CSX Transportation, Inc. v. Miller

CHARLES E. MOYLAN, JR., Judge, retired, specially assigned. The A, B, C’s of Where We Are This appeal is from a plaintiffs verdict in a Federal Employers’ Liability Act (“FELA”) case. That statement may be self-explanatory to the small handful of practitioners who labor regularly, or even occasionally, in that very specialized vineyard. One strongly suspects, however, that many who speak of FELA law with breezy familiarity are only whistling past the graveyard.

To the more modest vast majority of the bar (and the bench), a FELA case is essentially, if not totally, terra incognita. 1 For those suddenly cast ashore on that ¹²⁹ exotic coast, it may be prudent, before plunging into the interior, to spend a few pages looking about and getting one’s bearings. A. A FELA Suit Is a Hybrid 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.

The FELA was, from its birth, a narrow solution to a narrow problem. The cause of action is very restrictive in its coverage, in terms of both defendants and plaintiffs. The only possible defendants are railroads engaged in interstate commerce. The only possible plaintiffs are the employees of those railroads who are injured on the job.

The very title of the law, Federal Employers’ Liability Act, is confusingly over-broad. As Reginald Parker, “FELA or Uniform Compensation for All Workers,” 18 Law and Contemporary Problems (Duke University School of Law, 1953) (hereinafter “Parker”) 208 n. 3, pointed out: The title of the FELA is misleading. It is not a “federal em.ployer” law but a ¡federal] law pertaining to employers; and it does not pertain to “employers” as such, either, because it merely applies to railroads. (Emphasis supplied).

The approach taken by Congress in 1906 and 1908 was, by today’s standards, strangely ad hoc, restricting the remedy to railroad workers alone. In 1920, the Congress was similarly ad hoc in passing the Jones Act, now codified as 46 U.S.C. §§ 688 et. seq., which gave to seamen in interstate commerce the same rights given to railroad employees by the FELA. Kernan v. American Dredging Co., 355 U.S. 426, 429-33 , 78 S.Ct. 394 , 2 L.Ed.2d 382 (1958). Other long distance transportation employees, apparently because they were later to come onto the field, such as airline employees and interstate bus line employees were left uncovered by the FELA or the Jones Act or any similar act.

Even railway express employees and Pullman car porters, for reasons largely lost in the mists, were ¹³⁰ not covered. Wells Fargo & Co. v. Taylor, 254 U.S. 175 , 41 S.Ct. 93 , 65 L.Ed. 205 (1920); Robinson v. Baltimore & O.R.R. Co., 237 U.S. 84 , 35 S.Ct. 491 , 59 L.Ed. 849 (1915). The FELA is, indeed, narrow in its focus. The two-decade-long reform movement that culminated in the passage by Congress of the first FELA in 1906 was concerned with a type of social problem that, in the immediately ensuing decades, began to be addressed, at both state and federal levels, by the passage of workers’ compensation laws.

In 1906, however, workers’ compensation was not yet a realistically viable option. Parker, at 215, has explained: To leave injured railway workers to state workmen’s compensation ... was not possible in 1906 and 1908 when but few states had workmen’s compensation laws, whose constitutional validity was considered dubious. (Emphasis supplied). By contrast, Congress was already looking favorably on workers’ compensation laws by 1916, when it passed the Federal Employees’ Compensation Act, 5 U.S.C. §§ 751 et seq., and by 1927, when it passed the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq., as bona fide workers’ compensation statutes.

See Calbeck v. Travelers Insurance Co., 370 U.S. 114, 117-22 , 82 S.Ct. 1196 , 8 L.Ed.2d 368 (1962); Stanley v. Western Maryland Ry. Co., 301 Md. 204, 207-08 , 482 A.2d 881 (1984). The impetus for the FELA was that throughout the 1870’s, 80’s, and 90’s, thousands of railroad workers were being killed and tens of thousands were being maimed annually in what came to be increasingly seen as a national tragedy, if not a national scandal. In concurrence in Wilkerson v. McCarthy, 336 U.S. 53, 68 , 69 S.Ct. 413 , 93 L.Ed. 497 (1949), Justice Douglas paraphrased President Theodore Roosevelt, a staunch and early champion of the FELA, in declaring that a national law was needed that “was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.” In Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 542 , 114 S.Ct. 2396 , 129 ¹³¹ L.Ed.2d 427 (1994), the Supreme Court referred to the FELA’s energizing purpose: Cognizant of the physical dangers of railroading that resulted in the death or maiming of thousands of workers every year, Congress crafted a federal remedy that shifted part of the “ ‘human overhead’ ” of doing business from employees to their employers.

(Emphasis supplied). Justice Brennan, in Kernan v. American Dredging Co., supra, 355 U.S. at 431-32 , 78 S.Ct. 394 , described the FELA as a recognition that the railroad industry was better able to shoulder the cost of industrial injuries and deaths than were injured workers or their families: [I]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). 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. ¹³² B. The Enactment, and Reenactment, of the FELA Twenty years of labor agitation and social reform, cheered on by the bully trumpeting of the sitting president, created the hydraulic groundswell that produced the first FELA in 1906. It subjected railroads to suits by injured employees.

In January of 1908, however, the Supreme Court, in Howard v. Illinois Central R.R., 207 U.S. 463 , 28 S.Ct. 141 , 52 L.Ed. 297 (1908), struck down the act as unconstitutional for not having adequately confined the law to situations implicating interstate commerce. Congress, urged on by President Roosevelt, responded within three months by reenacting the FELA, now adequately confined to interstate commerce. The reenacted FELA of 1908 is now codified as 45 United States Code Annotated, §§ 51 through 60. The heart of the act is spelled out by § 51, which provides in pertinent part: Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to' any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

(Emphasis supplied). A FELA claim may be brought in state or federal court. 45 U.S.C. § 56 provides, in pertinent part: The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States. St. Louis Southwestern Railway Company v. Dickerson, 470 U.S. 409, 411 , 105 S.Ct. 1347 , 84 L.Ed.2d 303 (1985), further provides: ¹³³ As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal. Dan B. Dobbs, 1 The Law of Torts (2001), 312, briefly describes the FELA: The FELA creates a federal claim on behalf of railroad workers injured on the job.

The statute abolishes the defenses of contributory negligence and assumed risk and is interpreted to impose a liberal view of fault and causation that makes recovery relatively easy. Were there no such statutes, the railroad employees would ordinarily be limited to state tort law claims or workers’ compensation payments for on the job injury or would be subject to defenses like contributory negligence and assumed risk. Although FELA cases are still negligence cases in the sense that negligence is an issue, some of the rules of conduct and litigation are different. (Emphasis supplied).

C. The FELA Is Not a Workers’ Compensation Law Because the FELA does not impose on the railroads tort liability for injuries inflicted on the public generally, but is confined to liability for injuries suffered by employees in the course of their employment, it bears a strong resemblance to workers’ compensation laws. It is not such, however. In Consolidated Rail Corporation v. Gottshall, supra, 512 U.S. at 543 , 114 S.Ct. 2396 , the Supreme Court made that very clear: That FELA is to be liberally construed,, however, does not mean that it is a workers’ compensation statute. We have insisted that FELA “does not make the employer the insurer of the safety of his employees while they are on duty.

The basis of his liability is his negligence, not the fact that injuries occur.” (Emphasis supplied). John M. Ennis, “An Analysis of Judicial Interpretation and Application of Certain Aspects of the Federal Employers Liability Act,” 18 Law and Contemporary Problems (Duke ¹³⁴ University School of Law, 1953) (hereinafter “Ennis”), 350, similarly observed: The first thing that should be emphasized about the Federal Employers’ Liability Act is that it is not in the nature of a workmen’s compensation law, but is in fact a special federal negligence law which gives the right to most of the employees of the railroads to bring a negligence action against their employer for personal injuries suffered while on the job. (Emphasis supplied). For railroad employees, there are both advantages and disadvantages to being covered, in terms of industrial injuries or occupational diseases, by something other than workers’ compensation law.

On the downside, it is, to be sure, more difficult to establish a provable claim. Ennis, at 350, points out: [I]f there are no facts which indicated negligence on the part of the railroad, the employee has no right under the Act which can be successfully prosecuted. There are situations where a man is injured through no apparent fault of his own and yet there cannot be shown any negligence on the part of the carrier. Such an injured railroad employee is indeed unfortunate because he does not have recourse to any state workmen’s compensation law and there is no federal compensation law to cover him, so that he is in the position of having no remedy in any form for his injuries and damages, and if he is killed his widow is in a sad situation legally as well as personally.

(Emphasis supplied). On the upside, the courts look with favor on FELA suits and the rewards for a successful plaintiff are invariably higher than would be the case with a workers’ compensation award. Parker, at 210, observes: This mode of legislation has created a friendly atmosphere toward injured railroad workers in the courts, both state and federal. ... Verdicts are high, probably higher than they would be in ordinary tort suits for similar ¹³⁵ injuries.

And it need not be emphasized that, stripped of their most powerful common-law defenses, particularly contributory negligence and assumption of risk, the defendant railroads under the FELA have less of a chance to prevail than ordinary defendants in negligence suits. (Emphasis supplied). In the present case, for instance, the jury award to the plaintiff was for $1,500,000. Not many workers’ compensation awards would ever reach that figure for an osteoarthritic left knee.

