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.
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 between
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:
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.
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.
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.
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
In 1970, Congress enacted FRSA "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101 (2006). FRSA authorizes the Secretary of Transportation to "prescribe regulations and issue orders for every area of railroad safety." Id. § 20103(a). The Act provides that "[l]aws, regulations, and orders related to railroad safety ... shall be nationally uniform to the extent practicable." Id. § 20106(a)(1). The regulation at issue in this case, 49 C.F.R. § 213.103, was adopted under the authority of FRSA. Under FRSA's express preemption clause, "[a] State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation ... prescribes a regulation or issues an order
FRSA does not explain how it interacts with another federal statute covering the same subject matter. See Cowden v. BNSF Ry. Co., 690 F.3d 884, 890 (8th Cir.2012). Nevertheless, CSX asks us to hold that FRSA precludes a federal negligence suit under FELA to the same extent it would preempt a state law negligence claim.
We need not decide whether a FRSA regulation can ever preclude a FELA claim because a close analysis of the record assures us that, even if we applied the state law preemption standard, the Circuit Court did not err in denying CSX's motion for judgment. We explain.
Under the state law preemption test CSX wants us to apply in the federal context, a FRSA regulation would preclude a FELA negligence claim only if the regulation "covers" or "substantially subsumes" the subject matter of the claim. See Easterwood, 507 U.S. at 664, 113 S.Ct. at 1738. Pitts's FELA claim alleges that CSX was negligent in its choice of ballast in its yards. Thus, for his claim to be precluded, there must be a FRSA regulation covering a railroad's use of ballast.
CSX relies on 49 C.F.R. § 213.103, which is the only FRSA regulation to discuss the use of ballast, namely the use of ballast for the purposes of supporting railroad track. It reads as follows:
49 C.F.R § 213.103.
CSX claims there "is no dispute" that this regulation "substantially subsumes the subject of the ballast that is used to support railroad track." In making that statement, CSX relies primarily on a recent Sixth Circuit case, Nickels v. Grand Trunk Western Railroad, Inc. In that case, two railroad employees sued Grand Trunk for "fail[ing] to provide a safe working environment by using large mainline ballast — instead of smaller yard ballast — underneath and adjacent to tracks receiving heavy foot traffic." 560 F.3d at 428. The Sixth Circuit held that 49 C.F.R. § 213.103 "leaves the matter [of ballast size] to the railroads' discretion so long as the ballast performs the enumerated support functions. In this way, the regulation substantially subsumes the issue of ballast size." Id. at 431. Because both employees alleged negligence in using large ballast "to support the railroad track," but not "in areas completely separate from those where track stability and support are concerned," their claims were precluded by the regulation. Id. at 432-33.
CSX argues further that "many courts have concluded that the [Federal Railroad Administration's ("FRA")] ballast regulation `substantially subsumes' the subject of — and therefore precludes — FELA claims such as [Pitts's] that are based on
Responding, Pitts relies on two Court of Special Appeals' opinions — CSX Transportation, Inc. v. Miller and CSX Transportation, Inc. v. Bickerstaff — to argue that 49 C.F.R. § 213.103 does not preclude FELA claims based on negligent use of ballast in walkways. In Miller, like this case, the railroad employee filed suit under FELA to recover "for bilateral osteoarthritis of the knees caused by cumulative trauma occurring over the period of his employment with CSX." 159 Md.App. 123, 146, 858 A.2d 1025, 1038 (2004). In that case, CSX argued that any claim of injury caused by the use of ballast was precluded under 49 C.F.R. § 213.103. The Court of Special Appeals disagreed, stating:
Id. at 167, 858 A.2d at 1050. The court held that the employee's FELA claim was not precluded because 49 C.F.R. § 213.103 does not cover the issue of walkways alongside the tracks. Id. at 171, 858 A.2d at 1052.
