CSX Transportation, Inc. v. Pitts

ADKINS, J. This negligence case, brought under the Federal Employers Liability Act (“FELA”), presents several issues not found in a typical negligence claim, but of growing significance nationwide. The issue that has been drawing most of the courts’ time and attention is federal preclusion — whether and when a railroad employee’s negligence action under FELA may be ⁴³⁶ precluded by the Federal Railroad Safety Act (“FRSA”) and regulations enacted thereunder. Here, we are asked to decide whether a regulation governing the railroad’s use of ballast to support railroad tracks precludes a FELA action that alleges the railroad was negligent in failing to use small ballast in its walkways, so as to provide a smoother and safer walking surface for employees. 1 We join those courts that hold that a negligence action alleging the improper use of ballast will be precluded only to the extent to which the ballast performs a track-support function. In so doing, we conclude that the railroad should, fairly, bear the burden of proving the facts that support preclusion.

We also address complaints about two jury instructions and the trial court’s rulings on the defense’s efforts to cross-examine the plaintiffs expert economist regarding industry-wide worklife expectancy. FACTS AND LEGAL PROCEEDINGS Edward L. Pitts, Sr., filed suit in the Circuit Court for Baltimore City against his employer CSX Transportation, Inc. (“CSX”) under FELA, alleging that CSX was negligent in its use of large ballast rather than small ballast in the areas where Pitts worked. Pitts claimed that walking on the large ballast caused him to develop severe osteoarthritis in both knees. Pitts began working for CSX at the age of 19 and was 59 at the time of trial.

He testified that, from June to September of 1970, he worked in the track department, where he was required to walk along the tracks installing anticreeper devices. From December 1972 to June 1974, Pitts worked as a ⁴³⁷ conductor and brakeman. During that time period, he walked between five to six miles a day, was required to disassemble the brakes, and dismounted moving equipment. From June 1974 till the late 1990s, Pitts worked as a fireman, hostler, conductor, and brakeman.

In these positions, he walked between two to three miles a day, would inspect the trains before they left the yard, connected and disconnected the engines, coupled and uncoupled air hoses, and threw the switches to change the direction of the train from one track to the other. From the late 1990s until trial, Pitts worked as an engineer. He walked between half-a-mile to a mile-and-a-half a day and inspected the engines. Despite feeling pain in his knees as early as 2003, Pitts did not see a doctor until 2007.

At that time, he had grade 3 osteoarthritis, torn meniscus tissue in both knees, and extremely worn cartilage. In 2007, the doctor suggested knee surgery, but Pitts initially declined, until early 2008 when he underwent arthroscopic surgery on both knees. After missing five months due to the surgeries, Pitts returned to work and was still employed as of the date of trial. At trial, Pitts testified that he had hoped to work until the age of 68 because his daughter is a single parent, and he wanted to help put his grandson through college.

In calculating Pitts’s loss of future earnings, his expert economist assumed a retirement age of 67 based on information provided by Pitts’s lawyer. CSX sought to show that Pitts would not have worked until the age of 68 by cross-examining the expert economist regarding statistics about the average age of railroad workers’ retirement (allegedly age 60). The trial court allowed only limited questioning of this nature. After a six-day trial, the jury returned a verdict in Pitts’s favor, finding CSX seventy percent negligent, Pitts twenty percent negligent, and allocating ten percent to other causes.

The jury awarded Pitts a total of $1,780,000 for his injuries — $444,000 for future loss wages and $1,335,000 for non-economic damages. The award was subsequently reduced to $1,246,000 according to the jury’s allocation of negligence. ⁴³⁸ The Court of Special Appeals affirmed. In a reported opinion authored by Judge Watts, the intermediate appellate court held that Pitts’s ballast claim was not precluded by federal law, the trial court did not abuse its discretion in limiting the use of the retirement statistics on cross-examination, and CSX was not prejudiced by two allegedly erroneous jury instructions. CSX Transp., Inc. v. Pitts, 203 Md.App. 343, 371, 389, 391-93 , 38 A.3d 445, 461-62, 471-72, 473-74 (2012).

