CSX Transportation, Inc. v. Bickerstaff

WOODWARD, J. This case involves the consolidated actions of nine railroad employees—Richard Bickerstaff, Eddie Brown, Anthony Davidson, Michael Fedorchak, John Hartman, Robert Hob-good, 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? ²⁰¹ 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, ²⁰² 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. ²⁰³ 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 ²⁰⁴ 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 osteoarthritis 4 to one or both knees and some claimed injury to the menisci 5 ²⁰⁵ 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.

E. The Verdict On March 28, 2007, the jury returned a verdict against appellant, determining damages of a total of $19,300,000. Because FELA is a comparative negligence statute, the jury was called upon to allocate appellant’s negligence and appellees’ contributory negligence. The jury made the following awards: The total amount of damages for Bickerstaff was $900,000, with 70 percent fault assigned to appellant and 30 percent to Bickerstaff. Damages awarded to Bickerstaff were $630,000.

The total amount of damages for Brown was $2,500,000, with 70 percent fault assigned to appellant and 30 percent to Brown. Damages awarded to Brown were $1,750,000. ²⁰⁶ The total amount of damages for Davidson was $2,300,000, with 80 percent fault assigned to appellant and 20 percent to Davidson. Damages awarded to Davidson were $1,840,000. The total amount of damages for Fedorchak was $1,000,000, with 75 percent fault assigned to appellant and 25 percent to Fedorchak.

Damages awarded to Fedorchak were $750,000. The total amount of damages for Hartman was $850,000, ■with 90 percent fault assigned to appellant and 10 percent to Hartman. Damages awarded to Hartman were $765,000. The total amount of damages for Hobgood was $750,000, with 60 percent fault assigned to appellant and 40 percent to Hobgood.

Damages awarded to Hobgood were $450,000. The total amount of damages for Short was $3,000,000, with 90 percent fault assigned to appellant and 10 percent to Short. Damages awarded to Short were $2,700,000. The total amount of damages for Young was $6,000,000, with 80 percent fault assigned to appellant and 20 percent to Young.

Damages awarded to Young were $4,800,000. The total amount of damages for Zientek was $2,000,000, with 70 percent fault assigned to appellant and 30 percent to Zientek. Damages awarded to Zientek were $1,400,000. We will set forth additional facts and proceedings below as necessary to discuss the questions presented.

DISCUSSION Preliminarily, we acknowledge the unique specimen of case before us. Speaking for this Court, Judge Charles E. Moylan, Jr. recently discussed the special context of a FELA action: This is no ordinary tort case, although it has some characteristics thereof. It is a FELA case, and that designation places it in a special legal province all of its own with special rules of its own. Although FELA has been on the books for a full century, since 1908, the Maryland case law dealing with it remains skimpy.

In CSX v. Miller, 159 Md.App. 123, 128-46 , 858 A.2d 1025 (2004), we examined in depth its special characteristics. And see Haischer v. CSX, ²⁰⁷ 381 Md. 119 , 848 A.2d 620 (2004); Bittinger v. CSX, 176 Md.App. 262 , 932 A.2d 1243 (2007). In CSX v. Miller, 159 Md.App. at 129 , 858 A.2d 1025 , we commented on one unusual feature of a FELA action: The FELA law is a hybrid. It hovers ambivalently between workers’ compensation law and the common law tort of negligence.

It is neither, but it partakes of characteristics of both. In Kernan v. American Dredging Co., 355 U.S. 426 , 431— 32, 78 S.Ct. 394 , 2 L.Ed.2d 382 (1958), Justice Brennan recounted the provenance of FELA as a deliberate policy recognition that the railroad industry itself was better able to shoulder the cost of industrial injuries and deaths than were the industry’s injured workers or their families. [l]t came to be recognized that, whatever the rights and duties among persons generally, the industrial employer had a special responsibility toward his workers, who were daily exposed to the risks of the business and who were largely helpless to provide adequately for their own safety. Therefore, as industry and commerce became sufficiently strong to bear the burden, the law, the reflection of an evolving public policy, came to favor compensation of employees and their dependents for the losses occasioned by the inevitable deaths and injuries of industrial employment, thus shifting to industry the “human overhead” of doing business. For most industries this change has been embodied in Workmen’s Compensation Acts.

In the railroad and shipping industries, however, the FELA and Jones Act provide the framework for determining liability for industrial accidents. (Emphasis supplied). In Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 542 , 114 S.Ct. 2396 , 129 L.Ed.2d 427 (1994), the Supreme Court more recently reaffirmed that energizing purpose of FELA: Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers ²⁰⁸ every year, Congress crafted a federal remedy that shifted part of the “ ‘human overhead’ ” of doing business from employee to their employers. From FELA’s history and its animating philosophy, this Court concluded in CSX v. Miller: Thus, although the FELA is not a workers’ compensation act, the social forces that produced it and the generating spirit that drives it resonate with the language and philosophy of workers’ compensation principles. 159 Md.App. at 131 , 858 A.2d 1025 (emphasis supplied).

Norfolk S. Ry. Corp. v. Tiller, 179 Md.App. 318, 322-24 , 944 A.2d 1272 , cert. denied, 405 Md. 292 , 950 A.2d 829 (2008) (emphasis in original). Additionally in Tiller , we set forth the “employee-friendly standard of review” applied in FELA cases. Id. at 324 , 944 A.2d 1272 .

A FELA case, we recognized, “calls for an interpretive approach that is significantly different from that which ordinarily prevails in a suit for common law negligence.” Id. Because FELA is “a broad remedial statute,” courts have accorded “a standard of liberal construction in order to accomplish Congress’ objects.” Id. at 325 , 944 A.2d 1272 (quotations, alterations, and emphasis omitted). In discussing the standard of review applied in FELA cases in CSX v. Miller, 159 Md.App. 123, 145 , 858 A.2d 1025 (2004), cert. denied, 384 Md. 581 , 865 A.2d 589 (2005), this Court observed that “it is not hard to figure out who wins the ties and who gets the benefit of the close calls.” I. Courtroom Demonstration During the cross-examination of appellees’ railroad engineering expert, Raymond Duffany, appellant attempted to demonstrate the gradation process of ballast using mainline ballast, a baseball, and a softball with square-shaped wooden screens. Appellant intended to pass the ballast, baseball, and softball 6 through the screens to demonstrate the process by ²⁰⁹ which ballast was graded in different sizes.