Likewise, Bickerstaff involved nine railroad employees who filed suit under FELA seeking recovery for knee injuries resulting from "walking on the rocks, or ballast, that makes up the surfaces of [CSX's] rail yards." 187 Md.App. 187, 201, 978 A.2d 760, 768 (2009). There, CSX argued that Miller was wrongly decided and reasserted its claim that the employees' claims of injury caused by walking on the ballast were precluded by 49 C.F.R. § 213.103. Id. at 260-61, 978 A.2d at 802-03. In support of that argument, CSX relied primarily on a Georgia Court of Appeals' case which held: "To the extent that [the employee's] FELA claim rests upon different ways by which [the railroad] might have supported the mainline track to comply with 49 C.F.R. § 213.103, the negligence claim is precluded." Id. at 261, 978 A.2d at 803 (quoting Norris, 635 S.E.2d at 183) (quotation marks omitted).
But the Court of Special Appeals concluded that Norris was "entirely consistent with [its] decision in Miller [which] recognized that 49 C.F.R. § 213.103 governs the ballast along the mainline track and not the ballast in the rail yard." Id. at 262-63, 978 A.2d at 803-04. Affirming its holding in Miller, the Bickerstaff court held that the employees' claims were not precluded because they were based on "maintaining safe walkways in the rail yards and make no mention of alternate ways in which [CSX] might have supported its mainline track." Id. at 263-64, 978 A.2d at 804.
As further support, Pitts argues that "at least 10 published opinions outside Maryland have held that 49 C.F.R. § 213.103 has no preclusive effect on FELA negligent walkway ballast choice claims or, in the case of state regulations, no preemptive effect on state ballast regulations."
We agree with CSX that 49 C.F.R. § 213.103 "covers" and "substantially subsumes" the use of ballast that supports the track. As the Sixth Circuit noted in Nickels: "Rather than prescribing ballast sizes for certain types or classes of track, the regulation leaves the matter to the railroads' discretion
We also agree with Pitts, however, that 49 C.F.R. § 213.103 does not "cover" or "substantially subsume" the use of ballast in walkways that do not perform a track-support function. As Chief Judge Easterbrook of the Seventh Circuit recently stated: "no federal regulation deals with walkways." Norfolk S. Ry. Co. v. Box, 556 F.3d 571, 572 (7th Cir.2009); see also Grimes, 116 F.Supp.2d at 1002-03 ("Every circuit that has considered the issue of walkways has concluded that the FRSA is silent on the question of walkways. The regulations are directed toward creating a safe roadbed for trains, not a safe walkway for railroad employees who must inspect the trains.").
This is made clear by the FRA's decision in 1977 not to adopt federal walkway rules. See Box, 556 F.3d at 573. In 1976, FRA contemplated issuing rules about walkways and asked for comments about whether walkways adjacent to railroad tracks should be required. Id. (citing 41 Fed.Reg. 50,302 (1976)). FRA decided not to adopt any regulations regarding the issue of walkways, stating that, "if an employee safety problem does exist because of the lack of walkways in a particular area or on a particular structure, regulation by a State agency that is in a better position to assess the local need is the more appropriate response." Id. (quoting 42 Fed. Reg. 22, 184-85 (1977)) (quotation marks omitted).
Reviewing the cases, it appears that almost every court to have addressed the issue, including our own Court of Special Appeals, has agreed that 49 C.F.R. § 213.103 does not preclude claims based on ballast used in walkways. See Bickerstaff, 187 Md.App. at 263-64, 978 A.2d at 804; Miller, 159 Md.App. at 170-71, 858 A.2d at 1052; see also Box, 556 F.3d at 572-73; Davis, 598 F.Supp.2d at 958-59; Grogg v. CSX Transp., Inc., 659 F.Supp.2d 998, 1014-16 (N.D.Ind.2009); Grimes, 116
Because it is clear that 49 C.F.R. § 213.103 precludes only claims pertaining to the use of ballast for the purposes of supporting railroad track but not its use in the walkway areas, the true contention between the parties is not what 49 C.F.R. § 213.103 precludes, but whether Pitts's claim was based on ballast that performed a track-support function, or ballast that served only as a walkway unrelated to track support. A resolution of this issue requires us to examine who has the burden of proof, and exactly what was proved at trial.