D. A FELA Suit For Negligence Is Not the Common Law Tort of Negligence A FELA suit can be successfully pursued by an employee only if there is proof of some negligence on the part of the railroad. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653 , 67 S.Ct. 598 , 91 L.Ed. 572 (1947), is very clear: The Act does not make the employer the insurer of the safety of his employees while they are on duty. 'The basis of his liability is his negligence, not the fact that injuries occur. And that negligence must be “in whole or in part” the cause of the injury. (Emphasis supplied).

The negligence that must be shown in a FELA action, however, is but a pale reflection of common law negligence. As was pointed out by the Supreme Court in Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 509-10 , 77 S.Ct. 443 , 1 L.Ed.2d 493 (1957), “the special features of this statutory negligence action ... make it significantly different from the ordinary common law negligence action.” As Parker explains, at 208-09, the FELA was a statute that modified the tort law in the case of a railroad’s duty to its employees. [I]t is a statute modifying the duties under tort law of railroads toward their employees. Under the common law of torts, the master is liable to his servants for negligence, particularly in providing them with a safe place to work as well as with safe tools, and has a duty to help them when in peril. These duties, however, are or at least were subject to ¹³⁶ considerable restrictions, which made the lot of the worker in common-law countries somewhat less desirable than that of his brethren under the civil law.

His negligence suit against the employer is or was open to the defense of his contributory negligence, which was not hard to adduce; after all, it can nearly always be said that with greater care the employee could have avoided an accident that occurred under circumstances over which he was likely to have greater control than his master. And if he was not contributorily negligent, the easily proved fact that he had “assumed” the risks of his employment stood up as another defense against his claim. Furthermore, even if the servant had neither carelessly contributed to nor assumed the dangers that brought about his accident, the fault of a fellow servant could be used under a particularly harsh doctrine in order to defeat the tort action.... The FELA, as amended, has done away with the defense of contributory negligence as we know it and replaced it by comparative negligence of maritime and European civil law, which works merely in mitigation of damages.

It has completely abolished the fellow servant doctrine, which means that respondeat superior is applicable and the railroad is liable regardless of who within the scope of his railroad employment caused the accident. Assumption of risk is no longer a defense, not even in mitigation of damages. (Emphasis supplied). 1. Negligence Is a Substantive and Federal Question Urie v. Thompson, 337 U.S. 163, 174 , 69 S.Ct. 1018 , 93 L.Ed. 1282 (1949), squarely held that the existence of negligence under the FELA is a question of federal law and not of state law: What constitutes negligence for the statute’s purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and ¹³⁷ local laws for other purposes.

Federal decisional law formulating and applying the concept governs. (Emphasis supplied). 2. Elimination of Contributory Negligence As a Defense; Elimination of the “Fellow Servant” Defense As early as 1908, the FELA eliminated contributory negligence as a bar to a finding of liability. Section 53 of the act provides, in pertinent part.

In all actions on and after April 22, 1908 brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery. (Emphasis supplied). The original act also “abolished the employer’s ‘fellow servant’ defense.” Consolidated Rail Corporation v. Gottshall, supra, 512 U.S. at 560 n. 2, 114 S.Ct. 2396 . 3. Elimination of Assumption of Risk As a Defense A number of Congressional amendments made the FELA even more plaintiff-friendly in 1939.

Among them was the elimination of the defense of assumption of risk. Section 54 of the Act now provides, in pertinent part: In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. (Emphasis supplied). Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58 , 63 S.Ct. 444 , 87 L.Ed. 610 (1943), added an exclamation point to the 1939 amendment: ¹³⁸ We hold that every vestige of the doctrine of assumption of risk was obliterated from the law by the 1939 Amendment, and that Congress, by abolishing the defense of assumption of risk in that statute, did not mean to leave open the identical defense for the master by changing its name to “non-negligence.” (Emphasis supplied). 4.

Watering Down the Proof of Negligence Yet another strongly plaintiff-friendly departure of the FELA from common law negligence actions is that if the railroad is guilty of any violation of the Safety Appliance Acts, 45 U.S.C. §§ 1 et seq., or the Boiler Inspection Act, 45 U.S.C. §§ 22 et seq., that contributes in any way to the injury, the employee is relieved of any further burden of proving negligence on the part of the railroad. The employee has the benefit of “the legislative intent to treat a violation of the safety appliance act as ‘negligence,’—what is sometimes called negligence per se.” Urie v. Thompson, supra, 337 U.S. at 189 , 69 S.Ct. 1018 . As Urie v. Thompson further explained: [T]he Safety Appliance Acts, together with the Boiler Inspection Act, are substantively if not in form amendments to the Federal Employers’ Liability Act. They dispense, for the purposes of employees’ suits, with the necessity of proving that violations of the safety statutes constitute negligence; and making proof of such violations is effective to show negligence as a matter of law. ... [T]he Boiler Inspection and Safety Appliance Acts cannot be regarded as statutes wholly separate from and independent of the Federal Employers’ Liability Act.

They are rather supplemental to it, having the purpose and effect of facilitating employee recovery, not of restricting such recovery or making it impossible. 337 U.S. at 189 , 69 S.Ct. 1018 (emphasis supplied). When the basis for the FELA liability is a violation of the Boiler Inspection Act or the Safety Appliance Acts, nothing more in the way of negligence need be shown. Lilly v. ¹³⁹ Grand Trunk W.R.R. Co., 317 U.S. 481, 485-86 , 63 S.Ct. 347 , 87 L.Ed. 411 (1943), explained: Negligence is not the basis for liability under the Act. Instead it “imposes upon the carrier an absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate in active service without unnecessary peril to life or limb.” The Act ... is to be liberally construed in the light of its prime purpose, the protection of employees and others by requiring the use of safe equipment.

(Emphasis supplied). And see Haischer v. CSX Transportation, Inc., 381 Md. 119, 125-28 , 848 A.2d 620 (2004); CSX Transportation, Inc. v. Haischer, 151 Md.App. 147, 154-56 , 824 A.2d 966 (2003). Parker, at 209, has characterized the impact of this departure from what would otherwise be the problem of proving negligence: Finally, the Safety Appliance Acts as interpreted by the courts have established the rule that any violation of these ads, or of any regulation issued thereunder, imposes absolute liability on the railroad. The problem of negligence may not be raised and it is error to charge the jury with the question in safety appliance cases.

The scope of this rule is very far-reaching and, at times bring the FELA into the close vicinity of an insurance law or, in other words, of workmen’s compensation. Once the failure to work properly of a safety appliance ... is shown there remains only the question of causation. (Emphasis supplied). Kernan v. American Dredging Co., supra, also observed. [Lfiability was created without regard to negligence under the line of decisions of this Court in actions under the ¹⁴⁰ FELA based upon violations of either the Safety Appliance Acts or the Boiler Inspection Act. 355 U.S. at 430 , 78 S.Ct. 394 (emphasis supplied).

A violation of a statutory duty, moreover, is interpreted more liberally in favor of the plaintiff in a FELA action than would be the case under traditional tort law. Kernan v. American Dredging Co., supra, outlines this difference: The tort doctrine imposes liability for violation of a statutory duty only where the injury is one which the statute was designed to prevent. However, this Court has repeatedly refused to apply such a limiting doctrine in FELA cases. 355 U.S. at 432 , 78 S.Ct. 394 (emphasis supplied). 5. Watering Down the Proof of Causation Quite aside from the watering down of the proof of negligence, the FELA also involves a significant watering down of the proof of causation.

In Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506 , 77 S.Ct. 443 , 1 L.Ed.2d 493 (1957), the Supreme Court was very clear. [T]he test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes. (Emphasis supplied). In Consolidated Rail Corp. v. Gottshall, supra, the Supreme Court reaffirmed: We have liberally construed FELA to further Congress’ remedial goal. [A] relaxed standard of causation applies under FELA.

We stated that “[ujnder this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any ¹⁴¹ part, even, the slightest, in producing the injury or death for which damages are sought. 512 U.S. at 543 , 114 S.Ct. 2396 (emphasis supplied). Ennis, at 351, also speaks to this lowering of the bar as the plaintiff undertakes to prove causation. [T]he railroad is responsible and shall be liable in damages for injuries or death resulting in whole or in part from the negligence of any of its agents or insufficiency in its equipment, etc. The important words here are “in part. ” This means that, ivhile the injured man’s employer may be only slightly negligent in a small part of the entire picture of negligence, nevertheless, the carrier is responsible under the Act and, can be made responsible in damages. (Emphasis supplied). 6. The Departure From Tort Law Generally In Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 561 , 107 S.Ct. 1410 , 94 L.Ed.2d 563 (1987), Justice Stevens underscored the FELA’s purpose to modify the common law tort of negligence by eliminating a number of the traditional defenses.

In 1906, Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees. A primary purpose of the Act was to eliminate a number of traditional defenses to tort liability and to facilitate recovery in meritorious cases. The Act expressly prohibits covered earners from adopting any regulation, or entering into any contract, to limit their FELA liability. (Emphasis supplied).

Consolidated Rail Corp. v. Gottshall, supra, 512 U.S. at 542-43 , 114 S.Ct. 2396 , spoke to the same effect: In order to further FELA’s humanitarian purposes, Congress did away with several common-law tori defenses that had effectively barred recovery by injured workers. Specifically, the statute abolished the fellow servant rale, rejected the doctrine of contributory negligence in favor of that of ¹⁴² comparative negligence, and prohibited employers from exempting themselves from FELA through contract; a, 1939 amendment abolished the assumption of risk defense. (Emphasis supplied). E. The Explanation For FELA’s Departure From Common Law Negligence A cause of action that keeps one foot doggedly rooted in negligence but stretches almost all the way to workers’ compensation may seem bizarre.

