Csx v. Bickerstaff

• Decision Date: 26 August 2009
• Docket Number: No. 770, September Term, 2007.,770, September Term, 2007.
• Citation: 978 A.2d 760,187 Md. App. 187
• Parties: CSX TRANSPORTATION, INC. v. Richard BICKERSTAFF, et al.
• Court: Court of Special Appeals of Maryland

978 A.2d 760

187 Md. App. 187

CSX TRANSPORTATION, INC. v. Richard BICKERSTAFF, et al.

No. 770, September Term, 2007.

Court of Special Appeals of Maryland.

August 26, 2009.

Evan M. Tager (Andrew J. Pincus, Carl J. Summers, Mayer Brown, LLP on the brief of Washington D.C.) (James E. Gilson, Casey Gilson PC on the brief of Atlanta, GA.) (Douglas F. Murray, Amy E. Askew, Whiteford, Taylor & Preston, LLP on the brief of Baltimore), (Frank Gordon, Millberg, Gordon & Stewart, PLLC on the brief of Raleigh, NC), for appellant.

C. Richard Cranwell & P. Matthew Darby (M. Quentin Emick, Jr., Cranwell, Moore & Emick on the brief of Roanoke, VA) (Guy M. Albertini, Albertini & Darby, LLP on the brief, Baltimore), for appellee.

Panel: WOODWARD, ZARNOCH, and KARWACKI, ROBERT L. (Retired, Specially Assigned), JJ.

WOODWARD, J.

This case involves the consolidated actions of nine railroad employees—Richard Bickerstaff, Eddie Brown, Anthony Davidson, Michael Fedorchak, John Hartman, Robert Hobgood, Stephen Short, Nathaniel Young, and Larry Zientek—appellees, seeking relief pursuant to the Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. ("FELA") for cumulative trauma injuries sustained during the course of their employment with CSX Transportation, Inc., appellant. Following a seventeen-day trial, a jury sitting in the Circuit Court for Baltimore City found appellant liable, awarding appellees a total of $15,085,000 in damages.

On appeal, appellant presents eight questions for our review, which we have rephrased:

I. Did the trial court commit prejudicial error in permitting appellees' counsel to conduct an in-court demonstration using mainline ballast?

II. Did the trial court abuse its discretion in propounding a jury instruction on assumption of risk?

III. Did the trial court err in ruling that appellees' claims were timely as a matter of law?

IV. Did the trial court abuse its discretion in refusing to allow appellant to cross-examine appellees' economist with regard to railroad industry retirement age statistics?

V. Did the trial court err in declining to instruct the jury on the apportionment of damages?

VI. Did the trial court err in excluding evidence regarding the Railroad

Retirement Board Disability Benefits of Davidson and Young?

VII. Did the trial court abuse its discretion in denying appellant's motion for new trial on the ground that the jury's verdict was excessive?

VIII. Were appellees' claims precluded by the Federal Railway Safety Act, 49 U.S.C. § 20101 et seq. and the regulations promulgated thereunder?

We answer "No" to questions I through IV, VI, and VIII and "Yes" to question V. Therefore, we shall vacate the judgment of the circuit court and remand for a new trial on damages. Accordingly, we do not reach question VII.

BACKGROUND

On December 22, 2004, Bickerstaff commenced this action against appellant under FELA. On February 14, 2005, Brown, Davidson, Fedorchak, Hartman, Hobgood, Short, Young, and Zientek filed similar FELA actions.

On May 5, 2005, the circuit court consolidated over 50 FELA cases, all involving allegations of personal injury caused primarily by walking on the rocks, or ballast, that makes up the surfaces of appellant's rail yards. The trial judge assigned to the consolidated cases divided the claims into clusters for trial purposes. Cluster IV included appellees—Bickerstaff, Brown, Davidson, Fedorchak, Hartman, Hobgood, Short, Young, and Zientek—each of whom alleged injuries to one or both of his knees and one of whom, Brown, also alleged injuries to his back.

Following a seventeen-day trial beginning on March 5, 2007, and concluding on March 28, 2007, the jury returned a verdict against appellant in favor of appellees. Each appellee received an award ranging from $750,000 to $6,000,000. On March 29, 2007, the court ordered the entry of judgment in favor of appellees. After the denial of its post-trial motions, appellant timely noted this appeal on June 4, 2007.

A. Appellant & Its Rail Yards

Appellant operates rail yards in the Baltimore area and elsewhere in Maryland. A rail yard consists of rows of parallel railroad tracks where trains are parked, taken apart, and reconfigured into different trains. One or more mainline tracks connect the rail yard to appellant's rail network.