In determining who bears the burden of proving that a claim is, or is not, precluded by a federal regulation, the Supreme Court has provided guidance. In Easterwood, the case which CSX urges us to follow, the Supreme Court held:
507 U.S. at 664, 113 S.Ct. at 1738. So, if a railroad company argues that a FELA claim is precluded by a FRSA regulation, then it has the burden of proving that such a regulation "substantially subsumes" the particular FELA claim. See Cowden, 690 F.3d at 892-93 (taking this language from Easterwood and placing the burden of proof on the railroad company advocating
Federal preclusion, like its counterpart in federal preemption, is an affirmative defense. See Duluth, Winnipeg & Pac. Ry. Co. v. City of Orr, 529 F.3d 794, 797 (8th Cir.2008) ("It is the burden of the party advocating preemption under § 20106(a)(2) to show that a federal law, regulation, or order covers the same subject matter as the state law, regulation, or order it seeks to preempt."); Fifth Third Bank v. CSX Corp., 415 F.3d 741, 745 (7th Cir.2005) ("Federal preemption is an affirmative defense upon which the defendants bear the burden of proof."); Village of Ridgefield Park v. N.Y., Susquehanna & W. Ry. Corp., 318 N.J.Super. 385, 724 A.2d 267, 272 (App.Div.1999) ("The railroad raises preemption as an affirmative defense and has the burden of persuasion to demonstrate the [plaintiff's] claims are indeed preempted."). This Court has long held that "with all affirmative defenses, [the defendant] bears the burden of proof." Wells Fargo Home Mortg., Inc. v. Neal, 398 Md. 705, 730 n. 12, 922 A.2d 538, 553 n. 12 (2007).
Requiring CSX to prove that Pitts's FELA claim is precluded by 49 C.F.R. § 213.103 "is consistent with the `rule grounded in common sense that the burden of proving a fact is on the party who presumably has peculiar means of knowledge' enabling him or her to establish the fact." Arrington v. Dep't of Human Res., 402 Md. 79, 102, 935 A.2d 432, 446 (2007) (citation omitted). As CSX maintains the track-support structure, it is in a far better position to prove which part of the ballast supports the track and which does not.
The question still remains as to the nature of that burden, and whether CSX satisfied it at trial.
Pitts testified that as a fireman, hostler, and brakeman, he would walk two to three miles a day. As an engineer, he testified that he would walk between half-a-mile to a mile-and-a-half a day. To illustrate the surfaces on which he walked, Pitts identified numerous pictures of large ballast in CSX's Baltimore yards and testified that those pictures reflected the conditions in which he was required to work. Pitts testified that he would most often encounter large ballast while he was working in the yards, and that the type of ballast on which he walked did not vary much between yards because they all contained "[p]retty much all road ballast."
Pitts then called Raymond Duffany as an expert in the area of railroad engineering and safety. Duffany testified that "the large ballast isn't really safe to walk on." He testified that in his experience, "after several years of putting the large ballast down in the yards, the number of injuries related to walking on ballast, such as slips, trips and falls, started to increase." But after "a directive to start putting small ballast down in the yards," those injuries went down. He then testified that, according to industry standards, "[t]he one and a half inch ballast is too large for use in yard tracks. Three quarter inch [walking] ballast is to be used." He also testified that CSX and the American Association for Railway Engineers adopted similar requirements.
Yet, said Duffany, CSX was not in compliance with these standards.
On cross-examination of Duffany, CSX sought to prove that the large ballast on which Pitts walked was necessary to support the track structure:
CSX also got Duffany to concede that CSX would be in compliance with its own standards and industry standards for areas where CSX had small ballast in its yards.
During the defense's case, CSX called a witness to rebut Pitts's claim that it used large ballast in the areas where Pitts worked. As its corporate representative, CSX called Matt Gross, who serves as the Road Foreman of Engines and supervises the locomotive engineers in his territory. Gross testified that he took about 3,000 steps in the typical work shift. When asked on what surfaces those steps were taken, the following exchange took place:
Contradicting Duffany's testimony, Gross testified that all of CSX's Baltimore yards contain small ballast. Yet, after Gross reviewed during cross-examination the photographs of large ballast taken by Duffany, he acknowledged there was large ballast in the yards, asserting that those are places where engineers never walk. To support his testimony, Gross identified numerous photographs taken by CSX showing small ballast in areas of CSX's Baltimore yards where engineers would regularly walk.