Appellees objected to the demonstration, arguing that it was not substantially similar to replicate the crushing and processing of ballast in a rock quarry. The trial judge permitted appellant to demonstrate the grading process using the ballast and the screens, but refused to allow appellant to use the baseball or softball in connection with the screening process. Upon appellees’ continuing objection, the court advised the parties that cross-examination may be used in response to the use of demonstrative evidence. During the redirect examination of Duffany, appellees’ counsel conducted a demonstration during which he put samples of mainline ballast on the courtroom floor and stepped on them.

Appellant’s counsel objected and the following bench conference ensued: [APPELLANT’S COUNSEL]: I would like to cite Andreas [sic] versus State, 372 Maryland 1 , 811 A.2d 282 , that that demonstration definitely is not substantially similar to the real-life reality of walking in a railroad yard. THE COURT: Well, the problem I have here is that everybody used those rocks. [APPELLANT’S COUNSEL]: I didn’t walk on them, though. [APPELLEES’ COUNSEL]: You certainly handled them and looked at them. THE COURT: I think you have to take a deep breath and deal with your recross. I may agree with you.

At the moment, I am overruling. The court overruled appellant’s objection. At the conclusion of redirect examination, appellant’s counsel did not conduct any recross examination of Duffany regarding opposing counsel’s demonstration. Instead, appellant’s counsel moved for a mistrial, which the court denied: [APPELLANT’S COUNSEL]: To my astonishment, Your Honor, in his redirect of ...

Duffany, [appellees’ counsel] demonstrated large ballast, put it on the carpet in this courtroom and proceeded to walk on it, which flew in the ²¹⁰ face of every case he cited to the Court in his attempts not to allow the screens. THE COURT: He did put his foot on it. I thought he was about to fall, to be honest, so I looked the other way at that point. [APPELLANT’S COUNSEL]: The jury did not—for the record, I wanted to point out the alternate jurors in the second row all stood up, and it was—it was sort of a— THE COURT: I don’t mean to say that I was not aware of what was going on. I just said I turned my head.

What I want the record to reflect is that, under the circumstances, that the Court recognizes the concern. [Appellees’ counsel] raised issues as to the use of the rocks. My problem is that the same rocks in question [were], in fact, used by [appellant’s counsel] as to be demonstrative of that which would be in the area. [APPELLEES’ COUNSEL]: Yes, Your Honor, excuse me. He laid an appropriate foundation for that. And he, in fact, elicited from [appellees’] own expert witness the testimony that it was a perfectly fair depiction of the screening. * * * [APPELLANT’S COUNSEL]: ....

For the record, I think it was highly prejudicial of [appellees’ counsel] to step on those rocks in the presence of the jury because that does not in any way, shape or form replicate the type of walking on rocks that trainmen and car men do in a yard setting. The rocks, were only two or three or four. They were loose. They were on a carpet in a courtroom.

As Your Honor is well aware, when evidence goes back to the jury, you instruct the jury not to undertake demonstrations of that type or experiments of that type. THE COURT: Well, that is not generally an instruction, but it may be requested. ²¹¹ [APPELLANT’S COUNSEL]: Well it is often requested, Your Honor. THE COURT: Sure. [APPELLANT’S COUNSEL]: I think it was highly prejudicial and highly inaccurate and flew in the face of all the case law that [appellees’ counsel] had just brought to the Court’s attention not 30 minutes earlier. [APPELLEES’ COUNSEL]: Your Honor, we approached the bench with respect to the objection that [appellant’s counsel] had raised. I walked back and laid the rocks on the corner, walked away, and everybody said the Court had overruled the objection.

I then turned around and proceeded to do what I had attempted to do initially, assuming that the Court had overruled the objection that [appellant’s counsel] had stated because, look, they are the ones that opened the rocks up. They are the ones that brought the rocks into the courtroom, not me. They are the ones that stuck them through there. They are the ones that established they were mainline ballast.

What they want to do is, every time, they want to handcuff [appellees]. They don’t want us to put any evidence at all on. THE COURT: ... [0]n this Motion, I will say, [appellees’ counsel], you came to the edge. I will say, [appellant’s counsel], I don’t think you crossed the edge.

I am concerned that we do not go too far into this. [Appellees’ counsel], you are on notice. But under the circumstances, the Court does believe that it did open itself up for that which did occur. ²¹² The motion for mistrial is noted for the record. The record is made as to your objections for the reasons thereof. [APPELLANT’S COUNSEL]: Thank you. THE COURT: The motion for mistrial is denied.

