CSX Transportation, Inc. v. Pitts

WATTS, J. This case involves an action brought by Edward L. Pitts, Sr., appellee, against his employer, CSX Transportation, Inc., appellant, under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq. (“FELA”), for damages allegedly incurred during forty years of employment with appellant. Appellee ³⁵² sought damages for various injuries including osteoarthritis of the knees allegedly caused by “large ballast,” or crushed rocks, used by appellant in rail yards and on walkway surfaces. Following a six-day trial, a jury sitting in the Circuit Court for Baltimore City returned a verdict in favor of appel-lee for a total of $1,246,000 in economic and non-economic damages. 1 After denial of post-trial motions, appellant noted this appeal.

On appeal, appellant presented five issues 2 which we have rephrased and reordered as follows: I. Whether appellee’s FELA action is precluded by federal law, specifically, 49 C.F.R. § 213.103 , a regulation promulgated under the Federal Railroad Safety Act (“FRSA”)?

II

Whether the circuit court erred in allowing the testimony of two of appellee’s witnesses over appellant’s objection? ³⁵³ III. Whether the circuit court erred in preventing appellant from cross-examining appellee’s economist as to statistics concerning a railroad employee’s average age of retirement?

IV

Whether the circuit court erred in instructing the jury as to underlying policy considerations of FELA and as to the violation of a statute as evidence of negligence? V. Whether the circuit court erred in denying appellant’s motion for new trial and/or remittitur on the grounds that the jury’s verdict was not excessive? For the reasons set forth below, we answer all five questions in the negative and, therefore, we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND In 1970, at age nineteen, appellee began his railroad career with appellant’s predecessor. 3 Appellee began in the track department, where he worked for four months, installing anti-creepers 4 and generally maintaining the tracks.

In September 1970, appellee transferred to train service. Appellee was drafted and served in the military from March 1971 through December 1972. When he returned to the railroad, appellee began working in the train and engine department where he spent the remainder of his railroad career. From December 1972 until June 1974, appellee worked as a brakeman conductor.

A brakeman is someone who “rides on the train with the engineer,” dismounts trains to throw the switches which physically move the rails to change the direction of the train from one track to another, and connects or knocks the brakes off of rail cars. At trial, appellee testified that in his time as a brakeman, he threw fifty to seventy-five switches daily, which required squatting or kneeling to unlock the switch, pull the ³⁵⁴ switch up, and throw it over. Appellee testified that he connected fifty to seventy-five air brake hoses daily, squatting and lifting the hoses up and “coupling them up.” Appellee dismounted moving equipment seventy-five to one hundred times daily. Appellee estimated that overall, he walked approximately five to six miles per day while acting as a brakeman.

According to appellee, he conducted most of these tasks on surfaces usually consisting of “the big ballast.” 5 ³⁵⁵ From June 1974 until the late 1990’s, appellee worked mainly as a fireman, hostler and brakeman, with some time spent serving as an engineer. According to the parties, a fireman is someone who works with, assists, and trains under the supervision of an engineer. An engineer is someone who conducts daily inspections of trains, which involves getting on and off of the motors, walking around the motors, and getting off and throwing switches. A hostler is someone who moves engines around, including splitting, cutting, and turning them.

Appellee estimated that as a fireman and hostler, he walked approximately two miles per day. Appellee estimated that overall, from 1974 until the late 1990’s, he walked two miles per day in rail yards on large ballast. From the late 1990’s through the time of trial in April 2010, appellee worked as an engineer, walking approximately a half a mile to one and a half miles a day. At the time of trial, appellee was fifty-nine years old and still working as an engineer.

Appellee estimated, that in his position as an engineer, he continues to throw approximately five or six switches and connects approximately ten air brake hoses daily. According to appellee, throughout his career, he performed various other tasks, including: walking to and from engines in train yards, climbing in and out of rail cars, walking around and inspecting engines, and squatting to look at brake shoes. Overall, appellee performed most of his tasks on rail yard surfaces consisting of large ballast. Appellee first began experiencing difficulties with his knees around 2003 and 2004.

Appellee testified that his knees bothered him when performing certain basic tasks at work, including walking up and down steps and ladders. Appellee sought medical attention in February 2007 and his doctor advised him that he should have surgery on his right knee to remove the cartilage and torn muscle. Appellee decided not to have surgery at that point, but later returned to his doctor as the pain in both knees worsened. The doctor recommended that appellee undergo surgery on both knees.

Appel-lee underwent arthroscopic surgery on both knees in January 2008. By that time, the doctor had indicated that appellee had ³⁵⁶ osteoarthritis in his knees, including torn muscles and cartilage “floating around” and his knees had a general worn down “crab meat” type of appearance. After five months of recovery, which included bi-weekly physical therapy for two months, appellee returned to work. Upon his return to work, over time, appellee’s knees worsened and again became painful.

Following the surgery, appellee received numerous gel lubricant injections in his knees, and is expected to receive the injections in “two series of three injections in each knee twice a year” as part of continuing treatment. According to appellee’s expert witnesses, appel-lee’s knees will worsen over time, and he will need replacement surgery on one or both of his knees. Appellee brought suit under FELA in December 2008, alleging negligence on the part of appellant in the use of “large ballast” in rail yards and on walkway surfaces, and seeking damages for injuries, including those to his knees. In April 2010, a six-day trial was held in the circuit court.