The surface of appellant's rail yards consists of ballast, slag,¹ and cinders. Railroad "ballast," or crushed rock, is the most common surface material and has many different functions depending on its location in the yard. Ballast supports the railroad tracks and track structures, facilitates drainage, and provides a walking surface for railroad employees.

Ballast is graded in different sizes.² Large ballast, also termed mainline ballast or track ballast, is about 1" to 2 3/4" in size. Mainline ballast best supports the railroad tracks and facilitates track drainage.³ Small ballast, or walkway ballast, is much smaller than mainline ballast, ranging in size from 3/8" to 1". The presence of small ballast in the rail yards provides a relatively safer walking surface. Mainline ballast is not necessary for drainage in the yard as it is on the tracks, because railroads can construct underground drainage systems, which provide adequate drainage for the track system. When mainline ballast is used in the rail yards, it is unstable to walk on and poses a slip and fall hazard.

B. Appellees

Bickerstaff is a 56-year old car inspector with a left-knee condition who was still working at the time of trial. He claimed economic losses of $189,300.

Brown is a 57-year old trainman with a right-knee condition and a herniated disk. He stopped working in August 2006. Brown claimed economic losses of $382,700.

Davidson is a 52-year old trainman with a right-knee condition. He stopped working in October 2007. Davidson claimed $612,700 in economic losses.

Fedorchak is a 53-year old trainman with left- and right-knee conditions who was still working at the time of trial. Fedorchak claimed economic losses of $196,600.

Hartman is a 52-year old trainman with left- and right-knee conditions who was still working at the time of trial.

Hobgood is a 62-year old conductor and flagman with left- and right-knee conditions. He was still working at the time of trial. Hobgood claimed economic losses of $44,400.

Short is a 55-year old conductor with a right-knee condition. He stopped working in May 2005. Short claimed economic damages of $800,000.

Young is a 51-year old trainman with left- and right-knee conditions who was still working at the time of trial. He claimed economic damages of $356,200.

Zientek is a 51-year old car inspector with left- and right-knee conditions. He stopped working in February 2007. Zientek claimed economic losses of $532,500.

C. The Nature of Appellees' Work

Appellees' FELA actions alleged that their knee conditions (and, additionally in the case of Brown, a back condition) were caused by their work in appellant's rail yards. Each appellee had worked for appellant for approximately 30 to 35 years, mainly as a trainman or car inspector.

Brown, Davidson, Fedorchak, Hartman, Hobgood, Short, and Young each held the position as trainman, also termed conductor, brakeman, or switchman. A trainman works in the "yards" and the "roads." In the yard, a trainman "switch[es] cars" and "throw[s] switches," meaning that he separates the rail cars and moves them to different tracks within the yard for the purpose of reconfiguring the trains so that they can leave the yard in the appropriate order. Switching cars involves repetitive squatting and crouching. A trainman also manually ties down handbrakes, which involves repetitive climbing on rail cars. He couples air hoses, which ensures air flowing to the rear of the train for the mechanical brakes to operate, during which process the trainman repeatedly straddles the rail of the car and assumes a crouching position. During each shift, a trainman walks considerable distances, ranging from five to ten miles.

Bickerstaff and Zientek worked for appellant as car inspectors, or carmen. A car inspector inspects approximately 150 to 200 rail cars per shift to ensure that the cars are in safe operating order. Inspection of each rail car entails repetitive squatting. From a squatting position, the car inspector examines the underneath of the railroad car from several different inspection points. If further inspection is required, the car inspector may crawl underneath the railroad car, sometimes on his hands and knees. During an inspection, a car inspector may have to walk back and forth from one end of the railroad car to another. In a typical shift, a car inspector walks about 5 to 8 miles. In some of appellant's rail yards, the yard consists of about 80% large ballast.

D. The Injuries Sustained

Each appellee claimed to have sustained cumulative trauma over the course of his 30 to 35 years of service working for appellant. Appellees all were diagnosed with osteoarthritis⁴ to one or both knees and some claimed injury to the menisci⁵ in their knees. Additionally, Brown alleged a cumulative trauma injury to his back. Most appellees had undergone arthroscopic surgery on one or both knees, and many appellees had received injections into their knees of either cortisone, an anti-inflammatory, or Synvisc, a synthetic lubricant. Appellees' medical experts testified that most of the appellees will need knee replacement surgery at some point in the future.

Appellees attributed their injuries to ergonomic risk factors for cumulative trauma injuries associated with the physical activity of trainmen and car inspectors, namely, the repetitive squatting, crouching, crawling, climbing rail cars, mounting and dismounting moving rail cars, and years of walking on mainline ballast. Appellees alleged that appellant negligently used significant amounts of large ballast, rather than small ballast, in its rail yards in violation of industry standards and appellant's own rules....