The Supreme Court, however, has explained how deeper tectonic forces produce, over time, otherwise inexplicable surface shifts. Justice Brennan in Kernan v. American Dredging Co., supra, described the under-girding social and economic changes that underlay the movement away from a common law tort with numerous defenses to a mere shadow of a tort that eerily resembles a workers’ compensation statute. As a recognized, even if unspoken, policy, the common law tort defenses were intended to protect the employer. It is true that at common law the liability of the master to his servant was founded wholly on tort rules of general applicability and the master was granted the effective defenses of assumption of risk and contributory negligence.

This limited liability derived from a public policy, designed to give maximum freedom to infant industrial enterprises, “to insulate the employer as much as possible from bearing the ‘human overhead’ which is an inevitable pari of the cost—to someone—of the doing of industrialized business. ” 355 U.S. at 431 , 78 S.Ct. 394 (emphasis supplied). See also Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. at 59 , 63 S.Ct. 444 . With the late 19th Century growth in economic power of the railroad industry, however, the courts consciously readjusted the allocation of the risks between employer and employee. The courts, in developing the FELA with a view to adjusting equitably between the worker and his corporate employer the risks inherent in the railroad industry, have ¹⁴³ plainly rejected many of the refined distinctions necessary in common-law tort doctrine for the purpose of allocating risks between persons who are more nearly on an equal footing as to financial capacity and ability to avoid the hazards involved. 355 U.S. at 438 , 78 S.Ct. 394 (emphasis supplied).

F. The FELA’s Liberal Interpretive Mindset Because of its midway position between a common law action in negligence and a workers’ compensation claim, a FELA case calls for an interpretative approach that is significantly different from that which ordinarily prevails in a suit for common law negligence. As early as Jamison v. Encarnacion, 281 U.S. 635, 640 , 50 S.Ct. 440 , 74 L.Ed. 1082 (1930), the Supreme Court set out the interpretive guidelines: The Act is not to be narrowed by refined reasoning. It is to be construed liberally to fulfill the purposes for which it was enacted. (Emphasis supplied).

Urie v. Thompson, supra, was a case in which the Supreme Court, without any clear textual predicate, held that the FELA covered occupational diseases as surely as it covered accidental physical injuries. Its ratio decidendi was the broad purpose energizing the FELA. Considerations arising from the breadth of the statutory language, the Act’s humanitarian purposes, its accepted standard of liberal construction in order to accomplish those objects, the absence of anything in the legislative history indicating a congressional intent to require a restricted interpretation or expressly to exclude such occupational disease, and the trend of existing authorities dealing with the question, combine to support this conclusion. 337 U.S. at 180-81 , 69 S.Ct. 1018 (emphasis supplied). The Court went on to spell out the attitude with which the FELA must be viewed: The language is as broad as could be framed: “any person suffering injury while he is employed”; and “such injury or ¹⁴⁴ death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier”; “by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances,” etc. On its face, every injury suffered by any employee while employed by reason of the carrier’s negligence was made compensable.

The wording was not restrictive as to the employees covered; the cause of injury, except that it must constitute negligence attributable to the carrier; or the particular kind of injury resulting. To read into this all-inclusive wording a restriction as to the kinds of employees covered, the degree of negligence required, or the particular sorts of harms inflicted, would be contradictory to the wording, the remedial and humanitarian purpose, and the constant and established course of liberal construction of the Act followed by this Court. 337 U.S. at 181-82 , 69 S.Ct. 1018 (emphasis supplied). Referring to this series of liberal interpretations, Urie v. Thompson summarized: We think they were made in the spirit the statute contemplated for its administration and application. That spirit is one not in conformity with importing nice distinctions in applying the act’s broad and general terms or cutting down their full scope by inference or implication. 337 U.S. at 186 , 69 S.Ct. 1018 (emphasis supplied).

In Kernan v. American Dredging Co., supra, Justice Brennan reaffirmed the liberal interpretation that must be brought to bear on any FELA case. Congress saw fit to enact a statute of the most general terms.... [IJt is clear that the general congressional intent was to provide liberal recovery for injured workers; and it is also clear that Congress intended the creation of no static remedy, but one which would be developed and enlarged to meet changing conditions and changing concepts of industry’s duty toward its workers. 355 U.S. at 432 , 78 S.Ct. 394 (emphasis supplied). Justice Brennan further explained the mechanism by which the FELA should continue to evolve in order to provide ¹⁴⁵ “compensation for injuries to employees consistent with the changing realities of employment in the railroad industry.” Congress, in 1908, did not crystallize the application of the Act by enacting specific rules to guide the courts. Rather, by using generalized language, it created only a framework within which the courts were left to evolve, much in the manner of the common law, a system of principles providing compensation for injuries to employees consistent with the changing realities of employment in the railroad industry. 355 U.S. at 437 , 78 S.Ct. 394 (emphasis supplied).

The drumbeat of liberal interpretation continued uninterrupted in Atchison, Topeka and Santa Fe v. Buell, supra. We have recognized generally that the FELA is a broad remedial statute, and have adopted a “standard of liberal construction in order to accomplish [Congress’] objects.” 480 U.S. at 562 , 107 S.Ct. 1410 (emphasis supplied). Most recently, Consolidated Rail Corporation v. Gottshall, supra, reconfirmed the spirit in which a FELA case must be approached. Relying upon “the breadth of the statutory language, [and] the Act’s humanitarian purposes,” this Court has accorded the FELA a notably “liberal construction in order to accomplish [Congress’] objects. ” 512 U.S. at 560-61 , 114 S.Ct. 2396 (Dissenting opinion of Ginsburg, J.) (emphasis supplied).

In the wake of this juggernaut of language, consistently iterated and reiterated over the course of seven and one-half decades, it is not hard to figure out who wins the ties and who gets the benefit of the close calls. The Special Context of a FELA Case In any event, the FELA has created a cause of action that, if not odd, is, at the very least, far from the run of the mill. It is unquestionably bipolar. Hopefully, this pre-analysis reconnaissance will provide some sense of the unusual terrain on ¹⁴⁶ which we will be operating, as we turn now to the FELA case before us.

The Present Case The appellee, Donald Miller, filed suit against the appellant, CSX Transportation, Inc., in the Circuit Court for Baltimore City, alleging a violation of the Federal Employers’ Liability Act (“FELA”). CSX is a railroad. Miller was for 24 years an employee of that railroad. He sought recovery for bilateral osteoarthritis of the knees caused by cumulative trauma occurring over the period of his employment with CSX.

After a six-day trial, presided over by Judge Alfred Nance, the jury returned a verdict in favor of Miller for $1,500,000. On appeal, CSX raises four major issues, -with a variety of sub-issues. The major questions are: 1. Whether Judge Nance erroneously failed to grant CSX’s motion for summary judgment on the limitations issue, to wit, whether Miller knew or should have known of his injury by August 13, 1998? 2.

Whether Miller’s FELA claim was pre-empted by federal regulations contained in the Federal Railroad Safety Act? 3. Whether Miller presented legally sufficient evidence, quantitatively and qualitatively, to prove that CSX was negligent and that that negligence caused Miller’s injury? 4. As a gratuitous contention that we have added, Whether Judge Nance erroneously permitted three expert witnesses to offer expert opinions?, and 5. Whether Judge Nance erroneously admitted evidence of yard conditions, complaints, and injuries at other CSX locations outside of Baltimore? “Workin’ on de Railroad” Miller, who turned 54 years of age during the course of the trial, had been working on the railroad, not only “all de lib long day,” but since shortly after he was released from military service at twenty years of age.

He went to work for CSX (or its predecessor) in 1969, first as a signalman and then ¹⁴⁷ as a member of a track gang. All parties agree, however, that it is only his employment after 1978 that has pertinence to this case. It was in 1978 that Miller went into what he described as “train service.” From 1978 through 1984, Miller worked primarily as a road conductor. That job required him “to move trains from point A to point B on the mainline.” If a train were going from Baltimore to Philadelphia, for instance, it would stop at various places to pick up and to drop off railcars at various businesses and industries along the route.

Miller was heavily involved in the switching of railcars, as various railcars were either dropped off from the train or added to the train. As a road conductor, Miller had “to get on and off the train” on a number of occasions “for switches, picking up freight, if we had any emergencies.” He estimated that he walked “one or two miles a day” on large ballast or “road ballast,” defined as stones or rocks of between one inch and two and one-half inches in diameter. In 1984, Miller’s job changed from that of a road conductor to that of a yard conductor. As a yard conductor, Miller worked from approximately 1984 through 2002 in the five CSX rail yards in the Baltimore area.

The primary job was that of switching railcars from one track to another in order to put together or configure a proper train that would then move out on the main line. The work as a yard conductor entailed four types of physical activity: 1) walking between three and five miles a day on ballast; 2) mounting and dismounting both moving and stationary cars between 50 and 100 times a day; 3) squatting to throw 80-pound ball-handled switches 30 to 40 times a day; and 4) squatting to connect air hoses under the railcars between 40 and 50 times a day. Of particular significance was the fact that in the early 1980’s, the surface of the track walkways in or near the yards and the entire yards themselves was switched from small walking ballast, that is, cinders between 3/8" and 1" in diameter, to large ballast or road ballast. ¹⁴⁸ Miller’s Medical History Miller’s work, first as a road conductor and then as a yard conductor, ultimately took its physical toll. He developed osteoarthritis in both knees and, after a partial left knee replacement surgery, was unable to work at all after November of 2002.