During the course of the trial, two of appellee’s witnesses, Robert Jenkins and Robert Howe, testified over appellant’s objections. Jenkins, who testified via videotape recorded deposition, is a retired conductor who worked for appellant in Jacksonville, Florida. Howe, who testified in person at the trial, is a conductor who, at the time of trial, worked for appellant in Hamlet, North Carolina. Both Jenkins and Howe served as local union chairpersons for the United Transportation Union while working for appellant.

Jenkins and Howe testified that they forwarded complaints to appellant from other railroad employees about the use of large ballast. Appellant objected to Jenkins and Howe’s testimony on the grounds that the testimony was prejudicial and cumulative of testimony given by appellee’s expert, Dr. Robert Andres. After argument from counsel, the circuit court overruled appellant’s objections, stating that while the testimony “may be partially duplicative in part, the Court does not believe that it is so prejudicial that it outweighs the ³⁵⁷ probative value for this trier of fact to be aware of the actual notice of the conditions as received.” During trial, the circuit court sustained several objections which appellant alleges prevented full cross-examination of appellee’s economics expert, Dr. Bruce Hamilton, about statistics as to a railroad employee’s average age of retirement. At the end of the trial, the circuit court instructed the jury as follows: It is clear and stipulated that [appellee] in this case is a railroad employee and therefore the activities and issues in this case are, in fact, covered under the Federal Employers!’] Liability Act or what you may hear be referred to by the acronym of FELA, F-E-L-A. Again, the Federal Employers!’] Liability Act.

That Act provides in substance that every railroad engagefd] in [interstate] commerce shall be liable in damages for injuries to [its] employees resulting in whole or in part from the negligence of any of [its] officers, agents or employees or from any defect or deficiency from [its] negligence in [its] cars, machinery, track, road bed or work areas. You’re further instructed that the Federal Employers!’] Liability Act or FELA provides a cause of action to the railroad employee engaged in this [interstate] commerce for personal injury caused in whole or in part by the negligence by any of [its] carriers, employees or agents again, or by defects due to the [carrier’s] negligence. For your own understanding, if you would please, is that the Federal Employers!’] Liability Act was, in fact, enacted back in 1908, while we were all young kids I take it. The reason, if you will, is not as much of a debate in this case, but it was in recognition of the dangers involved in railroad work and to alleviate the harsh results imposed by the results thereof.

The Federal Employers!’] Liability Act impose on the Defendant railroad a duty to [its] employees and to all of [its] employees including [appellee] to exercise reasonable care to provide the employee with a reasonably safe place in ³⁵⁸ which to work, reasonably safe conditions to work and reasonably safe tools and equipment. You’re instructed that the violations of the statute which is [causally] related to the injury in question may be considered by you as evidence of negligence. If you find from the evidence that there was a violation of the statute which is [causally] related, you may consider such violation as evidence of negligence. After the instructions, the circuit court held a brief bench conference.

At that time, appellant noted exceptions to the instructions regarding the purpose of FELA and the violation of a statute as evidence of negligence. After closing arguments and deliberations, the jury returned a verdict in favor of appellee for an unadjusted total of $1,780,000 in damages. Appellant filed two post-trial motions: a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial and a Motion for the Exercise of Revisory Power to Vacate the Judgment Entered in the Case Based on Irregularity. The circuit court denied the motions. 6 DISCUSSION I. Appellant contends that the FRSA and the regulations issued thereunder preclude appellee’s claims because the FRSA preempts State and common law requirements concerning subject matter covered by the Act.

Relying on Nickels v. Grand Trunk W. R.R., 560 F.3d 426 (6th Cir.2009), cert. ³⁵⁹ denied, — U.S.-, 130 S.Ct. 1136 , 175 L.Ed.2d 971 (2010), appellant asserts that “negligence claims under FELA are precluded by the FRSA to the same extent that negligence claims under state law are preempted by the FRSA.” Appellant argues that 49 C.F.R. § 213.103 precludes FELA claims such as those brought by appellee because the regulation allegedly covers the size and type of ballast used by railroads in mainline and secondary track. Appellant contends that preclusion is appropriate in cases involving ballast used for track support regardless of the location of the ballast. Appellant maintains that this case is distinguishable from Bickerstaff and Miller, cases in which this Court found State actions are not precluded, because the case involves ballast used in areas requiring track support, not ballast used in areas uninvolved with track support. Relying on Bickerstaff and Miller, appellee responds that 49 C.F.R. § 213.103 has no preclusive effect on FELA claims involving negligent ballast choice within rail yards and walkways, and that, in this case, appellee’s duties were not confined to areas of track support, where a FELA claim for negligent ballast choice may be precluded.