Appellant argues that the court erred in allowing “a visually arresting but highly misleading ‘demonstration’ of walking on large ballast conducted ... by [appellees’] counsel.” According to appellant, appellees’ counsel’s “spectacle” lacked the requisite foundation for the admission of the demonstrative evidence, i.e. “that the evidence fairly and accurately depicts what it purports to depict.” Further, appellant argues that appellees’ counsel “did not have ‘the required knowledge’ of the subject to make a showing of similarity,” and “[b]ecause counsel’s performance was not ‘substantially similar to the events [at issue], the demonstration was irrelevant as a matter of law.’ ” According to appellant, the in-court ballast rock demonstration was highly prejudicial to appellant’s case, “infecting] the entire debate over the effect that walking on large ballast has on the human body.” Appellees respond that appellant’s argument “must fail” because it provides no theory of how the court abused its discretion. 7 Additionally, appellees contend that appellant made no attempt to mitigate “any perceived prejudice” from the demonstration by challenging it on recross-examination of Duffany or by requesting a curative instruction, and therefore, ²¹³ appellant “should not be heard now to complain that the trial court erred.” 8 Lastly, appellees argue that appellant “cannot claim prejudice since its own evidence,” namely a video of a graduate student walking on mainline ballast in a rail yard in which the student rolled his foot and almost fell, “confirmed the nature of walking on ballast.” Appellees point out that appellant’s own expert stated that foot rolling and nearly falling could occur 600 times per day. Appellees urge that “[appellant’s] own evidence was far more damaging than anything counsel for [appellees] did in the [cjourtroom.” “ ‘[T]he decision to admit demonstrative evidence rests with the sound discretion of the trial court.’ ” Andrews v. State, 372 Md. 1, 20 , 811 A.2d 282 (2002) (quoting Ware v. State, 348 Md. 19, 65 , 702 A.2d 699 (1997)). In Andrews , the Court of Appeals reiterated the “proper procedure for admission of demonstrative evidence:” “Demonstrative evidence has been described as physical evidence that ‘helps the jurors understand the testimony, but it is otherwise unrelated to the case.’ ” Demonstrative evidence is generally offered for clarification or illustration of the witness’s testimony and it need not be original or authentic. “Instead, the theory justifying admission of these exhibits requires only that the item be sufficiently explanatory or illustrative of relevant testimony to be of potential help to the trier of fact.” “Professor McLain discusses the foundation requirements for demonstrative evidence: “A foundation simply must be laid through the witness’s testimony that the evidence fairly and accurately depicts what it purports to depict (a subject as to which the ²¹⁴ witness has the required knowledge) and that it will be helpful to the witness in explaining his or her testimony. It is then admissible in the trial court’s discretion.... ” ❖ 4: * “The court must weigh the demonstrative evidence’s probative value against the possibility of unfair prejudice or confusion.” 372 Md. at 20-21 , 811 A.2d 282 (quoting Ware, 348 Md. at 65 , 702 A.2d 699 ) (citations omitted).

The Andrews Court further opined: In-court demonstrations are permitted with the court’s permission, if the pertinent conditions are substantially the same as at the time in question, and if the procedure will not be unduly time-consuming, confusing or likely to arouse unfairly emotional reactions in the jury. This Court has applied these general principles to demonstrations involving objects and required that the party seeking to utilize the demonstration make a preliminary showing that what the demonstration is expected to establish is “substantially similar” to the facts and circumstances at issue. We have further stated that “demonstrative evidence need not be original in order to be admissible, [however,] there must be ‘ample evidence ’ that the item offered as demonstrative evidence is substantially similar to the item that actually played a part in the events at issue.” As we see it, the “substantially similar” requirement gives effect to the initial relevance determination required of all evidence by [Maryland] Rule 5-402. Without the substantially similar requirement serving as a gatekeeper to the admission of demonstrative evidence, the net effect would be the admission of all demonstrative evidence, whether relevant or irrelevant.

Id. at 21-22 , 811 A.2d 282 (citations omitted) (emphasis in original). ²¹⁵ Appellant relies on the facts of Andreivs, analogizing the impropriety of the demonstration in that case to the demonstration by appellees’ counsel in the instant case. In Andrews , the petitioner was alleged to have caused the death of his infant daughter by “Shaken Baby Syndrome.” 372 Md. at 3-4 , 811 A.2d 282 . On appeal of his conviction for reckless endangerment, 9 the petitioner argued that the circuit court erred by permitting, in front of the jury, a demonstration of the amount of force necessary to cause injury associated with Shaken Baby Syndrome by using a doll dissimilar to the infant alleged to have been shaken. Id. at 4 , 811 A.2d 282 .

The Court of Appeals in Andrews held that the trial court erred in permitting the demonstration “without requiring the State to establish the substantial similarity between the in-court demonstration and the event at issue.” Id. at 27 , 811 A.2d 282 . The Court observed that “the differences between the doll and the victim were not insignificant, but, rather, were substantially material to the determination of the amount of force necessary to constitute Shaken Baby Syndrome.” Id. at 25 , 811 A.2d 282 . By allowing the State to proceed with the demonstration without satisfying its burden of establishing substantial similarity, the Court explained that “[t]he net effect ... was to weaken the petitioner’s ability to challenge the demonstration on cross-examination.” Id. at 25-26 , 811 A.2d 282 . Without the proper foundation of similarity, the Court concluded that the in-court demonstration may have mislead the jury in their deliberation, and thereby prejudiced the petitioner.

Id. at 26-27 , 811 A.2d 282 . Even considering the cautionary instruction given to the jury “acknowledging that the demonstration was not an ‘accurate reenactment’ and only an opinion,” the Court was not persuaded that such instruction cured “any possible prejudice” the petitioner may have suffered. Id. at 27 , 811 A.2d 282 . ²¹⁶ In our view, the trial judge in the instant case erred in permitting the demonstration without requiring appellees’ counsel to show substantial similarity between his in-court ballast demonstration and the reality of mainline ballast in a rail yard. See id. at 26-27 , 811 A.2d 282 .

Appellees failed to show any evidence—let alone “ample evidence”—of the substantial similarity between the in-court demonstration of walking on large ballast and walking on ballast in a rail yard. See id. Moreover, the differences between walking on a small number of loose mainline ballast on the courtroom floor and the mainline ballast in a rail yard are not insignificant. See id. at 25 , 811 A.2d 282 .

As appellant explained in its brief: [T]he fact that counsel was stepping on genuine large-ballast samples is irrelevant. By placing individual rocks on the smooth, hard courtroom floor, [10] [appellees’] counsel destroyed any similarity between his demonstration and [appellees’] work conditions. In the rail yard, large ballast is stabilized from below and on the sides by the dirt in which it is embedded or by the lower layers of ballast into which it has settled, or “interlock[ed].” On the courtroom floor, there was nothing to prevent the individual rocks from slipping or rolling under counsel’s feet.... Because appellees failed to lay the proper foundation of substantial similarity, we conclude, as did the Court in Andrews , that the demonstration was irrelevant as a matter of law.