The overt medical history in this case began on January 20, 1997, when Miller awoke with a swollen left knee. He went to the emergency room of the Johns Hopkins Bay-view Medical Center, where the knee was x-rayed. Miller testified as to the diagnosis, treatment, and aftermath. Q. What medical care were you given?

A. They x-rayed it. They come back out and told me that I had swelling in there, and they told me to go home and put ice packs on it, and if the swelling got any worse or burning in it, come back to the hospital. Q. Did you have any subsequent problem? A. No, sir.

Q. What happened to the swelling? A. It went away. Q. What happened to the pain? A. It went away.

Q. Did you miss any work? A. No, sir. (Emphasis supplied). He also testified to earlier pains in his knees, which he simply attributed to the aging process.

Q. Had you ever had a problem like that before? A. No, sir. ,Q. Had you had any pain prior to that in your knees? A. I thought it was growing pains, I mean, getting old pains, growing pains, whatever you call it. Q. Old Father Time? ¹⁴⁹ A. Yes, sir.

(Emphasis supplied). Following that January 20, 1997, visit to Bayview, the medical history was silent for three and one-half years. Neither before that time nor during that time had Miller missed a day’s work because of his knees. It was in August of 2000, when Miller was working at CSX’s Curtis Bay yard, that his knee “gave out” as he was getting ready to throw a switch and he started to fall but caught himself.

Miller went to his family doctor, Dr. Deepak Seth, who gave him a shot of cortisone. Miller returned to work. Because his knee, notwithstanding the cortisone, continued to bother him, Miller returned to Dr. Seth, who referred him to an orthopedic specialist, Dr. Douglas Shepard. Dr. Shepard diagnosed Miller as having osteoarthritis and, on August 16, 2000, performed an arthroscopy on Miller’s left knee.

After a brief recovery time, Miller returned to work and continued to work for the next two years, mainly on the road instead of in the yard. In the latter part of 2002, Miller returned to Dr. Shepard, who recommended a partial knee replacement and referred Miller to Dr. Thomas Whitten. Dr. Whitten performed the partial knee replacement on December 6, 2002. Miller did not return to work after that surgery.

Dr. Robert S. Widmeyer, an orthopedic specialist, later examined Miller and believed that Miller would unquestionably require a full knee replacement on his left knee and was at risk for requiring, at some point, a knee replacement of the right knee. The FELA Statute of Limitations CSX contends that Miller’s suit was time barred under the applicable statute of limitations. For a FELA suit, 45 U.S.C., § 56 provides: No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued. ¹⁵⁰ This claim was filed on August 13, 2001. For accrual purposes, the critical date, looking back three years, was August 13, 1998.

A. Accrual as a Matter of Law and Accrual as a Matter of Fact There were only three legal possibilities: 1) that the evidence that Miller had the requisite awareness as of 1998 was so clear, decisive, and unequivocal that Judge Nance should have decided the limitations issue in CSX’s favor, as a matter of law; 2) that the evidence was so clear, decisive, and unequivocal that Miller lacked the requisite medical awareness as of 1998 that Judge Nance should have decided the limitations issue in Miller’s favor, as a matter of law; or 3) that the issue, as is always statistically more likely, fell within that 80% bulge of the bell-shaped curve where there was some plausible evidence pointing in each direction. If that third possibility was the case, the resolution of the limitations issue was quintessentially a matter of fact and not a matter of law. We agree with Judge Nance that this question was, indeed, one of fact for the jury to resolve. B. An Interpretive Guide In evaluating limitations in a FELA context, Crisman v. Odeco, Inc., 932 F.2d 413 , 416 n. 2 (5th Cir.1991), lends guidance.

As for the standard used in evaluating FELA actions ... the standard is more lenient than that which applies in the ordinary action. (Emphasis supplied). C. Dramatic Accidents Versus Progressive Injuries With a progressive occupational injury or slowly worsening occupational disease or condition, such as, e.g., deafness, carpal tunnel syndrome, silicosis, or, as in this case, osteoarthritis, the accrual of a cause of action cannot be precisely pinpointed, as it easily can with a more dramatic physical accident. In Urie v. Thompson, 337 U.S. 163 , 69 S.Ct. 1018 , ¹⁵¹ 93 L.Ed. 1282 (1949), the Supreme Court addressed just such a gradually progressive and almost indiscernible decline.

In a FELA case where; an employee’s silicosis had been developing for arguably as long as 31 years, the defendant railroad asserted FELA’s three-year statute of limitations. The Supreme Court rejected the railroad’s mechanical analysis of the “accrual” of petitioner’s injury— whether breath by breath, or at one unrecorded moment in the progress of the disease. 337 U.S. at 169 , 69 S.Ct. 1018 . It quoted with approval, id, Associated Indemnity Corp. v. Industrial Accident Commission, 124 Cal.App. 378, 381 , 12 P.2d 1075, 1076 (1932), as that case distinguished, for accrual purposes, between a period of time and a point of time. “It follows that no specific date of contact with the substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently, the afflicted employee can be held to be ‘injured’ only when the accumulated effects of the deleterious substance manifest themselves.” 337 U.S. at 170 , 69 S.Ct. 1018 (emphasis supplied). D. United States v. Kubrick and the Discovery Rule In such cases of progressive trauma, the accrual date is determined by applying what has come to be called “the discovery rule.” Refined by United States v. Kubrick, 444 U.S. 111 , 100 S.Ct. 352 , 62 L.Ed.2d 259 (1979), the discovery rule fixes accrual at the time the plaintiff first becomes aware of both 1) the existence of an injury and 2) the cause of the injury.

United States v. Kubrick, supra, is the accepted authority on the accrual of a cause of action pursuant to the discovery rule. While Kubrick agrees that an action does not accrue until a plaintiff has the necessary awareness of the medical situation to know 1) that he has suffered an injury and 2) the cause of the injury, it further holds that accrual need not abide an awareness of the legal implications of the injury. A plaintiff, albeit not obliged to discover his medical condition, ¹⁵² is charged, once that medical condition is known to him, to explore its legal implications within the limitations deadline. The distinction is between ignorance of one’s medical condition and ignorance of its legal implications.

The law indulges the first, but not the second. The best explication of Kubrick is found in Dubose v. Kansas City Southern Railway Co., 729 F.2d 1026, 1029 (5th Cir.1984). In the five years prior to Kubrick, a few courts expanded the discovery rule to require that a plaintiff “know the legal implications of the facts, as well as the facts themselves, before the limitations period ... begin[s] to run.” In Kubrick, the Court disapproved of and cut back on the expanded discovery rule. ... The Court reiterated the Urie rationale behind the discovery rule and approved its application to cases where the fact of injury may be unknown or unknowable and where the facts of “causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain.” ...

While upholding the discovery rule as it had generally developed, the Court refused to eostend the rule so as to defeat the limitations statute’s “obvious purpose, which is to encourage the prompt presentation of claims.” (Emphasis supplied). Dubose reaffirmed that an action has not yet accrued when “a plaintiff is not aware of and has no reasonable opportunity to discover the critical facts of the injury and its cause.” 729 F.2d at 1030 . With respect to the discovery rule, we find the decision of the Missouri Court of Appeals in Rogers v. Illinois Central Railroad Co., 833 S.W.2d 426, 427-28 (Mo.App.1992), not only highly persuasive but lucidly explanatory. In FELA occupational disease cases, a “discovery” rule has evolved.

When 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. ¹⁵³ The rule was refined by the United States Supreme Court in United States v. Kubrick. Kubrick held that a plaintiffs claim accrues at the time that plaintiff first becomes armed 'with the critical facts of both the existence and the cause of his injury, regardless of whether plaintiff is then aware that these facts constitute legal negligence. We have held that an occupational disease claim 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. (Emphasis supplied).

That opinion also drew an insightful distinction between the standards of “could have known” and “should have known.” The issue of when plaintiff knew or should have known of his injury and its cause is a question of fact for the jury. In the case of actual knowledge, the cause of action accrues when the character of the condition and its cause first “c[o]me together” for the plaintiff. The “should have known” test is not narrowly confining. The test is not a “could have known” test.

Rather, it requires a very substantial common-sense likelihood that a reasonably careful person would discover the existence of the injury and its cause. 883 S.W.2d at 428 (emphasis supplied). E. Knowledge of Injury and Knowledge of Cause In Kubrick , the Supreme Court made it clear that there are three areas of knowledge that are of critical significance on the limitations issue. They are 1) knowledge of the existence of an injury; 2) knowledge of the cause of the injury; and 3) knowledge of the legal significance of the injury. The Supreme Court posed the question before it.

The issue in this case is whether the claim “acames” within the meaning of the Act when the plaintiff knows both the existence and ths cause of his injury or at a later time when he also knows that the axis inflicting the injury may constitute medical malpractice. ¹⁵⁴ 444 U.S. at 113 , 100 S.Ct. 352 (emphasis supplied). The Court made it clear that the accrual of a cause of action does not depend on the third area of knowledge (legal significance) but does depend on the congruence of the first two (existence of injury and cause of injury). The injury to the patient in Rubrick was a loss of hearing. The cause of the injury was erroneous treatment with an antibiotic drug known as neomycin.