The defense then rested without eliciting any other form of testimony or evidence regarding whether the claims made by Pitts regarded ballast that performed a track-support function or not. At that point, CSX moved for judgment, arguing that Pitts's claim was precluded as a matter of law because parts of it were based on ballast that performed a track-support function:
Hearing the argument, the trial court was obviously concerned that there was insufficient evidence to prove the preclusion defense as a matter of law:
While pondering the motion, the trial court asked defense counsel for the specific evidence showing that Pitts walked on ballast that performed a track-support function:
Concluding its preclusion argument, CSX asserted:
These passages from the trial demonstrate that the only instance in which CSX attempted to adduce evidence to meet its burden of showing that Pitts only or primarily walked on support ballast was during the cross-examination of Pitts's expert Duffany. CSX cites testimony where Duffany acknowledged that ballast "directly underneath the track or within the gauge of the track" and ballast "immediately adjacent to the track" are used to support the track structure. CSX argues that Pitts worked in this area, pointing to Pitts's testimony that his "duties were of the sort that required him to be either within the gauge of the track or immediately adjacent to the track." It is this testimony, in addition to one picture in which a person coupling an air hose is shown with one leg inside the track rails, on which CSX bases its entire preclusion defense.
Fatal to CSX's defense is that it never proved what area of ballast actually provides the track support. It is likely that Pitts walked on some track-support ballast. But to warrant the grant of its motion for judgment on preclusion grounds, CSX was required to show what area of ballast was used for track support, so that the trial court could determine whether that area substantially covered the places where Pitts walked on ballast.
CSX claims that the track-support structure included the ballast located "immediately adjacent to the track."
Evidence that Pitts walked on track-support ballast could have contributed to a preclusion defense — if CSX had (1) proven where the track-support ballast was located, and (2) then asked for jury resolution of the question of whether walking on track-support ballast substantially caused his injury.
Alternatively, CSX seeks a new trial based on two allegedly erroneous jury instructions:
In determining whether there was error, "[i]t is well settled that when [an] objection is raised to a court's instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole." Collins v. State, 318 Md. 269, 283, 568 A.2d 1, 8 (1990) (citation and quotation marks omitted). Error will be found if the given instruction is not supported by evidence in the case. Rustin v. Smith, 104 Md.App. 676, 680, 657 A.2d 412, 414 (1995).
The proven error must then be prejudicial, not harmless. In Barksdale v. Wilkowsky, we discussed the distinction between a prejudicial and harmless error at length. 419 Md. 649, 20 A.3d 765 (2011). We stated that for an error to be prejudicial, "the complainant must show that prejudice [is] `likely' or `substantial.'" Id. at 662, 20 A.3d at 773 (citation omitted). In other words, the "complainant who has proved error must show more than that prejudice [is] possible; she must show instead that it was probable." Id.
First, CSX objects to the following portion of the trial judge's instruction
Relying on the Fourth Circuit case Stillman v. Norfolk & Western Railway Co., CSX argues that informing a jury about the underlying purpose of enacting a statute is contrary to the law, and thus error. In that case, a railroad employee argued that the trial court had committed error "in refusing to permit his counsel to present an argument to the jury concerning Congress's intent in enacting the FELA." Stillman, 811 F.2d 834, 838 (4th Cir.1987). In rejecting the claim of error, the Fourth Circuit stated: "So long as the jury was properly instructed on the applicable law, we can see no reason why it would be either necessary or appropriate for the jury to hear an argument about Congress's intent in enacting the law." Id. CSX seeks to capitalize on this language to support its stated proposition that "informing the jury about Congress's reason for enacting FELA is improper."