Appellee contends that Congress did not intend to regulate the use of materials in rail yards or walkways when creating regulations on track safety standards. Appellee argues that a majority of courts in other jurisdictions, in examining the preclusive effect of 49 C.F.R. § 213.103 on FELA claims, have held there is no preclusion of claims involving use of ballast in rail yards or walkways. In sum, appellee asserts that the subject of his claim—the negligent choice of ballast in rail yards and walkways—is not covered by the plain language of 49 C.F.R. § 213.103 nor did Congress intend it to be covered by the FRSA regulation. We agree.

FELA FELA creates a cause of action for railroad employees injured on the job due to the negligence of employers. FELA provides: ³⁶⁰ 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 ... for such injury ... 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. 45 U.S.C. § 51 . A railroad employee has the choice of bringing a FELA claim in either State or federal court. 45 U.S.C. § 56 . FELA actions brought in State court, although subject to State procedural rules, are governed by federal substantive law.

St Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 , 105 S.Ct. 1347 , 84 L.Ed.2d 303 (1985). In Miller, 159 Md.App. at 129 , 858 A.2d 1025 , we noted a FELA case is a hybrid, a cross between workers’ compensation and common law negligence cases.

FELA actions have several quirks, including the elimination of the defenses of contributory negligence and assumption of the risk. Id. at 137, 858 A.2d 1025 . The Supreme Court has held repeatedly that FELA is to be construed liberally to provide for easy recovery by an injured railroad employee in a FELA action. See Jamison v. Encarnacion, 281 U.S. 635, 640 , 50 S.Ct. 440 , 74 L.Ed. 1082 (1930), superseded by statute on other grounds as stated in 498 U.S. 337 , 111 S.Ct. 807 , 112 L.Ed.2d 866 (1991); Kernan v. Am.

Dredging Co., 355 U.S. 426, 432 , 78 S.Ct. 394 , 2 L.Ed.2d 382 (1958). Because FELA is a “broad remedial statute,” courts “have adopted a standard of liberal construction in order to accomplish Congress’s objects.” Norfolk S. Ry. Corp. v. Tiller, 179 Md.App. 318, 326 , 944 A.2d 1272 , cert. denied, 405 Md. 292 , 950 A.2d 829 (2008) (quotations, alterations, citations, and emphasis omitted). FELA cases have a different standard of review than common law negligence cases.

Tiller, 179 Md. App. at 324-26 , 944 A.2d 1272 . In Tiller, 179 Md.App. at 324 , 944 A.2d 1272 , we stated that an “employee-friendly standard of review” is applied in FELA cases, noting that such cases “call[ ] for an interpretive approach that is significantly differ ³⁶¹ ent from that which ordinarily prevail[ ] in a suit for common law negligence.” Given this employee-friendly standard of review and liberal construction, we have observed that “it is not hard to figure out who wins the ties and who gets the benefit of the close calls.” Miller, 159 Md.App. at 145 , 858 A.2d 1025 . The FRSA Railroads are governed by the FRSA. 49 U.S.C. § 20106 , a provision of the FRSA, provides that some actions brought in State courts are preempted by the statute. 49 U.S.C. § 20106 states that if the Secretary of Transportation or the Secretary of Homeland Security “prescribes a regulation or issues an order covering the subject matter of the State requirement,” then the State requirement must give way to the federal requirement and any action brought based on that State requirement is preempted. Id. § 20106(a)(2).

Congress has clarified, however, that not all State law causes of action are preempted by 49 U.S.C. § 20106 (a)(2). 49 U.S.C. § 20106 (b)(1) provides: “Nothing in [§ 20106] shall be construed to preempt an action under State law seeking damages for personal injury ... alleging that a party—(A) has failed to comply with the Federal standard of care ...; (B) has failed to comply with its own plan, rule, or standard ...; or (C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).” FELA actions, therefore, are not entirely preempted under the FRSA. The FRSA was created “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347 , 120 S.Ct. 1467 , 146 L.Ed.2d 374 (2000). The stated purpose of the FRSA was “to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous material.” FRSA of 1970, Pub.L. No. 91-458, 84 Stat. 971 (codified as 45 U.S.C. §§ 421 et seq.).

The FRSA mandated that the Secretary of Transportation “pre ³⁶² scribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety[,]” and that the initial standards be issued no later than one year from the date of enactment—October 16, 1970. Id. The Secretary of Transportation delegated its authority under the FRSA to the FRA. 49 C.F.R. § 1.49 (m). In exercising that authority and following the FRSA’s mandate, on June 23, 1971, the FRA issued a Notice of Proposed Rule Making providing the language of the track safety standard regulations. 36 Fed.Reg. 20,336 (Oct. 20, 1971).

On October 15, 1971, after considering all of the comments submitted in writing and made at the public hearing held on August 2, 1971, the FRA amended the proposed track safety standards in order “to establish initial safety standards for track and track inspection[.]” 7 Id. 49 C.F.R. § 213 .103—The Ballast Regulation In 1971, the FRA promulgated 49 C.F.R. § 213.103 , titled “Ballast; general,” which provides as follows: 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 alinement. Two decades later, in 1992, Congress enacted the Rail Safety Enforcement and Review Act, 102 Pub.L. No. 365, 106 Stat. 972 (1992), which was later amended by the Federal Railroad Safety Authorization Act of 1994,103 Pub.L. No. 440, 108 Stat. 4615 (1994), and codified at 49 U.S.C. § 20142 . 63 ³⁶³ Fed.Reg. 33,992 (June 22, 1998). The amended 49 U.S.C. § 20142 mandated: (a) Review of existing regulations. Not later than March 3, 1993, the Secretary of Transportation shall begin a review of Department of Transportation regulations related to track safety standards.