On June 21, 2012, this Court granted a writ of certiorari, CSX Transportation v. Pitts, 427 Md. 62 , 46 A.3d 404 (2012), to answer the following questions: 1. Whether the federal regulation governing the ballast used to support railroad track, 49 C.F.R. § 213.103 , applies to track located within rail yards (and therefore precludes claims based on the selection of ballast used to support track in rail yards), or, as the Court of Special Appeals held, applies only to track on the main line. 2. Whether the Court of Special Appeals acted contrary to the Supreme Court’s decision in Norfolk Southern Railway v. Sorrell, 549 U.S. 158, 171 [ 127 S.Ct. 799 , 166 L.Ed.2d 638 ] (2007), when it adopted “an employee-friendly standard of review” in FELA cases. 3. Whether a defendant should be allowed to cross-examine a plaintiffs economist about work-life statistics which show that the plaintiffs claim for future economic damages is likely exaggerated because it rests on an unrealistic assumption about when the plaintiff likely would have retired.

As CSX explained in its petition for certiorari and brief, the crux of the second issue is the intermediate appellate court’s review of two allegedly erroneous jury instructions. We shall hold first that Pitts’s FELA claim was not precluded by 49 C.F.R. § 213.103 because CSX failed to prove that the claim was based on ballast performing a track-support function. Second, neither of the jury instructions rises to the level of prejudicial error. Finally, the trial judge did not ⁴³⁹ abuse his discretion in limiting, without banning, questions about worklife expectancy tables on cross-examination.

DISCUSSION In this appeal, CSX has requested three alternative forms of relief. First, it asks for judgment as a matter of law, arguing that a FRSA regulation substantially subsumes the railroad’s choice of ballast to support its tracks, and thereby, precludes Pitts’s negligence claim under FELA. Second, CSX seeks a new trial, claiming that two jury instructions — explaining Congress’s purpose behind enacting FELA and stating that violation of a statute is evidence of negligence — were both erroneous and prejudicial. Third, CSX asks for a new trial on the issue of damages, arguing that the trial court committed prejudicial abuse of discretion in limiting the cross-examination of an expert economist.

We will take each in turn. FRSA’s Preclusive Effect Upon Negligent-Choice-of-Ballast Claims Under FELA CSX seeks to use the doctrine of preclusion to prevent Pitts, as a matter of law, from recovering on his claim that CSX negligently used large ballast, instead of small ballast, in the areas in which he was required to walk to perform his work duties. 2 Specifically, CSX argues that FRSA regulation 49 C.F.R. § 213.103 covers the issue of ballast choice and thereby precludes Pitts from bringing a FELA negligence action based on CSX’s choice of ballast in its yards. To determine the potential preclusive effect of this regulation, we first examine the interplay between the two federal statutes: FELA, which authorizes negligence suits against railroads by ⁴⁴⁰ their employees, and FRSA, which is designed to promote safety through uniform national regulations. We then determine the extent to which 49 C.F.R. § 213.103 may preclude a FELA negligence claim based on a railroad’s choice of ballast.

Finally, we decide whether CSX has met its burden of proving that 49 C.F.R. § 213.103 precluded Pitt’s FELA claim. FELA and FRSA Congress enacted FELA in 1908 “to provide a remedy to railroad employees injured as a result of their employers’ negligence.” Waymire v. Norfolk & W. Ry. Co., 218 F.3d 773, 775 (7th Cir.2000). Under the Act, “[e]very common carrier by railroad while engaging in [interstate] commerce .... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence ... of such carrier.... ” 45 U.S.C. § 51 (2006).

Interpreting the Act, the Supreme Court has made “clear that the general congressional intent was to provide liberal recovery for injured workers.” Kernan v. Am. Dredging Co., 355 U.S. 426, 432 , 78 S.Ct. 394, 398 , 2 L.Ed.2d 382 (1958). As such, “[t]he Act is not to be narrowed by refined reasoning. ... It is to be construed liberally to fulfill the purposes for which it was enacted____” 3 Jamison v. Encamacion, 281 U.S. 635, 640 , 50 S.Ct. 440, 442 , 74 L.Ed. 1082 (1930).