Pitts counters that "this Court and the Court of Special Appeals have held that informing jurors of a statute's purpose is not error." For support, Pitts cites Dillon v. State, 277 Md. 571, 357 A.2d 360 (1976), abrogated in part by Stevenson v. State, 289 Md. 167, 423 A.2d 558 (1980), as stated in Unger v. State, 427 Md. 383, 413, 48 A.3d 242, 260 (2012). In Dillon, while instructing the jury in a criminal case, involving charges of robbery and handgun offenses, the trial judge read from the "Declaration of Policy" for the handgun legislation. Id. at 573-74, 357 A.2d at 363. The Declaration discussed an "alarming increase" in violent crimes involving handguns, a "substantial increase" in people killed due to handguns, the ineffectiveness of previous laws, and the necessity of the current law "to preserve the peace and tranquility of the State." Id. In finding no error, this Court stated that, "the recitation of the `Declaration of Policy' did no more than relate the purposes behind the enactment of the statute upon which [the counts] were based, the preamble was accurately stated, and was an aid and means of enlightenment to the deliberations of the jury as judges of the law." Id. at 585, 357 A.2d at 369 (citations omitted).
In deciding whether the statutory purpose instruction was proper, we observe that neither party's support is overly persuasive. Stillman did not involve a jury instruction. Rather, it involved an attorney who wanted to argue the purpose of FELA to the jury, not a judge instructing the jury on the applicable law. See 811 F.2d at 838. And, in Dillon, the instruction was found not to be erroneous "in view of the provisions in Article XV, Section 5 of the Maryland Constitution, providing that `[i]n the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact,'" and therefore, "any instructions on the law ... are purely advisory and the jury must be so informed." 277 Md. at 580, 357 A.2d at 366 (alterations in original) (citations omitted). But this proposition of law does not apply to civil cases and is no longer the law in criminal cases.
We return, therefore, to our well-established rule that the appropriateness of an instruction must be determined in its full context. Because we believe that CSX's limited quotation of the instruction fails to do this, we sketch out a more complete context below. The trial court instructed the jury as follows:
When read in its complete context, it becomes clear that the purpose for giving the instruction was to impress upon the jury the relative uniqueness of a FELA action in state court. FELA is neither a common law negligence case nor a Workers' Compensation claim — it is a "hybrid," unlike anything the typical juror would have previously encountered. See Miller, 159 Md.App. at 129-31, 858 A.2d at 1028-30. To aid the jury in understanding that a suit under FELA is unique, the Circuit Court sought to explain the statute's history and purpose. In this context, it was not error to give the complained of instruction. See Martin v. Burlington N., Inc., 47 Or.App. 381, 614 P.2d 1203, 1205 (1980) (no error in instructing the jury on the basic purpose of Congress in enacting FELA); see also Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 245 N.E.2d 420, 423 (1969) (no error in instructing the jury as to the purpose of a statute).
Second, CSX objects to the following portion of the trial judge's instruction to the jury stating that violation of a statute was evidence of negligence:
Both parties agree that the giving of this instruction was error, because there was no evidence of a statutory violation. The parties disagree whether such error rose to the level of prejudice.
To show prejudice, CSX argues: "Plaintiff's expert opined at length that, by using large ballast in its rail yard, CSX[] had violated ballast standards promulgated by industry organizations." CSX then argues, that "if the jury credited the expert's testimony, it could well have believed that it was entitled to `consider such violation as evidence of negligence,' an erroneous conclusion that effectively relieved Plaintiff of his burden to prove that CSX[] was negligent."
Pitts responds that "[t]here is no reason to think that the jury incorrectly based its finding of liability on a misconception that CSX violated a statute." In Pitts's view, "CSX's own argument actually demonstrates how harmless the instruction was" because permitting the jurors to consider violation of industry standards as evidence of negligence cannot be prejudicial "when the violation of industry standards is, in fact, solid evidence of negligence."
We agree with the parties that the instruction was error because there was no evidence that a statute was violated. Yet, there was other evidence of negligence that was more than adequate. Duffany, Pitts's expert in railroad engineering and safety, testified that the vast majority of CSX's rail yards violated industry standards, national standards, and CSX's own standards. Maryland law has long recognized that industry standards can be admissible to show the applicable standard of care, and violations of the standard of care are certainly appropriate for the jury to consider when determining the issue of negligence. See C & M Builders, LLC v. Strub, 420 Md. 268, 282, 22 A.3d 867, 875 (2011) ("[I]ndustry standards ... may be admissible as evidence of applicable standards of care."); Jacques v. First Nat'l Bank, 307 Md. 527, 544, 515 A.2d 756, 764 (1986) ("As in any other negligence case, an industry standard, if it exists, may be proven as evidence of the applicable standard of care.").