The review at least shall include an evaluation of— (1) procedures associated with maintaining and installing continuous welded rail and its attendant structure, including cold weather installation procedures; (2) the need for revisions to regulations on track excepted from track safety standards; and (3) employee safety. In response, the FRA amended the Track Safety Standards “to update and enhance its track safety regulatory program.” 63 Fed.Reg. 33,992 (June 22, 1998). The FRA stated that the changes made would “improve track safety and provide the railroad industry with the flexibility needed to effect a safer and more efficient use of resources.” Id. No comments were received and no changes were suggested for 49 C.F.R. § 213.103 . 63 Fed.Reg. 34,006.

The Track Working Group, the group reviewing the regulations, “recommended that [ 49 C.F.R. § 213.103 ] remain as currently written.” Id. 49 C.F.R. § 213.103 has thus remained the same for over forty years. Relevant Maryland Case Law This Court has previously examined preclusion of FELA actions where a claimant alleges negligent use of ballast. In Miller, 159 Md.App. at 146, 167, 170-71 , 858 A.2d 1025 , we held that a FELA action in which the plaintiff sought recovery for bilateral osteoarthritis of the knees allegedly caused by large ballast in rail yards and walkways alongside rail tracks was not precluded by 49 C.F.R. § 213.103 . As to rail yards, in examining 49 C.F.R. § 213.103 , with Judge Charles E. Moy-lan, Jr. speaking for this Court, we stated: 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 ³⁶⁴ 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. 159 Md.App. at 167 , 858 A.2d 1025 (emphasis added). In Miller , relying on Grimes, 116 F.Supp.2d 995 and Elston, 74 P.3d 478 , authorities from other jurisdictions in which courts rejected the preclusion argument, we held that 49 C.F.R. § 213.103 does not preclude FELA claims alleging negligent use of ballast on walkways. Miller, 159 Md.App. at 167-70 , 858 A.2d 1025 .

See Grimes, 116 F.Supp.2d at 1002 (“Every circuit that has considered the issue of walkways [alongside the tracks] has concluded that the FRSA is silent on the question of walkways.”); Elston, 74 P.3d at 487 (“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.”). In Miller, 159 Md.App. at 170-71 , 858 A.2d 1025 , we concluded that walkways are not covered by the FRSA regulation and therefore a FELA action concerning the walkways is not precluded. Specifically, Judge Moylan stated: If even walkways alongside the tracks are not covered, a fortiori, the walking surface throughout a railroad yard is not covered. 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 with these regulations is immaterial in determining whether a reasonable person in defendant’s situation would have provided walkways alongside its tracks. Id. at 170-71, 858 A.2d 1025 (emphasis added). Similarly, in Bickerstaff, 187 Md.App. at 201, 978 A.2d 760 , we held that railroad employees’ FELA claims were not ³⁶⁵ precluded by 49 C.F.R. § 213.103 . Bickerstaff involved ballast used in rail yard walkways, not ballast used to support the mainline track.

Id. at 263, 978 A.2d 760 . With Judge Woodward speaking for this Court, we discussed our holding in Miller, the holding of the Court of Appeals of Georgia in Nonris v. Cent. of Ga. R.R. Co., 280 Ga.App. 792 , 635 S.E.2d 179 (2006), and the holding of the Court of Appeals of Texas in Hendrix, 196 S.W.3d 188 . Bickerstaff, 187 Md.App. at 262-64 , 978 A.2d 760 .

In reviewing Miller and Norris, we concluded that: The Court’s conclusion in Norris is entirely consistent with our decision in Miller . In Miller , we recognized that 49 C.F.R. § 213.103 governs the ballast along the mainline track and not the ballast in the rail yard. See 159 Md.App. at 167 , 858 A.2d 1025 . (“The regulation is concerned with the track and its immediately adjoining area and not with railroad yards.”) In Nonris , the testimony on which the appellant relied failed to show that he stumbled on ballast not located along the mainline track. 635 S.E.2d at 183-84 .

Therefore, the appellant in Norris did not establish that his negligence claim fell outside the purview of 49 C.F.R. § 213.103 . Id. at 184 . To the contrary, in the instant case, appellees rest their FELA claims on appellant’s negligence in maintaining safe walkways in the rail yards and make no mention of alternate ways in which appellant might have supported its mainline track. Bickerstaff, 187 Md.App. at 262-63 , 978 A.2d 760 (some emphasis in original).