In 1970, Congress enacted FRSA “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101 (2006). FRSA authorizes the Secretary of Transportation to “prescribe regulations and issue orders for every area of railroad safety.” Id. § 20103(a). The Act provides that “[l]aws, regulations, and orders related to railroad safety ... shall be nationally uni ⁴⁴¹ form to the extent practicable.” Id. § 20106(a)(1). The regulation at issue in this case, 49 C.F.R. § 213.103 , was adopted under the authority of FRSA.

Under FRSA’s express preemption clause, “[a] State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation ... prescribes a regulation or issues an order covering the subject matter of the State requirement.” Id. § 20106(a)(2) (emphasis added). FRSA does not explain how it interacts with another federal statute covering the same subject matter. See Cowden v. BNSF Ry. Co., 690 F.3d 884, 890 (8th Cir.2012).

Nevertheless, CSX asks us to hold that FRSA precludes a federal negligence suit under FELA to the same extent it would preempt a state law negligence claim. 4 This interpretation would mean applying the test enunciated by the Supreme Court in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 , 113 S.Ct. 1732 , 123 L.Ed.2d 387 (1993). Under the Easterwood test, the railroad would be required to “establish more than that [the FRSA regulations] ‘touch upon’ or ‘relate to’ that subject matter, [because] ‘covering’ is a more restrictive term which indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law.” Id. at 664 , 113 S.Ct. at 1738 (citation omitted) (emphasis added). Many courts, especially in more recent cases, have adopted this federal-state law preemption test for the purposes of analyzing whether FRSA precluded a federal negligence suit. See, e.g., Nickels v. Grand Trunk W. R.R., Inc., 560 F.3d 426, 430 (6th Cir.2009); Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 443 (5th Cir.2001); Waymire, 218 F.3d at 776 ; McCain v. CSX Transp., Inc., 708 F.Supp.2d 494, 501-04 (E.D.Pa.2010); Davis v. Union Pac.

R.R. Co., 598 F.Supp.2d 955, 956-60 (E.D.Ark.2009); DeHahn ⁴⁴² v. CSX Transp., Inc., 925 N.E.2d 442, 450 (Ind.Ct.App.2010); Booth v. CSX Transp., Inc., 334 S.W.3d 897, 900-01 (Ky.Ct. App.2011). 5 Others expressed doubt FRSA can ever preclude a FELA claim. See, e.g., Grimes v. Norfolk S. Ry. Co., 116 F.Supp.2d 995, 1003 (N.D.Ind.2000); Earwood v. Norfolk S. Ry. Co., 845 F.Supp. 880, 891 (N.D.Ga.1993); Myers v. Ill.

Cent. R.R. Co., 323 Ill.App.3d 780 , 257 Ill.Dec. 365 , 753 N.E.2d 560, 565 (2001). We need not decide whether a FRSA regulation can ever preclude a FELA claim because a close analysis of the record assures us that, even if we applied the state law preemption standard, the Circuit Court did not err in denying CSX’s motion for judgment. We explain.

Preclusion of a Negligence Claim Based on a Railroad’s Choice of Ballast Under the state law preemption test CSX wants us to apply in the federal context, a FRSA regulation would preclude a FELA negligence claim only if the regulation “covers” or “substantially subsumes” the subject matter of the claim. See Easterwood, 507 U.S. at 664 , 113 S.Ct. at 1738 . Pitts’s FELA claim alleges that CSX was negligent in its choice of ballast in its yards. Thus, for his claim to be precluded, there must be a FRSA regulation covering a railroad’s use of ballast.

CSX relies on 49 C.F.R. § 213.103 , which is the only FRSA regulation to discuss the use of ballast, namely the use of ballast for the purposes of supporting railroad track. It reads as follows: 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; ⁴⁴³ (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]. 49 C.F.R § 213.103. CSX claims there “is no dispute” that this regulation “substantially subsumes the subject of the ballast that is used to support railroad track.” In making that statement, CSX relies primarily on a recent Sixth Circuit case, Nickels v. Grand Trunk Western Railroad, Inc. In that case, two railroad employees sued Grand Trunk for “fail[ing] to provide a safe working environment by using large mainline ballast— instead of smaller yard ballast — underneath and adjacent to tracks receiving heavy foot traffic.” 560 F.3d at 428 . The Sixth Circuit held that 49 C.F.R. § 213.103 “leaves the matter [of ballast size] to the railroads’ discretion so long as the ballast performs the enumerated support functions.