The legal significance was that the doctor who administered the neomycin might have been liable for medical malpractice. The Supreme Court held that Kubrick’s cause of action accrued in January of 1969 when he had become aware of “both his injury and its cause.” 444 U.S. at 120 , 100 S.Ct. 352 . As of that time, he had both 1) been diagnosed with bilateral nerve deafness and 2) been informed that “it was highly possible that the hearing loss was the result of the neomycin treatment administered at the hospital.” 444 U.S. at 114 , 100 S.Ct. 352 . The Court regularly referred to these threshold awarenesses in the plural.

It is undisputed in this case that in January 1969 Kubrick was aware of his injury and its probable cause. 444 U.S. at 118 , 100 S.Ct. 352 (emphasis supplied). The Supreme Court reiterated that “since he was aware of these essential facts in January 1969,” the cause of action accrued at that time and did not need to await his learning, two years later, that “the neomycin irrigation treatment had been improper.” 444 U.S. at 121 , 100 S.Ct. 352 . The medical awareness and the legal awareness were two distinct things subject to two distinct treatments. We are unconvinced that for statute of limitations purposes a plaintiffs ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. 444 U.S. at 122 , 100 S.Ct. 352 (emphasis supplied).

For present purposes, the analogue to Kubrick’s awareness of deafness would have been Miller’s awareness of osteoarthritis. The analog to Kubrick’s awareness that the deafness had been caused by neomycin would have been Miller’s awareness ¹⁵⁵ that the osteoarthritis had been caused by walking on large ballast. There was, at the very least, evidence indicating that Miller was not yet aware of both of those facts as of August 13, 1998, and arguably was not aware of either of them. On the limitations issue in this case, the critical question is whether Miller, as of August 13, 1998, 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.

The accrual of the action, on the other hand, did not depend on his awareness that CSX might be liable in negligence for having laid down that ballast trail. F. Two Degrees of Knowledge: “Knew” Versus “Should Have Known” We can narrow the issue before us to some extent. From the litany of “knew or should have known,” we can quickly eliminate the first prong. As to whether there was some evidence to support the conclusion that Miller did not actually know he had osteoarthritis as of January of 1997, the answer is easy.

Miller testified that he did not know. That, ipso facto, was enough to take the question of actual knowledge to the jury. The rest of the evidence on that sub-issue was surplusage. The real sub-issue is whether there was any evidence to permit a reasonable inference that Miller was NOT in possession of such knowledge as to compel the conclusion that he should have known that 1) he had osteoarthritis of the knees 2) caused by his on-the-job walking on large ballast.

G. The Critical Hospital Visit of 1997 Fixing on Miller’s state of awareness prior to August 13, 1998, our attention necessarily turns to the circumstances surrounding his visit to the Bayview Medical Center on January 20, 1997. The significance of Miller’s 1997 visit to Bay-view, of course, is that it was before the critical accrual frontier boundary of August 13, 1998. If the action had ¹⁵⁶ accrued as of that 1997 visit to Bayview, this FELA suit would have been time-barred. If, on the other hand, the action did not accrue as of the visit to Bayview, this suit was timely filed within the three-year limitations period.

Nothing of any medical significance happened between the two milestones of January of 1997 and August of 2000. If the accrual of the cause of action did not occur in 1997, then it did not occur until 2000 and there is no limitations problem. Our attention, therefore, remains glued on January of 1997. Miller testified that he went to the emergency room at Bayview because he awoke one morning and his left knee was swollen.

A doctor x-rayed the knee and then came “back out and told me that I had swelling in there, and they told me to go home and put ice packs on it, and if the swelling got any worse or burning in it, come back to the hospital.” Miller, as directed, went home and put on an ice pack. The swelling went away; the pain went away; and Miller went back to work. Miller further testified that he had never had a problem like that before. Whatever aches or pains he had ever felt in his knees, he attributed to the inexorable ravages of aging.

The medical record of Miller’s visit to Bayview completely corroborated Miller’s testimony. The “History and Physical Findings” recited: 47 years old. Came to the emergency room complaining of a painful left knee. Recalls no trauma.

Awoke today with pain and swelling. No history of arthritis. (Emphasis supplied). Bayview’s diagnosis was that Miller had a “knee strain and knee effusion.” The treatment prescribed was to use ice and to put an elastic bandage on his knee.

Bayview gave him a prescription for anti-inflammatory medicine. There was in the file an x-ray, with a note on the left-hand side reading “Left knee, no fracture and few osteophytes.” One of the expert witnesses on the issue of causation, Dr. Robert S. Widmeyer, also testified that when he later took a medical history, Miller described his visit to Bayview in 1997. ¹⁵⁷ Q. Could you tell us what the medical history was in relation to the 1997 emergency room visit, if you could, sir? A. He had not had, any previous problems with his knees before and he just woke up and couldn’t move his knee because it hurt so bad and it swelled up, so he went to the emergency room. And he thought he was getting oldsr; and from what I can gather from the emergency room, they just told him he had a sprain, and he ought to put the ice and Ace wrap on it, and he would be okay.

Then he went back to work. (Emphasis supplied). Immediately after his visit to Bayview, Miller did go back to work and he did not miss a day’s work for the next three and one-half years. H. The Unseen X-ray To be sure, two days after Miller left Bayview, an x-ray report was prepared which recited as its impression: “osteoarthritis.” Miller, however, never saw that report and was never informed about it.

Sternly pressed on cross-examination about the x-ray impression, Miller maintained his position that he thought his knee problem had satisfactorily resolved itself. Q. What did you understand from your visit to Bayview Medical Center was wrong with you? A. A sprain and fluid on my knee. Q. Was an x-ray taken?

A. To my knowledge, it was, but I never seen it. Q. Why have you never seen the x-ray, Mr. Miller? A. Because when they released me, they told me to put ice on it, go home and take aspirin; if I had any further problems, go to my family doctor. Q. But it’s true, Mr. Miller, the you have never inquired as to what that x-ray showed; is that correct?

A. That’s correct. I never had any more problems. Q. Has anybody made you aware of the contents of the x-ray? ¹⁵⁸ A. No, they haven’t. (Emphasis supplied).

CSX purports to be aghast at Miller’s failure to have called Bayview back and to have insisted on learning what impression, if any, was made of his x-ray. CSX strongly suggests, without quite saying so, that under the “should have known” standard, Miller should be charged with the knowledge of that impression. As it then proceeds to pose the accrual issue, CSX, without so much as a “by your leave,” treats Miller’s state of self-awareness as, indeed, charged with such knowledge. CSX 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, always sensitive to the chance of a Congressional investigation. It is, at the very most, no more than a jury question, however, whether any such psychic imperative burns in the breast of the reasonable railroad worker. The reasonable railroad worker, to the extent that he thinks about it at all, might well be content to believe that a satisfactory x-ray result has been implicitly folded into the diagnosis, the prescription, and the presumptively final discharge that Bayview gave him. We are not suggesting that, even had Miller been informed of the x-ray impression, an awareness of osteoarthritis would ipso facto trigger an awareness that the osteoarthritis had been caused not by old age, but by years of walking on large or mainline ballast.

I. Not a Jury Question At Least, But a Jury Question At Most Our review of the evidence satisfies us that there was, at most, a jury question as to whether Miller’s awareness of the medical situation was such that the cause of action accrued in ¹⁵⁹ January of 1997, to wit, before August 13, 1998. To the extent to which we might harbor any tinge of doubt about the existence of a genuine jury question, moreover, our tilt would be decidedly toward a ruling, as a matter of law, in favor of Miller and not toward a ruling, as a matter of law, in favor of CSX. Whether there might have been a ruling in favor of Miller, as a matter of law, however, is a moot point, for whatever arguably should have been done as a matter of law was done as a matter of fact. As one of five distinct issues submitted to it, the jury was asked: “Do you find by a preponderance of the evidence that the plaintiff, Donald E. Miller, knew or should have known of his degenerative knee condition on or before August 13, 1998?” The jury answered, “No.” CSX professes deep chagrin that Judge Nance did not give more significance to the fact that Miller, on his visit to Dr. Shepard in June of 2000, acknowledged having felt pain in his knees off and on since the early 1990’s.

The way in which the trial unfolded, however, suggests that Judge Nance did give significance to that earlier complaint. That evidentiary shred seems to us to have the only thing that qualified CSX even to take the limitations issue to the jury. Without it, Judge Nance might well have granted a judgment on limitations in favor of Miller, as a matter of law. That reprieve from a forfeit, moreover, was no mean victory for CSX.

It was given a fighting chance on the limitations issue in front of the jury. To lose on the playing field of fact-finding is always preferable to suffering a forfeit before the game is even allowed to begin. CSX would make far more of that shred of evidence than it deserves. It would like that earlier and very generalized complaint about knee pain to be deemed absolutely dispositive of the accrual issue in its favor.