In Bickerstaff, 187 Md.App. at 263 , 978 A.2d 760 , we concluded that the opinion of the Court of Appeals of Texas in Hendrix, 196 S.W.3d 188 , was consistent with Miller . In Hendrix, 196 S.W.3d at 201 , the Court held that “the FRSA does not preclude, as a matter of law, any and all employee FELA claims that relate to or touch upon walkway conditions and the size of rail yard ballast.” In Bickerstaff, 187 Md.App. at 263-64 , 978 A.2d 760 , after discussing Hendrix and recent authorities in which other courts declined to find that FELA claims involving ballast used in rail yards and on walkways ³⁶⁶ were precluded by 49 C.F.R. § 213.103 , we stated that: “In light of the most recent case law on the issue of preclusion, we decline to reconsider our holding in Miller.” Relevant Case Law from Other Jurisdictions In Hendrix, 196 S.W.3d at 201 , a case decided after Miller and prior to Bickerstaff , the Court of Appeals of Texas held that a railroad employee’s FELA claim was not precluded by 49 C.F.R. § 213.103 . Hendrix was allegedly injured by large ballast used “in the [rail] yard walkways.” Id. at 190 . Hendrix maintained that his FELA claim was not precluded because “the federal regulations concerning ballast deal with the safety of the track, not the safety of employees working in and around the tracks.” Id. at 193 .

The railroad argued that cases from other jurisdictions support the proposition that FELA claims alleging negligent use of ballast in walkways are precluded. Id. at 198-99 . The railroad maintained that 49 C.F.R. § 213.103 specifically regulates ballast as a measure of track safety and that Hendrix’s claim challenging the “nature and size of the ballast” was precluded regardless of the location of the ballast within the rail yard. Id. at 191 .

The Court of Appeals of Texas concluded that 49 C.F.R. § 213.103 does not preclude “any and all” claims related to walkway conditions Id. at 201 . In Norris, 635 S.E.2d at 183 , the Court of Appeals of Georgia held that a railroad employee’s FELA claim was precluded by 49 C.F.R. § 213.103 . Norris was allegedly injured by large ballast while working on a mainline switch on one side of the mainline track. Id. at 181 .

Norris argued that because 49 C.F.R. § 213.103 did “not specify any particular size of ballast, ... a jury should be allowed to decide whether smaller ballast should have been used[.]” Id. at 183 . Norris attempted to argue that the ballast in the area where he was injured did not support the mainline track. Id. Unconvinced, the Court of Appeals of Georgia stated: “Essentially, Norris seeks to place the ballast upon which he stumbled outside the purview of 49 C.F.R. § 213.103 .

This regulation governs ballast relative to track support, but not necessarily other ballast ³⁶⁷ within a rail yard.” Id. Because Norris’s FELA claim rested on the means by which the main track was supported, and involved ballast used in an area of track support, the claim was precluded under 49 C.F.R. § 213.103 . Id. at 183-84 . The Court of Appeals for the Sixth Circuit examined preclusion of FELA actions alleging negligent use of ballast and reached conclusions similar to those expressed by this Court in Bickerstaff and Miller .

In Nickels, 560 F.3d at 428 , the Court of Appeals for the Sixth Circuit held that railroad employees’ negligence actions were precluded because 49 C.F.R. § 213.103 covered the issue of ballast size. The issue in Nickels involved ballast used for track support, not ballast used in other areas of the rail yard or on walkways. Id. In Nickels, 560 F.3d at 428 , railroad employees claimed “that their former employers failed to provide a safe working environment by using large mainline ballast—instead of smaller yard ballast—underneath and adjacent to tracks receiving heavy foot traffic.” The railroad employees argued that the employers “could have used smaller ballast in areas of heavy foot traffic without violating their duty to provide a stable track.” Id. at 431 .

The Sixth Circuit held that 49 C.F.R. § 213.103 substantially subsumed the issue of ballast size used for track support, making no distinction between mainline and secondary track, and found that the regulation leaves the size and type of ballast to be used up to the “railroads’ discretion so long as the ballast performs the enumerated support functions.” 560 F.3d at 431 . Tellingly, the Sixth Circuit made the following observation as to the railroad employees’ claims: The [railroad employees] note that 49 C.F.R. § 213.103 does not address “what constitutes a reasonably safe walkway for railroad employees performing their duties adjacent to the track.” This suggests that the [railroad employees] allege negligence in the railroads’ use of oversized ballast in areas completely separate from those where track stability and support are concerned. Such an allegation, however, does not appear in either of their complaints. Nickels alleges that “railroad ballast” was used by the Lrailroad] to support the railroad track....

Even to the extent that the [railroad ³⁶⁸ employees] argue oversized ballast was used “along,” “adjacent to,” or “parallel to” the track, they do not contend that the ballast in those areas was not being used for stability under § 213.103. 560 F.3d at 432-33 (footnote omitted) (emphasis in original). 8 The holding in Nickels was premised on the observation that the employees did not contend that ballast used on walkways was not used for stability, in other words for track support. Id. In Elston, 74 P.3d at 487 , the Court of Appeals of Colorado held that a railroad employee’s FELA claim was not precluded by FRSA regulations. Elston, who was allegedly injured while walking alongside the tracks when he slipped and fell on ballast, brought suit under FELA alleging that the railroad was negligent for failing to provide reasonably safe walkways.