Appellant next argues that “the only remedy for [the court’s] error is a new trial.” It is well established, however, that appellate courts “will not reverse a lower court judgment if the error is harmless.” Flores v. Bell, 398 Md. 27, 33 , 919 A.2d 716 (2007). Appellant has the burden on appeal not only to show error but prejudice as well. Id. On the showing of prejudice, the Court of Appeals has observed: “Precise standards for determining prejudice have not been established and depend upon the facts of each individual case.

Prejudice can be demonstrated by showing that the error was likely to have ²¹⁷ affected the verdict below; an error that does not affect the outcome of the case is harmless error.” Id. (citations omitted). Andrews is not instructive on the question of error, because in Andrews the Court of Appeals was reviewing the trial court’s error in the context of a criminal case. On review of error in a criminal trial, error is harmless only when a reviewing court “ ‘is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict.’ ” Hoerauf v. State, 178 Md.App. 292, 327 , 941 A.2d 1161 (2008) (quoting State v. Logan, 394 Md. 378, 388 , 906 A.2d 374 (2006)) (emphasis added).

To the contrary, in civil cases “[prejudice will be found if a showing is made that the error was likely to have affected the verdict below. It is not the possibility, but the probability, of prejudice which is the object of the appellate inquiry. Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice. Substantial prejudice must be shown.

To justify the reversal, an error below must have been ... both manifestly wrong and substantially injurious.” Flores, 398 Md. at 34 , 919 A.2d 716 (quoting Crane v. Dunn, 382 Md. 83, 91-92 , 854 A.2d 1180 (2004) (internal quotations omitted)) (emphasis added). Therefore, whereas reversal in Andretvs was required unless there was an absence of “any possible prejttdice,” 372 Md. at 27 , 811 A.2d 282 (emphasis added), we need not reverse in the instant case unless the court’s error caused “substantial prejudice. ” Flores, 398 Md. at 34 , 919 A.2d 716 (emphasis added). In the case sub judice, we are not persuaded that the in-court demonstration substantially prejudiced appellant. We disagree with appellant’s assertion that appellees’ counsel’s demonstration was the “most memorable” and “most misleading” piece of evidence on the effect that walking on large ballast has on the human body.

To the contrary, appellant introduced evidence that we regard as more prejudicial to its case. During the direct examination of its ergonom ²¹⁸ ic expert, Dr. Stephen Wiker, appellant played a videotape of a graduate student wearing work boots and walking on mainline ballast in one of appellant’s Baltimore rail yards. 11 As the student was walking on the ballast, he took 21 steps, rolled his foot, and tripped on the ballast. On cross-examination, appellees’ counsel replayed the video and proceeded to question Dr. Wiker as follows: [APPELLEES’ COUNSEL]: You counted 21 steps when he stepped on the large rock there and you saw his foot roll? [DR. WIKER]: Yes.

(Whereas, counsel creating chart.) [APPELLEES’ COUNSEL]: Assuming that for about every 21 steps on the big ballast we see—we get what you saw and assuming they are taking 13,500 steps a day, let me and you do a calculation here. Can you do the math on that? [DR. WIKER]: That would be about six— [APPELLEES’ COUNSEL]: Hundred. 600, right? [DR. WIKER]: Ballpark that. [APPELLEES’ COUNSEL]: 600 a day.

Now, I want to look at these folks sitting right here today and you tell them, if you turn your foot like that 600 times a day, you don’t think it is going to cause them some problems with their knees? [DR. WIKER]: Well, I am not saying that. Appellant points out that on redirect examination Dr. Wiker testified that the graduate student tripped because “he stepped on a rock when he was looking at [Dr. Wiker] to get instructions to stop so he wasn’t looking down when he ²¹⁹ stepped on it.” 12 No testimony or other evidence, however, was introduced to corroborate Dr. Wiker’s assertion that the student was looking at him for instructions and not looking down. Therefore, we regard the video demonstration, viewed twice by the jury, and the testimony of Dr. Wiker on cross-examination as overshadowing any prejudice that may have resulted from the in-court demonstration of appellees’ counsel.

We also note that, despite the trial court’s recommendation, appellant never questioned Duffany about the in-court demonstration on recross examination. Additionally, appellant never requested a curative instruction. In the absence of any effort on behalf of appellant at trial to assuage any prejudice resulting from the in-court demonstration by appellees’ counsel, we do not conclude that appellant’s claim of error on appeal substantially prejudiced appellant. Accordingly, the trial court did not commit prejudicial error by permitting appellee’s counsel to conduct a demonstration using mainline ballast.

II

Assumption of Risk Jury Instruction A. FELA & Assumption of Risk: Abrogation of the Doctrine In 1906, Congress passed FELA “in part to eliminate banders common law courts erected to protect railroad companies and other common carriers from liability for their employees’ workplace injuries.” Fashauer v. N.J. Transit Rail Operations, Inc., 57 F.3d 1269, 1274 (3rd Cir.1995). For one, FELA “substituted comparative negligence for the strict rule of contributory negligence.” Id. (internal quotations omitted). Accordingly, unlike under Maryland law, a plaintiff’s negligence does not bar a claim for damages under FELA.

See 45 ²²⁰ U.S.C. § 53 (“[T]he fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee[.]”). Additionally, following widespread criticism of the retention of assumption of risk as a complete defense to an employer’s liability, “Congress amended FELA in 1939 to eliminate the defense in cases where the injury ‘resulted in whole or in part from the negligence of any of the officers, agents, or employees’ of the employer.” Fashauer, 57 F.3d at 1274 (quoting 45 U.S.C. § 54 ). Thereafter, the Supreme Court announced that “every vestige of the doctrine of assumption of risk was obliterated from [FELA] by the 1939 Amendment,” directing that FELA cases are “to be handled as though no doctrine of assumption of risk had ever existed.” Tiller v. Atlantic Coast Line R.R Co., 318 U.S. 54, 58, 64 , 63 S.Ct. 444 , 87 L.Ed. 610 (1943). B. Instruction on Assumption of Risk In the case sub judice, the court charged the jury on assumption of risk over appellant’s objection.

