will worsen over time, and he will need replacement surgery on one or both of his knees.

Appellee brought suit under FELA in December 2008, alleging negligence on the part of appellant in the use of “large ballast” in rail yards and on walkway surfaces, and seeking damages for injuries, including those to his knees. In April 2010, a six-day trial was held in the circuit court. During the course of the trial, two of appellee's witnesses, Robert Jenkins and Robert Howe, testified over appellant's objections. Jenkins, who testified via videotape recorded deposition, is a retired conductor who worked for appellant in Jacksonville, Florida. Howe, who testified in person at the trial, is a conductor who, at the time of trial, worked for appellant in Hamlet, North Carolina. Both Jenkins and Howe served as local union chairpersons for the United Transportation Union while working for appellant.

Jenkins and Howe testified that they forwarded complaints to appellant from other railroad employees about the use of large ballast. Appellant objected to Jenkins and Howe's testimony on the grounds that the testimony was prejudicial and cumulative of testimony given by appellee's expert, Dr. Robert Andres. After argument from counsel, the circuit court overruled appellant's objections, stating that while the testimony “may be partially duplicative in part, the Court does not believe that it is so prejudicial that it outweighs the probative value for this trier of fact to be aware of the actual notice of the conditions as received.”

During trial, the circuit court sustained several objections which appellant alleges prevented full cross-examination of appellee's economics expert, Dr. Bruce Hamilton, about statistics as to a railroad employee's average age of retirement. At the end of the trial, the circuit court instructed the jury as follows:

It is clear and stipulated that [appellee] in this case is a railroad employee and therefore the activities and issues in this case are, in fact, covered under the Federal Employers['] Liability Act or what you may hear be referred to by the acronym of FELA, F–E–L–A.

Again, the Federal Employers['] Liability Act. That Act provides in substance that every railroad engage[d] in [interstate] commerce shall be liable in damages for injuries to [its] employees resulting in whole or in part from the negligence of any of [its] officers, agents or employees or from any defect or deficiency from [its] negligence in [its] cars, machinery, track, road bed or work areas.

You're further instructed that the Federal Employers['] Liability Act or FELA provides a cause of action to the railroad employee engaged in this [interstate] commerce for personal injury caused in whole or in part by the negligence by any of [its] carriers, employees or agents again, or by defects due to the [carrier's] negligence.

For your own understanding, if you would please, is that the Federal Employers['] Liability Act was, in fact, enacted back in 1908, while we were all young kids I take it.

The reason, if you will, is not as much of a debate in this case, but it was in recognition of the dangers involved in railroad work and to...