It fails to acknowledge the chasm of difference between the quantum of evidence that permits a conclusion and the uncontradicted mass of evidence that compels a conclusion. The critical difference between generating a permitted inference of possible awareness, as a matter of fact, and the ¹⁶⁰ overwhelming case that will compel such a conclusion, as a matter of law, is well illustrated by Gay v. Norfolk and Western Railway Co., 253 Va. 212 , 483 S.E.2d 216 (1997). The defendant railroad in that case argued that the cause of action in that case accrued at the time the plaintiff both knew that he had an injury and also “suspected” that the cause of his injury was the inhaling of toxic fumes while on the job. The Supreme Court of Virginia held that even a suspicion as to the cause of the injury might be enough to permit such a conclusion, as a matter of fact, but was not enough to compel such a conclusion, as a matter of law.

The Virginia Supreme Court held: N & W argues that the trial court correctly held that Gay’s cause of action accrued in 1989 when he was diagnosed with leukemia because Gay testified that, at that point, he suspected his leukemia was caused by inhalation of diesel fumes.... An employee’s mere suspicion of an injury or its probable cause, standing alone, is not the operative standard for determining when a cause of action accrues under FELA. 483 S.E.2d at 219 (emphasis supplied). The opinion concluded that the question of whether that which is suspected is tantamount to that which should have been known is quintessentially a jury issue. [I]f reasonable persons could disagree about when Gay “knew or should have known” that his injury was work-related, the issue should be submitted to the jury. It is improper, however, to resolve the issue solely on the basis that an employee suspected that his illness was work-related.

Id. (emphasis supplied). On slender evidence in this case, CSX got the benefit of having the limitations issue treated as a jury question. It may have gotten more than it deserved.

It certainly was not entitled to anything more. ¹⁶¹ Preclusion by the Federal Railroad Safety Act (FRSA) Immediately prior to the commencement of the trial, CSX moved for summary judgment in its favor on the ground that one of the Track Safety Standards, 49 C.F.R. § 213.103 , promulgated by the Federal Railroad Administration (FRA), an agency created by the Federal Railroad Safety Act (FRSA), 2 touches the subject of ballast and has, therefore, “preempted” any common law tort principle, any state law, any industry regulation, or any internal railroad regulation dealing with ballast. CSX’s position is that if its use of large ballast does not violate the Track Safety Standards of the FRA, no FELA suit predicated on its use of large ballast can even be litigated against it. Judge Nance denied CSX’s motion for summary judgment on that ground. A. For a FELA Claim, the Risk is Preclusion, Not Preemption CSX’s motion for summary judgment was not based on preemption, although it was so styled, and it is a misuse of language to discuss the contention in terms of preemption.

The preemption doctrine grows out of the Supremacy Clause, Article VI of the United States Constitution, which provides: This Constitution, and the laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. Preemption has to do only with the federal-state relationship. If the national Congress, with authority to do so, as when regulating interstate commerce, passes a statute effectively covering a subject, that national law, pursuant to the Supremacy Clause, preempts any state law or state statute. A FELA suit, however, is not an action pursuant to state law but one pursuant to the Federal Employers’ Liability Act of ¹⁶² 1908.

It is, by definition, federal and, therefore, not subject to preemption. Elston v. Union Pacific Railroad Co., 74 P.3d 478, 486 (Colo.App.2003), points out the difference between a federal-state conflict and a federal-federal conflict. The vast majority of cases addressing locomotive-related accidents involve a state law claim and a federal claim for violation of the FRSA. In that posture, it is necessary to employ a preemption analysis.

Here, however, we are presented with the interaction of two federal statutes, and thus, preemption in its constitutional sense does not apply. (Emphasis supplied). The FRSA has its own built-in preemption clause, 49 U.S.C. § 20106 , providing that any FRSA-authorized regulations which cover the field will preempt any state law or statute in that field. Grimes v. Norfolk Southern Railway Co., 116 F.Supp.2d 995, 1000 (N.D.Ind.2000), explains how that preemption clause applies to state laws.

To facilitate the goal of national uniformity the FRSA has a preemption clause specifically relating to state law which provides that states may regulate railroad safety “until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.” (Emphasis supplied). This is not to say that one federal statute may not have an overriding impact on another federal statute. The impact, however, is by virtue of a process other than federal-state preemption. If a railroad, for instance, has done everything that it is enjoined to do by the Locomotive Inspection Act (LIA), formerly known as the Federal Boiler Act, or by the Federal Railroad Safety Act, passed in 1970, the railroad may not be held liable in a FELA suit for conduct which the more specific federal act has expressly and specifically deemed to be acceptable.

The legal event triggered by a superseding statutory provision, however, is issue preclusion, not preemption. ¹⁶³ CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 , 113 S.Ct. 1732 , 123 L.Ed.2d 387 (1993), was a case in which a provision of the FRSA was held to have covered the field of train speeds and, therefore, to have preempted a Georgia state statute. Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344 , 120 S.Ct. 1467 , 146 L.Ed.2d 374 (2000), was a case in which a provision of the FRSA was held to have covered the field of warning devices at crossings and, therefore, to have preempted a Tennessee state tort claim. Both cases were classic applications of federal-state preemption law. Easter-wood and Shanklin established two clear areas wherein FRSA regulations covered the field and, therefore, preempted state law.

Grimes v. Norfolk Southern, supra, 116 F.Supp.2d at 1000 , summarized: In cases brought under state law, the Supreme Court has found two areas, speed regulations and warning signs at grade crossings, where federal regulations pursuant to FRSA have “covered” the field such that any attempts at state regulation inconsistent with the federal regulations are preempted. (Emphasis supplied). The problem of loose language seems to have stemmed from several cases interpreting Waymire v. Norfolk and Western Railway Co., 218 F.3d 773 (7th Cir.2000), a case in which a FELA claim was brought on the same grounds of 1) excessive speed and 2) an unsafe crossing that had led to the preemption holdings in Easterwood and Shanklin . Although the federally-based FELA charge could not, by definition, be preempted, it was, by analogy to those preemption cases, held to have been superseded or precluded.

Waymire itself was careful, 218 F.3d at 775 , to use the language of preclusion and not of preemption. Subsequent cases, however, began to speak broadly of Waymire as having “extended the Easter-wood and Shanklin rulings” to FELA cases, implying that it extended the reach of preemption. As a consequence, several federal cases speak the language of “preemption” even when talking about federally-based FELA cases. In re: Amtrak “Sunset Limited” Train Crash, 188 F.Supp.2d 1341 , 1348 ¹⁶⁴ (S.D.Ala.2000); Major v. CSX Transportation, 278 F.Supp.2d 597, 608-09 (D.Md.2003).

Elston v. Union Pacific, supra, 74 P.3d at 486-87 , has more carefully explained that, although as a practical matter the result may be the same, a FELA case may be superseded, but it is not preempted. [T]hat court [Waymire ] determined FELA is superseded by the FRSA to the same extent that the FRSA preempts state law, and that liability may not be imposed under either when railroads have complied with FRSA requirements. (Emphasis supplied). In framing the argument before it, Grimes v. Norfolk Southern, supra, 116 F.Supp.2d at 1000-01 , was very careful to pose the issue in terms of preclusion, rather than preemption. Under NSRC’s interpretation of Waymire, compliance with these regulations precludes the Plaintiffs negligence suit and essentially makes it immune to FELA suits arising out of accidents that occur when employees in the course of their employment must find a place to walk down the railroad right-of-way.

(Emphasis supplied). Rice v. Cincinnati, New Orleans & Pacific Railway Co., 955 F.Supp. 739, 740 (E.D.Ky.1997), was meticulously careful about its doctrinal vocabulary. Because this case is based on the FELA the court is not faced with a typical preemption issue. In considering this motion, however, the court must reconcile the two federal statutes.

To the extent that they are inconsistent, the FRSA will supersede the FELA based on the policy embodied in the FRSA to ensure uniformity in law pertaining to railway safety. (Emphasis supplied). To be sure, the practical result may be the same. The difference in the use of terms may only be a difference between practicality and academic purity, but those who casu ¹⁶⁵ ally abandon academic purity can never know where the next walk around the block may unexpectedly lead.

We shall speak in this case about preclusion, not preemption. B. The Analogy to Preemption Law Is Nonetheless Apt In terms of the actual preclusive impact that a precise provision of a federal statute, such as one under the FRSA, might have on a FELA claim, the analogy to preemption law is nonetheless an apt one. The Waymire case, 218 F.3d at 775 , has explained: The vast majority of courts examining lawsuits arising out of automobile/train collisions do so under state law. Thus, the courts employ a preemption analysis.

We do not do so here, as we are instead faced with the interaction of two federal statutes. But, we find the opinion of the Supreme Court on the subject of the preemption of unsafe train speed claims to be instructive. (Emphasis supplied). Rice v. Cincinnati, New Orleans & Pacific, supra, 955 F.Supp. at 741 , has similarly pointed out: fT/his is not a state law case; the FELA is the sole remedy for this plaintiff.

However, the same rationale that supports preemption of an unsafe speed argument in a state law case also indicates that speed regulations adopted pursuant to the FRSA should supersede an unsafe speed argument in this FELA case. (Emphasis supplied). Elston v. Union Pacific, supra, 74 P.3d at 486 , agrees. [Ijhe cases addressing the question whether the FRSA 'preempts state law railroad injury claims are instructive in determining whether plaintiffs FELA claim for negligence is precluded by the FRSA. (Emphasis supplied).

C. The Alleged Basis For Preclusion The FRSA has authorized the Federal Railroad Administration to promulgate Track Safety Standards. The only such standard remotely touching on the present case is 49 C.F.R. ¹⁶⁶ § 213. Subsection 213.101 sets out the scope of the regulation: This subpart prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical condition of rails. (Emphasis supplied).