Id. at 481 . Elston “asserted that, because [the railroad employer] often require[d] its employees to walk the length of the train to make repairs or change train crews, defendant’s failure to provide a reasonably safe walkway alongside the train created a foreseeable risk of harm that caused, in whole or in part, his injury.” Id. at 482 . The Court of Appeals of ³⁶⁹ Colorado noted that “the issue of walkways is not explicitly addressed in the federal safety regulations.” Id. at 487 . Upon review of the FRSA’s track safety standards, the Court of Appeals of Colorado concluded that FRSA regulations, including 49 C.F.R. § 213.103 , “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.” Id. at 488 .

The Court of Appeals of Colorado noted that the railroad had “failed to adduce any evidence that the FRA, in promulgating the track safety standards, even considered the issue of safe walkways for railroad employees.” Id. As such, the Court of Appeals of Colorado held that the FRSA regulations did not cover walkways, and Elston’s FELA claim was not precluded. Id. at 487-88 . Analysis Returning to the case at hand, consistent with our holdings in Biekerstaff and Miller , and the myriad of other courts that have examined the issue, we conclude that the plain language of 49 C.F.R. § 213.103 demonstrates that the regulation applies to ballast used for track support.

We find no merit in appellant’s argument that the FRSA regulation “covers” or “substantially subsumes” the issue of ballast used in rail yards and on walkways. 49 C.F.R. § 213.103 is located within a subpart of the FRA’s transportation regulations labeled “Track Safety Standards.” The regulation mandates that “all track shall be supported by material” which can perform enumerated track support functions, and it is located within subpart “D” on “Track Structure.” 49 C.F.R. § 213.103 . Subpart “D” provides: “This subpart prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical conditions of the rails.” 49 C.F.R. § 213.101 . 49 C.F.R. § 213.103 , on its face, does not require the use of ballast in rail yard areas or mention the safety of walking surfaces for railroad employees. Rather, 49 C.F.R. § 213.103 provides that “all track shall be supported by material which will—(a) Transmit and distribute the load of the ³⁷⁰ 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 cros-slevel, surface, and alinement.” As such, the regulation concerns the track itself and not conditions of rail yards or walkways. As we explained in Miller, 159 Md.App. at 167, 170 , 858 A.2d 1025 : “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^]” and “[i]f even walkways alongside the tracks are not covered, ... the walking surface throughout a railroad yard is not covered.” The legislative history of the regulation leads to the conclusion that claims involving ballast used in rail yards and walkways are not precluded.

The legislative history of the FRSA regulation 49 C.F.R. § 213.103 demonstrates that Congress and the FRA have been largely silent as to ballast used in the rail yards and in walkways. The overarching theme through creation and amendment of the FRSA regulations has been one of track safety versus safety in employee working conditions. Indeed, as Judge Moylan pointed out in Miller, 159 Md.App. at 172 , 858 A.2d 1025 : 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.

(quoting Elston, 74 P.3d at 488 ). Appellant has failed to demonstrate that Congress or the FRA intended 49 C.F.R. § 213.103 to cover ballast used in railroad employee walking areas, such as rail yards and walkways. ³⁷¹ Relevant case law from this Court and other jurisdictions demonstrates that courts have consistently held that FELA claims concerning ballast used for track support are precluded by 49 C.F.R. § 213 .103—not claims concerning ballast used in rail yards and in walkways. 9 In this case, in his Amended Complaint, appellee alleged that he was injured “as a result of his repeated walking on improper ballast along the railroad tracks, in rail yards and other workplace areas.” It is clear that appellee’s claim extends beyond the ballast used for main line track support to the ballast used in rail yards and on walkways. Our review of the record reveals that appellant did not present evidence at trial supporting its broad claim that ballast in rail yards and walkways provides track support. As appellee pointed out during oral argument, appellant failed to produce expert testimony or any evidence at trial supporting the contention that ballast used in the rail yards and in walkways provides track support as required by 49 C.F.R. § 213.103 .

Based on this circumstance alone, we are not persuaded to reconsider our holdings in Bickerstaff and Miller . It is clear, however, that whether reviewing the plain language of 49 C.F.R. § 213.103 , the legislative history of the regulation, or relevant case law, FELA claims involving the use of ballast in rail yards and walkways are not precluded by 49 C.F.R. § 213.103 .

II

Appellant contends that the circuit court erroneously admitted the testimony of two witnesses, Jenkins and Howe, over its objection, and that the testimony was “far more prejudicial than probative” and cumulative. Appellant contends the testi ³⁷² mony was unfairly prejudicial for the following reasons: (1) both Jenkins and Howe testified that, in their opinions, appellant “did not adequately respond to their complaints about the allegedly improper ballast in the yards in Jacksonville and Hamlet”; (2) “Jenkins went so far as to claim that, in his opinion, [appellant] management in Jacksonville would never fix the problem with large ballast because it supposedly would cost too much”; and (3) Jenkins “implied that Jacksonville management had concealed injury statistics related to large ballast.” Appellant maintains that the testimony painted it in a bad light by informing the jury that appellant was unresponsive and indifferent to workers’ safety, and had concealed injury statistics. Appellant argues the testimony lacked probative value and that the only potential relevance of the testimony was “to show notice through the complaints that [Jenkins and Howe] submitted to their local supervisors.” Appellant maintains that the subject matter of Jenkins’s and Howe’s testimony—previous complaints to appellant regarding large ballast—had already been addressed by appellee’s ergonomics expert, Dr. Andres. Appellant contends that Dr. Andres testified regarding letters written by Jenkins and Howe in which they requested that appellant use small rather than large ballast in the rail yards 10 and, as such, the witnesses’ testimony was cumulative.