The court instructed the jury: [L]adies and gentlemen of the jury, [ ][i]n any action brought against [appellant] for injury to recover damages for injuries to the said plaintiff or employee, that employee shall not be held to have assumed the risk of his employment in any case where such injury resulted in whole or in part from the negligence of any officer or supervisor of the said railroad or carrier. And no employee shall be held to have assumed the risk of his employment in any case where the violation by such railroad of any statute enacted for the safety of employees contributed to the injury or death of an employee. Appellant argues that the court erred in propounding a jury instruction on the doctrine of assumption of risk when appel ²²¹ lant “did not plead or argue that it could avoid liability because [ appellees] had assumed the risks of their employment.” Nor, appellant contends, did appellees present evidence to “create an undue risk that the jury would reduce their recoveries on the impermissible theory” of assumption of risk. Appellees respond that “the jury was correctly instructed that assumption of risk is not a defense in a FELA case.” Appellees contend that appellant “elicited significant testimony ... to support the giving of an instruction on assumption of the risk;” e.g., making choices to work at a particular rail yard, to mount and dismount moving equipment at a particular speed, to take on a job involving more walking, and to retire.

Furthermore, appellees assert that appellant’s closing argument emphasized this evidence, thereby “improperly infer[ring] assumption of the risk in the absence of an instruction.” Maryland Rule 4-325(c) provides: The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. The Court of Appeals has interpreted Rule 4-325(c) as requiring] the trial court to give a requested instruction under the following circumstances: (1) the requested instruction is a correct statement of the law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given.

Thompson v. State, 393 Md. 291, 302 , 901 A.2d 208 (2006) (internal quotation omitted) (alteration in original). At issue before us is the second circumstance— whether the court’s jury instruction on assumption of risk was ²²² applicable under the facts of the instant case. 13 Rule 4-325 requires “ ‘that a requested instruction be given only when there is evidence in the record to support it.’ ” Flores v. State, 120 Md.App. 171, 193 , 706 A.2d 628 (1998) (quoting Hof v. State, 337 Md. 581, 612 , 655 A.2d 370 (1995)). In other words, a jury instruction is warranted where the charge requested was “generated by the evidence adduced.” Flores, 120 Md.App. at 193 , 706 A.2d 628 (internal quotation omitted). “Whether the evidence is sufficient to generate the requested instruction in the first instance is a question of law for the judge.” Fleming v. State, 373 Md. 426, 433 , 818 A.2d 1117 (2003). C. The Doctrine’s Place in FELA Actions In its initial brief, appellant gives the impression that an assumption of risk instruction is never appropriate in a FELA action, emphasizing that an instruction on the doctrine serves only to confuse the jury because assumption of risk plays no role in FELA actions.

Appellant’s attempt to equate the abolition of assumption of risk as a defense in FELA actions to a judicial mandate to refuse to instruct the jury on the doctrine in such cases misstates the law. An instruction that directs the jury not to consider assumption of risk as a defense is not unusual. When evidence is adduced at trial implicating the doctrine of assumption of risk, the trial court is charged with adequately distinguishing conduct constituting contributory negligence from conduct covered by the doctrine of assumption of risk. See Jenkins v. Union Pac.

R.R. Co., 22 F.3d 206, 212 (9th Cir.1994) (agreeing with other circuit courts of appeal that, when the evidence so requires, an instruction on assumption of risk “prevent[s] the jury from considering ²²³ the forbidden defense of assumption of the risk while allowing it to make factual findings on the issue of comparative negligence” (alteration in original) (internal quotation omitted)). In fact, reviewing courts have found reversible error in FELA cases involving a trial court’s refusal to instruct the jury on assumption of risk. See, e.g., Koshorek v. Pa. R.R. Co., 318 F.2d 364, 369-70 (3rd Cir.1963); Hamrock v. Consol.

Rail Corp., 151 Ill.App.3d 55 , 103 Ill.Dec. 736 , 501 N.E.2d 1274, 1280 (1986), appeal denied by, 113 Ill.2d 574 , 106 Ill.Dec. 47 , 505 N.E.2d 353 (1987). Appellate courts have also upheld a trial court’s decision to propound a jury instruction on assumption of risk. See, e.g., Atl. Coast Line R. Co. v. Burkett, 192 F.2d 941, 943 (5th Cir.1951); Vandaveer v. Norfolk & W. Ry.

Co., 78 Ill.App.2d 186 , 222 N.E.2d 897, 906 (1966); Mo. Pac. R.R. Co. v. Ballard, 250 Ark. 1094 , 469 S.W.2d 72, 74 (1971); Curtis v. Atchison, T. & S.F. Ry. Co., 363 Mo. 779 , 253 S.W.2d 789, 794 (Mo.1952); Ford v. Louisville & Nashville R.R. Co., 355 Mo. 362 , 196 S.W.2d 163, 169 (1946).

D. Contributory Negligence v. Assumption of Risk Because contributory negligence reduces a plaintiffs damages under FELA while assumption of risk does not, “courts have the delicate job of separating out evidence on one theory from evidence on the other.” Fashauer, 57 F.3d at 1274 . When the doctrine of assumption of risk is inapplicable under the facts of a given case, “courts should spare juries intricate descriptions of opaque legal doctrines;” however, when “the facts of the case present a danger of jury confusion on the issue, an assumption of risk charge should be given.” Id. at 1275 . The United States Court of Appeals for the Third Circuit explained: [W]hen the evidence adduced at trial presents a danger that the jury might reduce a plaintiffs recovery based on the impermissible theory of assumption of risk, then the trial judge should instruct the jury on how that doctrine differs ²²⁴ from contributory negligence. But when the evidence presents no such danger, then an adequate charge on contributory and comparative negligence suffices.