Moreover, Pitts did not mention any violation of statute in his closing argument to the jury. On balance, we assess it unlikely that the jury was misled by the instruction or that they were distracted by it so as to "speculate about inapplicable legal principles." Barksdale, 419 Md. at 669, 20 A.3d at 777 ("An erroneous instruction may be prejudicial if it is misleading or distracting for the jury, and permits the jury members to speculate about inapplicable legal principles."). We decline to grant CSX a new trial.
Finally, CSX asks for a new trial on the issue of damages based on the trial court's refusal to allow CSX to cross-examine Pitts's expert economist with statistical data regarding the expected worklife of railroad employees. At trial, Pitts called an economics expert, Dr. Bruce Hamilton to testify regarding Pitts's future economic wage loss. Dr. Hamilton's calculations were based on Pitts's assertion that, if he had not been injured, he would have continued to work until he turned 68. CSX attempted to cross-examine Dr. Hamilton as to the American Association of Railroad's ("AAR") worklife expectancy tables for railroad employees, hoping to show that average age of retirement for railroad employees is 60. The trial court limited,
The Circuit Court made its ruling based on an interpretation of the collateral source rule, which bars introduction of evidence pertaining to the compensation the plaintiff "has received from sources unrelated to the tortfeasor," permitting recovery of "full amount of his or her provable damages." Haischer v. CSX Trans., Inc., 381 Md. 119, 132, 848 A.2d 620, 627 (2004) (citation omitted). To decide whether the trial court was overly restrictive, we examine the expert's cross-examination at trial.
Below are the relevant passages of CSX's attempted cross-examination of Dr. Hamilton, the objections, and colloquy with the court:
At the bench, counsel then had the following exchange regarding whether the AAR worklife expectancy tables were an appropriate subject for cross-examination:
After being instructed that he could "touch" upon the statistics, defense counsel continued to advance his argument that the statistics focused exclusively on worklife and had nothing to do with retirement benefits:
The trial judge then clarified that, based on his reading of the Court of Special Appeals precedent, he would only allow defense counsel to "touch" upon the subject:
With permission to "touch" upon the worklife tables, defense counsel continued his cross-examination of Dr. Hamilton:
When counsel again approached the bench, the Circuit Court decided to allow the question and answer:
Returning to open court, the trial judge began by informing the jury of his decision to allow the answer to the previous question:
Defense counsel then pursued cross-examination, but encountered another objection:
Counsel for the defense chose not to rephrase his question, but then moved on to a different area of questioning, returning to the topic of Pitts's retirement age only at the end of his cross-examination: "If you assume that he would have retired at age 60, what would his economic loss be?" Dr. Hamilton's answer was "Zero."
Reviewing the trial transcript, it is clear that the trial court allowed some reference to the AAR worklife expectancy tables, but limited cross-examination of Pitts's expert regarding those tables. The trial court based its decision to allow limited cross-examination of Pitts's expert witness on two Court of Special Appeals' cases, which examined the collateral source rule: Norfolk S. Ry. Corp. v. Tiller, 179 Md.App. 318, 944 A.2d 1272 (2008) and Bickerstaff, 187 Md.App. 187, 978 A.2d 760, and Pitts relies on them here. We will consider these cases, as well as our decision in Haischer v. CSX Transportation, 381 Md. 119, 848 A.2d 620.
We begin with Haischer, the earliest of the three cases. In Haischer, CSX sought to introduce evidence that the employee was receiving disability benefits
In Tiller, the Court of Special Appeals addressed the admissibility of retirement benefits as evidence of when an employee could have been expected to retire if he had not been injured. 179 Md.App. at 321, 944 A.2d at 1274. The intermediate appellate court analyzed both Eichel and Haischer and held that the collateral rule barred evidence of eligibility for retirement benefits. 179 Md.App. at 331-40, 944 A.2d at 1281-86. The court reasoned that "evidence of future retirement or pension benefits is not admissible" in those circumstances because "[t]he probative value is too attenuated to offset the potential misuse that the jury could make of the evidence." Id.