Subsection 213.103, “Ballast; general,” then provides: Unless it is otherwise structurally supported, all track shall be supported by material which will— (a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade; (b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails; (c) Provide adequate drainage for the track; and (d) Maintain proper track crosslevel, surface and alignment. (Emphasis supplied). There is no other FRSA or FRA regulation that even mentions the word ballast. At one point in its brief to this Court, CSX succinctly sets out its preclusion argument.

There are no other regulations in 49 U.S.C. §§ 20101 et seq., or 49 C.F.R. §§ 213 et seq. which deal with ballast, and none prescribe a particular size ballast to be used in the walking areas of the yard to enhance worker safety. The federal government had an opportunity to enact additional regulations as to size and location of ballast within the yard, but declined to do so. The clear implication from the absence of more specific regulations is that none have been deemed necessary by the federal government to ensure the safety of railroad employees working around ballast. Thus, as long as a railroad’s ballast complies with 49 C.F.R. § 213.103 , it meets federal safety standards.

(Emphasis supplied). D. The FRSA Does Not Preclude This FELA Suit We agree with Judge Nance that 49 C.F.R. § 213 did not preclude this FELA suit and that CSX’s motion for ¹⁶⁷ summary judgment based on preclusion (“preemption”) was properly denied. Even a surface glance at the FRSA regulation relied on by CSX persuades us that it does not touch, let alone pervasively cover, the railroad yard conditions that allegedly fell short of the safe and healthy workplace environment that CSX was obligated to provide for its employees. The regulation is concerned with the track and its immediately adjoining area and not with railroad yards.

The obvious concern, moreover, is with the safety of the train, the prevention of derailments, and not the quality of the work place provided for employees. That important distinction was noted in Southern Pacific Transp. Co. v. Public Utilities Comm’n, 647 F.Supp. 1220, 1225 (N.D.Cal.1986), aff'd, 820 F.2d 1111 (9th Cir.1987): The ballast regulations ... are designed to insure that tracks have adequate support. ... No FRA regulation addresses the concern that employees have a safe working environment near railroad tracks.

(Emphasis supplied). Elston v. Union Pacific, supra, 74 P.3d at 488 , noted that, even with respect to walkways alongside the track: [tjhese standards are directed at promoting a safe roadbed for trains, but offer no indication whether a railroad has a duty to provide safe walkways for employees alongside its tracks. (Emphasis supplied). We have found two cases that deal with whether the FRSA, or any other federal regulation, precludes a FELA action based on a claim that a defendant railroad failed to provide a safe walking surface for employees.

In Grimes v. Norfolk Southern Railway Co., supra, the plaintiff was injured when he fell into a hole as he, in walking along beside the tracks, was forced to walk well out beyond the track bed. He had been forced out to that distance because “on the area directly adjacent to the track” there were “large stones used in the ballast [that] rolled under his feet.” 116 F.Supp.2d at 998 . ¹⁶⁸ One of the plaintiffs claims concerned that walking area immediately adjacent to the tracks: The Plaintiffs second claim is that the railroad was negligent in failing to provide a safe walkway for employees to use when they must walk alongside the train to inspect the cars. 116 F.Supp.2d at 1002 . Norfolk Southern there, as CSX here, moved for summary judgment on the ground that the FRSA regulation dealing with track beds and ballast covered the field and precluded any FELA claim. The defendant claimed, as does CSX here, that its compliance with 49 C.F.R. 213.103 was dispositive.

NSRC alleges that it is in compliance with all these regulations, therefore it cannot be held liable for negligently inspecting the track or for failing to provide a safe walkway. 116 F.Supp.2d at 1002 . The federal District Court pointed out, as we have ourselves observed, that the FRSA regulations were concerned with “a safe roadbed for trains and not a safe walkway for railroad employees.” The court flatly rejected the preclusion argument. 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.

In view of the fact that this railroad requires its employees to perform numerous trackside inspections of its trains for various reasons, this Court declines to find anything in the regulations cited by the Defendant that precludes this Plaintiff from asserting that the railroad was negligent for failing to provide a safe place to walk. There is also nothing in the language or legislative history of any enactment, including FRSA, that indicates the seri ¹⁶⁹ ous purpose of undermining the basic core of FELA and its essential purposes. 116 F.Supp.2d at 1002-03 (emphasis supplied). Elston v. Union Pacific, supra, was also a case in which the plaintiff alleged that his knee injury resulted from the railroad’s failure to provide a safe walking surface. He then slipped and fell on the steeply pitched, snow-covered roadbed structural material, called “ballast,” and thereby suffered injury to his right knee.

Plaintiff subsequently filed this lawsuit alleging that defendant was negligent under FELA for: (1) failing to provide reasonably safe walkways alongside its mainline tracks.... 74 P.3d at 481 . The Union Pacific there, as CSX here, moved for summary judgment on the ground that 49 C.F.R. § 213.103 precluded the FELA claim. The trial judge agreed. [T]he trial comt determined that the regulations under other federal statutes preempted plaintiffs FELA claim that defendant failed to provide its employees with a reasonably safe walkway alongside its railroad line. Id.

(emphasis supplied). The Colorado Court of Appeals reversed the trial court. It began its analysis by pointing out the railroad’s obligation to provide a safe work place. Under FELA, a railroad employer is required to provide its employees with a reasonably safe place to work. 74 P.3d at 482 .

On the preclusion issue, it summarized both the plaintiffs and the railroad’s positions. [PJlaintijf asserts that the FRSA’s track safety standards do not cover the subject matter of safe walkways and, thus, do not preclude a FELA claim on this basis. Defendant argues that ... the trial court correctly determined that plaintiffs claim was precluded because defendant has complied with the FRSA’s detailed regulations concerning ballast and track structure and the track safety standards cover the issue of walkways. ... We agree with plaintiff. ¹⁷⁰ 74 P.3d at 485 (emphasis supplied). The Court of Appeals explained initially that, to “cover” a subject, a regulation must do more than “touch upon” it. [T]he first issue is whether the FRSA covers the subject matter of railroad walkways.

To prevail on a claim that the FRSA has preemptive effect, the FRSA regulations must not merely touch upon or relate to the subject matter, but must substantially subsume it. 74 P.3d at 486 (emphasis supplied). The opinion pointed out that federal regulations have been deemed preclusive in the two areas of 1) warning signs at grade crossings and 2) train speed regulations, but that they have not addressed walkways. Unlike the issues of excessive speed and inadequate warning devices that are expressly covered in the FRSA, the issue of walkways is not explicitly addressed in the federal safety regulations. 74 P.3d at 487 (emphasis supplied). If even walkways alongside the tracks are not covered, a fortiori, the walking surface throughout a railroad yard is not covered.

The conclusion of the Colorado Court of Appeals on preclusion is equally dispositive of CSX’s claim before us that its compliance with the FRSA safety standard immunizes it from the FELA suit. Nothing in the language of the FRSA conflicts with or undermines the primary function of FELA. Rather, the purpose of the FRSA, to promote safety in all areas of railroad operations and reduce railroad related accidents, is consistent with the goal of FELA, to promote employee safety and hold railroads liable for injuries caused by their negligence. We disagree .with defendant that its alleged compliance with the FRSA’s track safety standards precludes a finding of negligence under FELA.

Because walkways are not covered by the FRSA, whether defendant complied ivith these regulations is immaterial in determining whether a ¹⁷¹ reasonable person in defendant’s situation would have provided walkways alongside its tracks. 74 P.3d at 488 (emphasis supplied). At the summary judgment argument before Judge Nance, CSX candidly admitted that it was swimming upstream on this issue. I will not mislead the Court to say that the issue I’m about to discuss has not been decided, adversely against the Railroad. ... [Miller’s attorneys] have quite rightly included a couple of trial cowii decisions that say, no, the ballast claim is not, preemptive. CSX respectfully disagrees with those decisions and believes that our analysis of the issue is superior to that employed by those courts.

(Emphasis supplied). E. Negative Preclusion Acknowledging that the FRSA has not promulgated any regulation with respect to the walking surface of railroad yards generally or, even out on the track bed, with respect to ballast size, CSX insists that the FRSA could have so regulated if it wished to. Before Judge Nance, CSX argued: Now, they haven’t. As of this date, they haven’t, but they could and they’ve looking into it.

They’ve decided not to. (Emphasis supplied). From that unused authority, CSX weaves the web of “negative preemption.” CSX would infer from the failure of FRSA so to regulate, an affirmative decision that further regulation was both unnecessary and inappropriate. In its brief to this Court, CSX reiterates this notion of negative preemption or preclusion.

Furthermore, it is clear that the federal government could, if it wanted, to, regulate ballast size. In that regard, the Federal Railroad Administration (FRA) has promulgated specific Track Safety Standards which establish certain requirements for ballast. [T]here is nothing in the Track Safety Standards that mandates the use of a particular size ballast, or which ¹⁷² correlates a certain size ballast with employee safety. Nonetheless, Miller sought to hold CSX liable for not exceeding the safety requirements set by the. CSX submits that it has no such duty, and that Miller’s negligence claim is preempted by the federal regulations.