Of course, the most difficult part of the inquiry is determining when the facts merit an assumption of the risk instruction. Id. “Although there is some overlap between assumption of risk and contributory negligence, generally the two defenses are not interchangeable.” Taylor v. Burlington N.R.R. Co., 787 F.2d 1309, 1316 (9th Cir.1986). At common law an employee’s voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties constitutes an assumption of risk. Contributory negligence, in contrast, is a careless act or omission on the plaintiffs part tending to add new dangers to conditions that the employer negligently created or permitted to exist.

Fashauer, 57 F.3d at 1275 (quoting Taylor, 787 F.2d at 1316 ). A finding of contributory negligence on the basis of an employee’s “knowledge that a dangerous condition in his line of duty existed and his working in that line of duty,” nonetheless, is actually “assumption of risk masquerading under another name.” Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257-58 (2d Cir.1973), cert. denied, 414 U.S. 822 , 94 S.Ct. 122 , 38 L.Ed.2d 55 (1973). In other words, evidence of a plaintiffs “knowledgeable acceptance of a dangerous condition” implicates the defense of assumption of the risk, not contributory negligence. Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682-83 (10th Cir.1981); see also Koshorek, 318 F.2d at 367 (“[Ajssumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.”).

Noting that the concept of assumption of risk “often is used as an umbrella term to describe a number of discrete and dissimilar concepts” in Fashauer , the United States Court of ²²⁵ Appeals for the Third Circuit discussed “what theory of assumption of risk Congress sought to prohibit when it barred the defense under the FELA.” Fashauer, 57 F.3d at 1275-76 . The Court elucidated: “In our view, the history behind the FELA and the Supreme Court’s pronouncements in pre-and post-FELA cases makes clear that assumption of risk in the employment context refers to implied consent,” i.e., an employee’s implied consent to assume the risks entailed in employment. Id. at 1279 . The Court held: A plaintiff’s recovery under the FELA never can be reduced on the basis that he or she implicitly consented to the risk by accepting employment with the railroad or by performing a task in the manner which the employer directed.

This is true regardless of whether the plaintiff acted reasonably or unreasonably. Thus, even when a jury examining a plaintiffs position objectively would conclude that he acted unreasonably in accepting employment, or performing a task at all, such unreasonable actions for FELA purposes are characterized as assumption of risk rather than contributory negligence. Id. at 1280 . In so holding, the Court further stated: [I]f no evidence of impermissible assumption of risk has reached the jury, a correct instruction on contributory negligence will do.

However, if, either because of evidence introduced at trial or because of statements made by counsel in opening or closing arguments, there is a risk that the implied consent theory of assumption of the risk seeped its way into the case, the jury should be instructed that it may not find contributory negligence on the part of the plaintiff ... simply because he acceded to the request or direction of the responsible representatives of his employer that he work at a dangerous job, or in a dangerous place, or under unsafe conditions. Id. (internal quotation omitted) (emphasis added). In the case sub judice, sufficient evidence was adduced at trial to support the giving of a jury instruction on ²²⁶ assumption of risk.

In reaching this conclusion, we focus our attention on the evidence appellant presented at trial regarding appellees’ choice of work or work site. Appellant elicited testimony from appellees regarding their choice to work in the rail yards with mainline ballast. For instance, appellant’s counsel questioned Young as follows: [APPELLANT’S COUNSEL:] To your knowledge, [ ] Young, there are a number of people who have worked at Jessup for quite some time, fair to say? [YOUNG:] Yes. [APPELLANT’S COUNSEL:] And they have seniority like yourself, correct? [YOUNG:] Some would, yes. [APPELLANT’S COUNSEL:] So if they, like yourself, they could bid into another job because they have the seniority to do that, right? [YOUNG:] Correct. [APPELLANT’S COUNSEL:] And it is your choice, is it not, to work at Jessup? [YOUNG:] Yes. [APPELLANT’S COUNSEL:] And it has been your choice to work at that facility in that yard on those walking surfaces for the ten years plus that you have been there, correct? [YOUNG:] Correct. Similarly, appellant elicited testimony from Hobgood that certain jobs involved less walking and he could decide the type of job he wanted to work based on his seniority.

Hartman also was questioned regarding his ability to chose his work site. Appellant’s counsel questioned Hartman: “[Y]ou worked primarily at Curtis Bay [14] for the last 30 ²²⁷ years?” and “[Y]ou work in Curtis Bay by choice?,” to both of which Hartman answered in the affirmative. Appellant’s counsel then revisited the topic of seniority, asking Hartman: “After you have been at the railroad a few years, as your seniority grows, you can choose where you want to work[?],” to which Hartman agreed. Appellant’s counsel continued: [APPELLANT’S COUNSEL:] If you get some other fellows behind you to climb up the ladder a little bit, you can choose where you want to work? [HARTMAN:] That is right. [APPELLANT’S COUNSEL:] So you can choose to work in some other yard if you didn’t like working in Curtis Bay? [HARTMAN:] Yes, sir. [APPELLANT’S COUNSEL:] I gather since you have worked there for 30 years, most of your time, that yard is fine for you to work in as far as you can tell? [HARTMAN:] I am not sure I understand your question. [APPELLANT’S COUNSEL]: You have chosen to work there, right? [HARTMAN:] Yes, I have.

(Emphasis added). In closing argument, appellant’s counsel highlighted the choices made by Davidson, Hobgood, Fedorchak, Bickerstaff, Young, Hartman, and Zientek with regard to their particular jobs and the yards at which they worked: All right. Choice. [ ] Davidson, he chose to work a job out of Hanover, Pennsylvania. You hear that was a little bit easier than some others and his seniority allows him to do that and that’s what he chooses to do. [ ] Hobgood has enough seniority he can work any job he wants and he currently chooses to work a flagman’s job....