Appellee urges this Court to find that appellant has not preserved an issue as to the testimony of Jenkins and Howe for appellate review. Appellee contends that appellant failed to argue that the testimony was unfairly prejudicial, failed to make contemporaneous objections during the testimony of Jenkins and Howe, and “some of th[e] testimony was actually given on cross-examination, in response to questions posed by [appellant].” ³⁷³ Alternatively, appellee maintains that, under Md. Rule 5-403, the probative value of Jenkins and Howe’s testimony was not substantially outweighed by the danger of unfair prejudice. Appellee maintains that prior to Jenkins’s and Howe’s testimony, appellant “merely made bald allegations of prejudice, with no explanation of any prejudice,” and that those allegations were properly considered and dismissed by the circuit court. Appellee contends that the testimony of Jenkins and Howe was not cumulative because, although Dr. Andres referred to the letters written by Jenkins and Howe, the letters were not admitted into evidence or read to the jury in their entirety during the expert’s testimony. “Rulings on the admissibility of evidence must normally be left to the sound discretion of the trial judge in actions under the Federal Employers’ Liability Act.” Bickerstaff, 187 Md.App. at 241 , 978 A.2d 760 (citation omitted).

In particular, when weighing evidence, “a trial court is given significant deference in its determination that probative evidentiary value outweighs any danger of prejudice.” S. Mgmt. Corp. v. Mariner, 144 Md.App. 188, 197 , 797 A.2d 110 (2002). Prejudice, in the context of the balancing test, has been described as follows: “Evidence is never excluded merely because it is ‘prejudicial.’ If prejudice were the test, no evidence would ever be admitted. Parties ... have a right to introduce prejudicial evidence.

Probative value is outweighed by the danger of ‘unfair’ prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case.” Moore v. State, 84 Md.App. 165, 172 , 578 A.2d 304 , cert. denied, 321 Md. 385 , 582 A.2d 1256 (1990) (quoting J. Murphy, Maryland Evidence Handbook, § 509, p. 160 (1989)). In Miller, 159 Md.App. at 219-20 , 858 A.2d 1025 , the same witnesses, Jenkins and Howe, were called to testify by Miller to establish that CSX had notice of possible problems posed by the use of large ballast. We concluded that the testimony of both Jenkins and Howe was relevant, stating: ³⁷⁴ To establish some negligence in that regard on the part of CSX, Miller had to show foreseeability, to wit, that CSX was on notice that the use of large ballast was creating a footing problem for employees in the railroad yards. The testimony of both Jenkins and Howe, particularly in their capacities as union representatives passing along workers’ complaints to management, bore directly on that issue of foreseeability or notice.

In the words of Rule 5-401, the testimony unquestionably had a “tendency to make the existence of’ notice “more probable than it would be without the” testimony. The challenged evidence was relevant, by definition. Id. In Miller, 159 Md.App. at 213 , 858 A.2d 1025 , CSX argued that the trial court erred in excluding Jenkins and Howe’s testimony as the danger of unfair prejudice outweighed the testimony’s probative value.

After culling through the “950-page record extract,” we ultimately concluded that CSX had not preserved an argument as to unfair prejudice for appellate review. Id. at 213, 215, 858 A.2d 1025 . We determined that the argument as to unfair prejudice was not preserved as CSX had not made an objection “at any time on the basis of Rule 5-403 and the idea that relevance was outweighed by unfair prejudice.” Id. at 214, 858 A.2d 1025 . Given that the testimony of both Jenkins and Howe was relevant, however, it was admissible.

Id. at 219-20, 858 A.2d 1025 . Preservation Preliminarily, in this case, we will address the preservation of appellate review as to the circuit court’s denial of the request to exclude Jenkins and Howe as witnesses, Jenkins’s testimony regarding Plaintiffs Exhibit Number 89, and the admission of Plaintiffs Exhibits Numbers 90, 93, and 94. At trial, prior to the testimony of Jenkins and Howe, appellant objected and the following exchange occurred: [APPELLANT’S COUNSEL]: Yes, Your Honor. Both [Jenkins and Howe] are offered to introduce evidence of prior complaints by each of these individuals to CSX____ because Dr. Andres has already testified to the letters that ³⁷⁵ were written by Mr. Jenkins and Mr. Howe and those are the complaints .... any testimony with regard to the letters or the conditions that are the basis of those letters, conditions which aren’t being challenged are cumulative.

On the whole, the testimony of Mr. Jenkins and Mr. Howe, we would also suggest is more prejudicial than probative. The question now is do we do anything with additional testimony other than let in prejudicial, you know, prejudicial evidence when the probative evidence under Miller has already come in. So, on that basis, because it’s cumulative because it’s probative value is outweighed by it’s prejudice and because the evidence that it seeks to admit has already been admitted, I would suggest that both of these witnesses should be excluded. THE COURT: [Appellee], I’ll hear from you. [APPELLEE’S COUNSEL]: Let me take first things first.