Relying on Tiller, Pitts opposes a new trial on the grounds that whether to refuse to allow CSX to use "AAR statistics" was within the trial court's discretion. Under this discretion, Pitts argues, the trial court properly "concluded that allowing additional cross-examination on the retirement statistics would be akin to ... evidence that railroad employees are eligible to retire and receive retirement benefits at age 60."
But neither Haischer nor Tiller dealt with the issue presented in this case, i.e. worklife expectancy statistics that do not disclose receipt or eligibility for any benefits to the jury. Here, CSX sought to question Dr. Hamilton about statistics published by the AAR presumably in order to rebut Pitts's testimony that he intended to work until age 68. Unlike this case, in Haischer, we were faced with the admissibility of disability benefits proffered by the railroad "to show possible malingering on the part of the plaintiff." 381 Md. at 134, 848 A.2d at 629. The holding of the Court of Special Appeals in Tiller went no further than this. Relying on Haischer, Tiller held that the collateral source rule precluded evidence of future retirement benefits paid by the Railroad Retirement Board to prove when an employee would have retired. Again, Tiller did not exclude statistics bearing on the statistical-based worklife expectancy of a railroad employee.
Indeed, one year later, the Court of Special Appeals rejected such a broad interpretation of Tiller in Bickerstaff, a case with an almost identical factual scenario as we have before us now. Like here, in Bickerstaff, CSX attempted to cross-examine the same expert, Dr. Hamilton, with the same AAR worklife tables, but the employees argued the tables should be
We agree with that distinction, and hold that, although retirement eligibility information in a FELA case is barred by the collateral source rule, statistics about average retirement age for railroad workers is not. These statistics differ from the evidence of disability benefits banned in Haischer and retirement benefits held inadmissible in Tiller.
Furthermore, statistics discussing an individual's projected date of retirement, or worklife expectancy, have been widely held to be relevant when future wage loss is at issue. See Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 23 (2d Cir.1996) ("It was not an abuse of discretion for the district court to admit Dr. Reagles' testimony regarding Boucher's pre and post-injury work-life expectancy ... based on widely accepted work-life tables published by the Department of Labor...."); Weil v. Seltzer, 873 F.2d 1453, 1465 (D.C.Cir.1989) (defendant may "offer the Department of Labor statistics into evidence and request the expert to base his opinion on the work-life expectancy contained in the Department of Labor's table"); Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir.1984) (absent evidence that a person "is likely to live and work a longer, or shorter, period than the average[, worklife] computations should be based on the statistical average"); see also Tempel v. Murphy, 202 Md.App. 1, 19-20, 30 A.3d 992, 1003 (2011) (plaintiff was not required to prove a specific retirement age because the "jury could consider the totality of the evidence, including Mr. Murphy's age, health, employment, financial situation, and general population statistics, i.e., life expectancy and worklife expectancy, to determine the amount of lost support"); Great Coastal Express, Inc. v. Schruefer, 34 Md.App. 706, 729, 369 A.2d 118, 131 (1977) ("The court did not abuse its discretion in hearing the expert," whose testimony considered "such factors as the work life expectancy of the decedent and reduction of future earnings to present worth.").
Although the collateral source rule bars evidence of disability and retirement benefits, a defendant railroad should not be defenseless against the plaintiff's "1-2 combo" — self-serving testimony about his retirement plans and expert projections about damages based on that testimony. Moreover, it would be unfair to allow the plaintiff to clothe his own prediction about his retirement date with the protective folds of the economist's projections about damages, while denying the defendant the right to use cross-examination to cast legitimate doubt on the assumption made by that economist that the claimant would retire at age 68.
Applying the conclusions from the precedents discussed above, we analyze the interplay of the cross-examination. The colloquy between the trial court and counsel reveals that the trial court, although initially refusing CSX the opportunity to examine Pitts's expert regarding worklife expectancy tables, on reflection, was willing to allow CSX to "touch" upon the subject. The trial court walked a careful line. On the one hand, the trial court allowed CSX to ask, "And we're [sic] relying upon age 60, as is indicated in that letter, be consistent with any statistical analysis of which you're aware?" The answer was "yes." On the other hand, the trial court sustained objections, without more discussion, to two of defense counsel's questions: "And Dr. Hamilton, what does that statistical analysis tell us as the likely retirement age for Mr. Pitts?" and "Are you aware of any information that's been indicated that the 60 age indicated in the letter would be a more appropriate age to use in your calculation?"