As long as CSX complies with the ballast standards set forth in the FRA Track Safety Standards, no action for “unsafe” ballast will lie against CSX. (Emphasis supplied). Elston v. Union Pacific, supra, considered the idea of negative preemption in precisely this same context. After pointing put that “there is a presumption against preemption,” it squarely rejected the notion that the failure of the FRSA to regulate ballast size or to prescribe surface conditions for railroad yards represented any sort of negative preemption or preclusion so as to bar FELA suits.

Alternatively, defendant asserts that even if the FRSA does not cover the subject matter of safe walkways, its failure to include the matter in the track safety standards negatively preempts plaintiffs FELA claim. Again, we disagree. Negative preemption occurs “where failure of ... federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute.” Negative preemption requires an “authoritative federal determination that [an] area is best left unregulated.” Here, defendant has failed to point to a clear congressional directive that would lead us to interpret the FRSA track safety standards as precluding plaintiffs FELA claim. In fact, defendant has failed to adduce any evidence that the FRA, in promulgating the track safety standards, even considered the issue of safe walkways for railroad employees. 74 P.3d at 488 (emphasis supplied).

See also Sprietsma v. Mercury Marine, 537 U.S. 51 , 123 S.Ct. 518 , 154 L.Ed.2d 466 , ¹⁷³ 478-82 (2002) (referring to negative preemption as implied preemption). F. A Decoy Subcontention As a subcontention on the preclusion issue, CSX, out of thin air, conjures up a “straw man” and then knocks it down. To be sure, as Miller described his on-the-job physical activity over a period of years, he included the fact that he mounted and dismounted both moving and stationary cars between 50 and 100 times a day. Seizing upon the reference to railway cars, CSX asserts that any part of Miller’s osteoarthritis claim attributable to mounting and dismounting railroad cars has been precluded by both the Safety Appliance Act (SAA) and the Federal Motor Carrier Safety Administrative Act (FMCSAA).

The argument is that regulations of those two agencies dealing with 1) sill steps and ladders on railway cars and 2) the distance between steps on those cars have been fully complied with and that a claim based on alleged violations of those regulations is barred. CSX argues: [AJny FELA claim made by plaintiff linking climbing an and off rail cars as contributing to Miller’s knee osteoarthritis and meniscal tear is equally unavailing. As with the ballast claim, this claim is preempted. Pursuant to 49 U.S.C. §§ 20801 et seq. of the Safety Appliance Act, standards have been set forth addressing sill steps and ladders.

Additionally, 49 C.F.R. § 399.207 (b)(2)(h) of the Federal Motor Carrier Safety Administration establishes height requirements between the ground and the first sill step of a commercial motor vehicle. Once again, so long as CSX’s railcars conform to those standards, no claim may succeed based upan injuries alleged to be caused by sill steps and ladders. (Emphasis supplied). The subcontention is so much smoke and mirrors.

The FELA claim was not “based upon injuries alleged to be caused by sill steps and ladders.” The critical element of the claim was never the nature of the sill Miller stepped up onto as he ¹⁷⁴ mounted railway cars but the nature of the ground he stepped down onto as he dismounted those cars. Confining ourselves to the dismount, the critical factor is not whence he stepped but whither he stepped. The evidence was that earlier in his employment, Miller had to mount and dismount trains that were moving at between two and five miles per hour, although at a later time the mounting and dismounting was confined to stationary railway cars. The evidence was that jumping from even a slowly moving train significantly increased the pressure or strain on ankles and knees.

In either event, the existence of sills and the distance between steps had absolutely nothing to do with the impact of either stepping or jumping onto the ground. The negligence alleged was CSX’s covering of that ground with large ballast, which would cause a foot or ankle to roll when landing on it. The sills and steps of the railway car had nothing to do with the nature of the surface onto which the employee would step or jump. The two regulations now being raised are so absolutely immaterial to the FELA suit in issue as to be self-evidently non-preclusive.

Legal Sufficiency of the Evidence: Proof of Causation At the end of the entire case, CSX moved for judgment. It first renewed its earlier motions for judgment on the basis of 1) limitations and 2) “preemption.” Then, in challenging the sufficiency of the evidence to establish its FELA liability, CSX clearly confined the challenge to the single issue of causation. We renew our motion that the plaintiff has failed to make out a prima facie case because plaintiff has presented no competent evidence of a general causal association between plaintiff’s work activities and plaintiff’s resultará injury. (Emphasis supplied).

At the outset of arguing this contention in its appellate brief, CSX again clearly confined the legal sufficiency challenge to the issue of causation. ¹⁷⁵ As a matter of law, Miller failed to produce sufficient evidence by way of expert testimony that his osteoarthritis was a remit of working on the walking surfaces in the CSX railyards. (Emphasis supplied). This framing of the contention does narrow the necessary breadth of our review. CSX does not challenge the sufficiency of the evidence to show that it was negligent when, in the early 1980’s, it replaced the soot, dirt and cinders that had covered the surface of its railroad yards in the Baltimore area with large mainline ballast.

CSX similarly does not challenge the sufficiency of the evidence to show that it was able to foresee that the use of the large mainline ballast could be injurious to the feet, ankles, legs and/or knees of the employees who had to walk regularly on that large mainline ballast. The only fact in issue is the cause-and-effect relationship between walking on mainline ballast for an extended period of time and osteoarthritis of the knees. Before turning to the three expert witnesses whom CSX particularly challenges, we shall summarize briefly the other and non-expert testimony bearing on causation. Miller himself testified to 1) the amount of walking, 2) the mounting and dismounting of railway cars, 3) the throwing of switches, and 4) the squatting to attach airhoses that he had been doing since 1984.

He testified to the use of mainline ballast in the yards beginning in the early 1980’s. He testified to the pains and aches in his knees beginning in the early 1990’s and gradually getting worse until his knee replacement surgery in 2002. William Reed, a 28-year veteran with CSX or its predecessors, testified that he worked in the Baltimore area railroad yards just as Miller did. He testified that he, like Miller, was required to mount and dismount railway cars that were moving at between four and ten miles per hour, until the early 1990’s when mounting and dismounting was confined to stationary cars.

He described the impact from dismounting a moving railway car. ¹⁷⁶ Q. Could you describe to them what it was like when your feet made contact with the large ballast in getting off moving equipment? A. Your ankle would turn a little and your knee would twist a little, and you would get a jolt. (Emphasis supplied). He also described the difference between walking on small ballast and walking on large ballast.

Q. Could 'you describe to the jurors the difference between walking on the large ballast or the main line ballast and the walking ballast, Mr. Reed? A. Walking on the large ballast is stressful on your legs. You get tired. On the small ballast, it’s more like walking on the sidewalk.

It’s easier to walk on and less stressful. (Emphasis supplied). Reed also recounted how he had complained to his supervisors about the large ballast “about 20, 30 times.” By agreement of the parties, it was stipulated that another employee of the CSX railroad yards in the Baltimore area, a Mr. Spencer, would testify to the same effect that Reed had testified to. The testimony of Miller and Reed and the stipulated testimony of Spencer all support the conclusion, direct or inferential, that walking or jumping on mainline ballast is a cause that produces an effect of more than ordinary strain on the lower legs, ankles and knees of the yard employees.

Ray Duffany, a graduate civil engineer and the former Chief of Maintenance for the Grand Trunk Railroad, was accepted as an expert witness on railway operations and safety. He testified about industry standards as promulgated by the American Railway Engineering Association (AREA). He testified as to the different ballast standards for tracks and for yards. [I]f you were looking at it strictly from an engineering standpoint, you would want the larger ballast in all tracks. However, because there is a lot of toalking done in the yards, the AREA has formulated standards that are smaller and the purpose of having the smaller ballast is to ¹⁷⁷ provide a reasonably safe workplace for employees who are working in yards around moving heavy equipment.

(Emphasis supplied). Duffany recounted how, during a two-year period with the Grand Trunk, an experimental use of large ballast in the yards was found to have resulted in “a significant increase in injuries to yard workers.” I worked for the chief engineer and he had changed the ballast standard from the small ballast that was in existence prior to 1989 on the Grand Trunk to using large ballast. For approximately two years, at his direction, we put the big ballast in [many] of the yards that we worked and we experienced a significant increase in injuries to yard workers. (Emphasis supplied).

Duffany also testified that CSX itself had an operating rule, effective since 1975, that only small ballast be used “for yard use or at other locations where there is considerable foot traffic.” After visiting the CSX yards in the Baltimore area, Duffany concluded that the large ballast used in the yards was not in compliance “with national ballast standards” or with “CSX’s own standards.” From both the national industry standard and CSX’s own standard against using large or mainline ballast in the yards, it may be inferred that the collective experience has been that walking on large ballast is injurious to the lower extremities of the employees who do that walking. That is definitely pertinent to the issue of causation. We now turn to the testimony of three key expert witnesses. Dr. Robert Widmeyer and Dr. Douglas Shepard were both accepted as experts in orthopedic medicine.

Dr. Robert Andres was accepted as an expert in ergonomics. Dr. Andres also gave us the benefit of a definition of ergonomics. “Ergonomics” is the study of people at work. The purpose of ergonomics is to study the capability of humans, what the human body can do, and to design jobs and/or fix jobs so ¹⁷⁸ that they don’t demand more from the human body than it’s capable of. A. Getting the Contention Straight It is at this point in our analysis that we run into a major problem with the way in which CSX has framed its contention.

The contention purports to challenge the legal sufficiency of the