It’s my understanding that the [letters] were marked for identification at the time they were displayed to Dr. Andres and did not—have not been moved into evidence at this point in time.... I do believe that it’s important that [Jenkins and Howe] testify, because I think it’s important that we prove for part of the civility of our case that they had actual knowledge. Not only could they foresee, but they had actual knowledge of a problem and it was a systemic problem that they had. I think the testimony of these two gentlemen will verify that. * * * THE COURT: [The letters] have no [t] been introduced per [se] under the way we operate and we should take it as it’s coming in.... ³⁷⁶ [APPELLANT’S COUNSEL]: ...

The question is has it A, become overly cumulative and if it is overly cumulative hasn’t that probative value of notice which isn’t being challenged really been vastly outweighed by the prejudicial effect of additional testimony about conditions in yards other than Baltimore? That’s all I can say. THE COURT: ... So, the fact that it may be discussing as to from another State, doesn’t change the discussion, itself as a faraway place per [se].

The—it is reasonable for the objection to be made and the Court’s review of it is based on whether or not A, it’s cumulative and B, in light of the suggestion that it’s prejudice outweighs the probative value. The Court takes the reference by the prior witness Andres as to that which he took in consideration for his opinion. The issue here being that as to notice, the Court will use that while it may be partially duplicative in part, the Court does not believe that it is so prejudicial that it outweighs the probative value for this trier of fact to be aware of the actual notice of the conditions as received. It is noted however as to both and overruled at this time. * * * [APPELLANT’S COUNSEL]: The Defense therefore, if it’s alright with the Court would feel that it doesn’t need to object and intercede when those questions are asked.

THE COURT: No, I still think you want to make your objection. [APPELLANT’S COUNSEL]: Very well. Thank you. THE COURT: If I were you would make my objection if you saw something that needed to be objected to. [APPELLANT’S COUNSEL]: Unless the Court were inclined to grant a continuing objection we would do that. THE COURT: I will try to be consistent---- You may want to make an objection.

Okay. After appellant’s objection was overruled, a videotape recording of Jenkins’s deposition was played for the jury. The ³⁷⁷ record reflects that appellant did not make any objections, during the deposition or in-court, to questions concerning its willingness to correct problems with large ballast or to provide injury reports. During cross-examination of Jenkins at deposition, the following exchange occurred regarding a letter dated May 18, 1984, written by Jenkins, 11 in which he requested that appellant use small ballast in Jacksonville terminals: [APPELLANT’S COUNSEL]: So you drafted this letter; is that correct? [JENKINS]: Correct. [APPELLANT’S COUNSEL]: And as a result of this letter, you have testified that the—the railroad, the management of the railroad came in and laid small ballast over the larger ballast; is that correct? [JENKINS]: Later.

They came in and—just on the switching leads, not down the individual tracks which you had to walk also. [APPELLANT’S COUNSEL]: But that was what you had asked for, though, for the small ballast to be placed over the large ballast. [JENKINS]: Because I knew that they were not going to spend the money—that—that the local management could not get the money for the railroad to, what I would call, do it right and just lay, what I would call, yard ballast through the—walking ballast through the yards. I knew they wasn’t going to do that. So that’s the reason I asked for— The following exchange occurred, during cross-examination at the deposition, as to Jenkins’s discussions with management about obtaining reports on injuries: [APPELLANT’S COUNSEL]: Do you have the[ incident and] injury reports? [JENKINS]: Ma’am, they—they would not give me that report. [APPELLANT’S COUNSEL]: Did you ask for them? ³⁷⁸ [JENKINS]: I could ask, but they would say no. At trial, Howe testified regarding complaints to appellant regarding the use of large ballast and a letter dated August 21, 1992, in which he advised appellant of the complaints.

During direct examination of Howe, the following exchange occurred: [APPELLEE’S COUNSEL]: Could you tell the juror what those complaints [received from railroad employees] were about? [HOWE]: The big ballast that was put into the yard. [APPELLEE’S COUNSEL]: What was the complaints about the big ballast? [HOWE]: It was unlevel to walk in and it was hard to walk on. It would move under your feet. It was causing a slip, trip, fall haz[ ]ard and it hurt your feet and legs. [APPELLEE’S COUNSEL]: Did you bring this to the attention of your supervisors? [HOWE]: Yes, I did. [APPELLEE’S COUNSEL]: Was this brought to your supervisor’s attention orally or in writing, initially? [HOWE]: Initially, it was orally. [APPELLEE’S COUNSEL]: Did you get any relief? [HOWE]: No, sir. [APPELLEE’S COUNSEL]: Did [t]here come a time when you put in writing your complaint— [HOWE]: Yes, sir. [APPELLEE’S COUNSEL]:—to your supervisor? Appellant objected to the admission of the letter, but the circuit court overruled the objection and admitted the August 21, 1992, letter into evidence as Plaintiffs Exhibit Number 90.

The following exchange occurred: [APPELLEE’S COUNSEL]: Your Honor, I would move the