Following the court's ruling on the last objection, defense counsel moved the focus of his cross-examination away from the AAR worklife tables and onto other assumptions underlying Dr. Hamilton's calculations. Moving the inquiry away from the AAR statistics was either strategic or based on counsel's assumption that the trial court would not allow any more questions about the statistics pertaining to retirement. Yet, a close examination of the colloquy reveals that the latter assumption would not have been justified.
The first question — "And Dr. Hamilton, what does that statistical analysis tell us as the likely retirement age for Mr. Pitts?" — was objectionable because it assumes facts not in evidence. As Judge Joseph Murphy, writing for this Court, has explained: such a "question was objectionable [because] it assumed a fact not in evidence. An argumentative question is one which incorporates by assumption a fact otherwise not in evidence." Johnson v. State, 408 Md. 204, 224, 969 A.2d 262, 273 (2009) (citation and quotation marks omitted); see also Holy Trinity Russian Indep. Orthodox Church v. State Roads Comm'n, 249 Md. 406, 414, 240 A.2d 255, 259 (1968) (not error for trial judge to exclude cross-examination question to expert without proper foundation or proffer); Commonwealth Bank of Balt. v. Goodman, 128 Md. 452, 464, 97 A. 1005, 1010 (1916) ("Questions asked an expert on cross-examination ought to be based upon facts proved and ought not to assume facts of which there is no evidence."); Simpson v. State, 121 Md.App. 263, 288, 708 A.2d 1126, 1138 (1998) ("Furthermore, questions that assume facts not in evidence are objectionable.") (citation omitted); 6 Lynn McLain, Maryland Practice: Maryland Evidence State & Federal § 611:5 (2d ed.2001) (explaining that questions on cross-examination which assume facts not in evidence are objectionable).
In this case, the question posed by defense counsel clearly assumes that the statistical analysis is in evidence, which it was not. Without laying a proper foundation, the defense counsel sought to have Dr. Hamilton discuss the substance of some statistical analysis with which the jury was not familiar. The only foundation laid by CSX was that at some point in time, Dr. Hamilton had "seen a statistical analysis of worklife expectancy for railroad employees." The jury knew nothing else about the statistical analysis to which Dr. Hamilton was referring. It is not even clear that Dr. Hamilton and defense counsel were referring to the same statistical analysis. Indeed, right before this question, the defense counsel had shown Dr. Hamilton a statistical study of worklife expectancy for railroad employees, marked as Defendant's Exhibit 33, and Dr. Hamilton denied ever seeing this particular study. Under such circumstances, this question had the potential to mislead the jury and was objectionable for assuming facts not in evidence.
The second question — "Are you aware of any information that's been indicated that the 60 age indicated in the letter would be a more appropriate age to use in your calculation?" — was objectionable because it was likely to elicit an answer implicating the collateral source rule. Given the expansive nature of this question — asking Dr. Hamilton for "any information" — it was possible that Dr. Hamilton would have included Pitts's eligibility for retirement benefits in his answer. Such evidence, however, is inadmissible as violating the collateral source rule, and therefore, sustaining the objection was proper. See Haischer, 381 Md. at 134, 848 A.2d at 629; Tiller, 179 Md.App. at 340, 944 A.2d at 1286.
We hold that Pitts's FELA claim, alleging negligent use of ballast, was not precluded by FRSA because CSX failed to prove that the ballast complained of performed a track-support function. Additionally, the trial court did not commit prejudicial error by instructing the jury about the purpose behind FELA's enactment and explaining that violation of a statute was evidence of negligence. And finally, the trial court did not err in its rulings regarding the use of the AAR worklife expectancy tables on cross-examination.
When examined in its complete context, we do not agree with CSX's reading of the intermediate appellate court's opinion. The Court of Special Appeals used the terms "rail yards" and "walkways" in conjunction with each other to represent areas of ballast not performing a track-support function. This is made clear by the court's explicit holding that 49 C.F.R. § 213.103 does preclude a claim involving ballast performing a track-support function. Thus, CSX's claims in this regard are misplaced.