He has worked out on the road since 1979. That’s the job he has chosen to do. He has really not worked in the yards. ²²⁸ [ ] Fedorchak, he likes to change jobs every so often, so every six months or so he goes to another job and works it. He has been in Bayview [15] for the last year and a half. [ ] Bickerstaff is a car man.

He seniority [sic] to work in the car shop if he wanted to, but he likes working outside, he likes working in the yard, particularly at Locust Point. [16 ] [ ] Young, he has a lot of seniority. That’s what makes it possible for him to work at Jessup [17] which is one of the most popular places to work, that that’s where he chooses to work. [ ] Hartman, he also has a lot of seniority. And he likes Curtis Bay. So that’s where he has been working most of the last 30 years. [] Zientek, he has enough seniority.

He went back to Brunswick. [18] (Emphasis added). The evidence adduced and argument presented concerning appellees’ choice of work or work site thus support the inference that appellees voluntarily and knowingly accepted the dangers inherent in working for appellant when they performed their jobs. Such evidence and argument increased the risk that, in the absence of an instruction, 'the jury would improperly infer that appellees had assumed the risk in performing their work. Therefore, the subject jury charge adequately, and quite appropriately, distinguished between conduct constituting contributory negligence and conduct constituting assumption of risk.

Accordingly, the trial court did not err in giving a jury instruction on assumption of risk. ²²⁹ III. Statute of Limitations Appellant contends that the issue of whether the claims of six appellees, Bickerstaff, Brown, Davidson, Hobgood, Short, and Young, were time barred under 45 U.S.C. § 56 , the statute of limitations applicable in FELA actions, should have been submitted to the jury. 19 Thus, appellant argues, the court erred in ruling that their claims were timely as a matter of law. Section 56 provides: “No action shall be maintained under this act unless commenced within three years from the day the cause of action accrued.” Bickerstaff was the first to file his complaint on December 22, 2004. Brown, Davidson, Hobgood, Short, and Young followed suit, filing their claims on February 14, 2005.

Thus the critical date of accrual for Bickerstaffs cause of action was December 22, 2001, and the date of accrual for the actions of Brown, Davidson, Hobgood, Short, and Young was February 14, 2002. A. Trial Court’s Ruling: Timely as a Matter of Law At the close of appellees’ case, appellant moved for judgment based on FELA’s three year statute of limitations with regard to Bickerstaff, Brown, Davidson, Hobgood, Short, and Young. The court denied appellant’s motions, ruling: The Court feels that the issue[ ] of statute of limitations more appropriately [is] a jury question in light of the evidence that’s been submitted and the argumentf ] made is that the issue as to statute of limitations as to all of those [six appellees] will be submitted to the jury for the jury’s determination. ²³⁰ At the close of all evidence, appellant renewed its motion as to Bickerstaff, Brown, Davidson, Hobgood, Short, and Young. The court ruled: [T]he Court notes that while [appellees] [are] not allowed to ignore medical conditions and [are] required to seek out appropriate medical treatment, the Court is reminded that case law is very clear that the mere fact that one has pain in the workday does not mean that it necessitates going to the doctor.

The Court turns it and reviews the facts and circumstances before it. There is sufficient evidence before the Court that the Court will deny the motion as to the statute of limitations as to each of said [appellees], and all other matters will go to the jury. Appellant also presented to the court several instructions on the statute of limitations. The trial court chose not to give the instructions, instead informing the parties that appellant’s motion for judgment was denied and that appellees’ claims were timely filed as a matter of law.

B. Standard Applied in FELA Actions In Miller , we set forth the standard used when analyzing the statute of limitations in FELA cases. We stated: “In evaluating limitations in a FELA context ... ‘the standard is more lenient than that which applies in the ordinary action.’ ” 159 Md.App. at 150 , 858 A.2d 1025 (quoting Crisman v. Odeco, Inc., 932 F.2d 413 , 416 n. 2 (5th Cir.1991) (emphasis added in Miller)). When, as in the case sub judice, the nature of a plaintiffs injuries involve “a gradually progressive and almost indiscernible decline,” as opposed to a “dramatic physical accident,” we apply “the discovery rule” to determine the accrual date of the FELA action. Id. at 150-51, 858 A.2d 1025 . “[T]he discovery rule fixes accrual at the time the plaintiff first becomes aware of both 1) the existence of an ²³¹ injury and 2) the cause of the injury.” Id. at 151 , 858 A.2d 1025 .

A plaintiff is “not obliged to discover his medical condition,” but “once that medical condition is known to him, [he must] explore its legal implications within the limitations deadline.” Id. at 151-52 , 858 A.2d 1025 . Further, “ ‘[w]hen the specific date of injury cannot be determined because an injury results from continual exposure to a harmful condition over a period of time, the cause of action does not accrue until the injury manifests itself.’ ” Id. at 152 , 858 A.2d 1025 (quoting Rogers v. Illinois Cent. R.R. Co., 833 S.W.2d 426, 427 (Mo.App.1992)). Therefore, a claim in such case is deemed to accrue under FELA “ ‘when the claimant becomes aware or has reason to be aware that he has been injured and is aware or has reason to be aware of the cause of his injury.’ ” Id. at 153, 858 A.2d 1025 (quoting Rogers, 833 S.W.2d at 428 ).

We went on to explain that in the “ ‘case of actual knowledge, the cause of action accrues when the character of the condition and its cause first come together for the plaintiff.’ ” Id. (quoting Rogers, 833 S.W.2d at 428 ) (internal quotation omitted). The “should have known” test, however, is not a “could have known” test. Id. “ ‘Rather, it requires a very substantial common-sense likelihood that a reasonably careful person would discover the existence of the injury and its cause.’ ” Id.

(quoting Rogers, 833 S.W.2d at 428 ). In deciphering the accrual of a FELA action, the trial court has “only three legal possibilities.” Id. at 150, 858 A.2d 1025 . When the evidence is “so clear, decisive, and unequivocal” that the plaintiff had the requisite awareness more than three years prior to the filing of the claim, the trial judge is charged with deciding as a matter of law that the statute of limitations has run. Id.

When, however, the evidence is “so clear, decisive, and unequivocal” that the plaintiff did not have the requisite awareness until after that date, the judge must decide the issue as a matter of law in the plaintiffs favor. Id. Lastly, and statistically the category in which most cases fall, is the “80% bulge of the bell-shaped curve where there [is] some plausible evidence pointing in each direction.” Id. Un ²³² der the third scenario, “the resolution of the limitations issue [is] quintessentially a matter of fact and not a matter of law.” Id.

Appellant maintains that appellant “was entitled, at the very least, to submit the question of timeliness to the jury,” because there was evidence that Bickerstaff, Brown, Davidson, Hobgood, Short, and Young knew or had reason to know of their alleged knee injuries (plus back injury for Brown) and that those injuries were work-related more than three years before filing their claims. Therefore, appellant concludes that it is entitled to a new trial on whether the claims of those six appellees were timely. In its brief, appellant outlines the testimony of Bickerstaff, Brown, Davidson, Hobgood, Short, and Young showing that each individual began having knee (and in the case of Brown, knee and back) problems more than three years prior to the filing of their claims. Appellant argues that their testimony was “sufficient to create a jury question as to whether each of these [appellees] knew or had reason to know of his alleged medical condition more than three years before filing his claim—especially given [appellees’] affirmative duty to investigate any symptoms.” (Emphasis in original).

Appellant also points to the testimony of appellees’ own expert that “the relationship between occupational activities and osteoarthritis is not a ‘secret in the medical community,’ ” and argues that, “if [appellees] had sought medical care when they experienced their initial symptoms—as they were required to do under the discovery rule—... they would have learned about the alleged connection between their medical conditions and their employment for [appellant].” Appellant concludes that Bickerstaff, Brown, Davidson, Hobgood, Short, and Young “knew or had reason to know that their alleged medical conditions were allegedly work related more than three years before filing their claims.” Appellees respond that, “in light of the evidence presented at trial, including [appellant’s] persistent position that [appellees] suffer from no significant symptoms of osteoarthritis and, ²³³ to the extent they may, that such condition is entirely unrelated to their decades of railroad service, the trial court properly ruled that all six [appellees’] claims were timely filed.” According to appellees, appellant’s “extensive efforts to establish that [appellees] were not injured and that the injuries were entirely unrelated to any railroad work ... negated its statute of limitations defense.” Moreover, appellees contend that appellant’s argument seeks to impose “the onerous duty ... on every railroad worker” to investigate, research, and seek out immediate medical treatment to discover the origin and extent of any ache or pain, and “to oversell as significant that which any reasonable and rationale person would find trivial, particularly in light of the physically demanding jobs [appellees] performed.” In Miller , the appellee, an injured railroad employee, brought a FELA action against the railroad, the appellant, seeking to recover damages for the osteoarthritis that he developed in both knees during the course of his employment as a conductor. 159 Md.App. at 148 , 858 A.2d 1025 . On January 20, 1997, after the appellee awoke with a swollen left knee, he went to the emergency room at the Johns Hopkins Bayview Medical Center. Id. His knee was x-rayed, and the appellee was prescribed aspirin and told to put ice packs on his knee for the swelling and to return to the hospital if the swelling got any worse or began to burn inside.

Id. Following his visit to Bayview, the swelling went down and the pain went away. Id. The appellee had no problem with his knee for the next three and one-half years.

Id. at 149 , 858 A.2d 1025 . Two days after the appellee left Bayview, an x-ray report was prepared; the report read “osteoarthritis.” Id. at 157 , 858 A.2d 1025 . The appellee never saw the x-ray and was never informed about it. Id.

When questioned at trial about the existence of pain prior to his emergency room visit, the appellee testified that he had earlier pains in his knees, which he attributed to the process of aging. Id. The appellee had felt pain in his knees on and off since the early 1990’s. Id. at 159 , 858 A.2d 1025 . ²³⁴ In August 2000, the appellee’s knee “gave out” while he was getting ready to throw a switch.

Id. at 149 , 858 A.2d 1025 . Following treatment by his family doctor, the appellee returned to work, but due to continuing pain or discomfort, was referred to an orthopedic specialist, who diagnosed the appellee’s condition as osteoarthritis. Id. The appellee filed his claim on August 13, 2001.

Id. at 150 , 858 A.2d 1025 . The “critical question” before this Court in Miller was whether prior to August 13,1998, three years before the filing of his claim, the appellee “knew or should have known both 1) that he was suffering from osteoarthritis in one or both of his knees, and 2) that the osteoarthritis was attributable to his years of pounding the ballast trail.” Id. at 155 , 858 A.2d 1025 . We turned our attention to the appellee’s 1997 visit to Bay-view, noting that if the cause of action accrued at the time of that visit, the appellee’s FELA claim was time-barred. Id. at 155-56 , 858 A.2d 1025 .

Dismissing the appellant’s contention that the appellee should have been charged with knowledge of his osteoarthritis in 1997, we concluded that the evidence presented “a jury question at most. ” Id. at 158 , 858 A.2d 1025 (emphasis added). We stated: [The appellant] purports to be aghast at [the appellee’s] failure to have called Bayview back and to have insisted on learning what impression, if any, was made of his x-ray. [The appellant] strongly suggests, without quite saying so, that under the “should have known” standard, [the appellee] should be charged with the knowledge of that impression. As it then proceeds to pose the accrual issue, [the appellant], without so much as a “by your leave,” treats [the appellee’s] state of self-awareness as, indeed, charged with such knowledge. [The appellant] seems to posit, in that regard, some sort of intellectual or professional imperative to chase down the answer to every pending inquiry. There might, to be sure, be some such imperative churning within the reasonable operating surgeon, always fearful of malpractice suits; in the reasonable tort lawyer, always looking for an edge at the trial table; or in the reasonable national security officer, ²³⁵ always sensitive