In this way, the regulation substantially subsumes the issue of ballast size.” Id. at 431. Because both employees alleged negligence in using large ballast “to support the railroad trade,” but not “in areas completely separate from those where track stability and support are concerned,” their claims were precluded by the regulation. Id. at 432-33. CSX argues further that “many courts have concluded that the [Federal Railroad Administration’s (“FRA”) ] ballast regulation ‘substantially subsumes’ the subject of — and therefore precludes — FELA claims such as [Pitts’s] that are based on the use of allegedly oversized ballast to support track structure.” CSX cites a number of cases standing for this proposition, including Brenner v. Consolidated Rail Corp., 806 F.Supp.2d 786, 796 (E.D.Pa.2011); McCain, 708 F.Supp.2d at 504 ; and Norris v. Cent. of Ga.

R.R. Co., 280 Ga.App. 792 , 635 S.E.2d 179, 183 (2006). Responding, Pitts relies on two Court of Special Appeals’ opinions — CSX Transportation, Inc. v. Miller and CSX Trans ⁴⁴⁴ portation, Inc. v. Bickerstaff — to argue that 49 C.F.R. § 213.103 does not preclude FELA claims based on negligent use of ballast in walkways. In Miller, like this case, the railroad employee filed suit under FELA to recover “for bilateral osteoarthritis of the knees caused by cumulative trauma occurring over the period of his employment with CSX.” 159 Md.App. 123, 146 , 858 A.2d 1025, 1038 (2004). In that case, CSX argued that any claim of injury caused by the use of ballast was precluded under 49 C.F.R. § 213.103 .

The Court of Special Appeals disagreed, stating: 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. Id. at 167 , 858 A.2d at 1050 . The court held that the employee’s FELA claim was not precluded because 49 C.F.R. § 213.103 does not cover the issue of walkways alongside the tracks.

Id. at 171 , 858 A.2d at 1052 . Likewise, Bickerstaff involved nine railroad employees who filed suit under FELA seeking recovery for knee injuries resulting from “walking on the rocks, or ballast, that makes up the surfaces of [CSX’s] rail yards.” 187 Md.App. 187, 201 , 978 A.2d 760, 768 (2009). There, CSX argued that Miller was wrongly decided and reasserted its claim that the employees’ claims of injury caused by walking on the ballast were precluded by 49 C.F.R. § 213.103 . Id. at 260-61, 978 A.2d at 802-03 .

In support of that argument, CSX relied primarily on a Georgia Court of Appeals’ case which held: “To the extent that [the employee’s] FELA claim rests upon different ways by which [the railroad] might have supported the mainline track to comply with 49 C.F.R. § 213.103 , the negligence claim is precluded.” Id. at 261, 978 A.2d at 803 (quoting Norris, 635 S.E.2d at 183 ) (quotation marks omitted). ⁴⁴⁵ But the Court of Special Appeals concluded that Norris was “entirely consistent with [its] decision in Miller [which] recognized that 49 C.F.R. § 213.103 governs the ballast along the mainline track and not the ballast in the rail yard.” Id. at 262-63, 978 A.2d at 803-04 . Affirming its holding in Miller, the Bickerstaff court held that the employees’ claims were not precluded because they were based on “maintaining safe walkways in the rail yards and make no mention of alternate ways in which [CSX] might have supported its mainline track.” Id. at 263-64 , 978 A.2d at 804 . As further support, Pitts argues that “at least 10 published opinions outside Maryland have held that 49 C.F.R. § 213.103 has no preclusive effect on FELA negligent walkway ballast choice claims or, in the case of state regulations, no preemptive effect on state ballast regulations.” 6 In debating whether Pitts’s claim is precluded, it is clear that the parties are talking past one another. CSX argues that 49 C.F.R. § 213.103 precludes any claim that it was negligent in its choice of ballast to support the tracks.

Pitts argues that 49 C.F.R. § 213.103 does not preclude his claim that CSX was negligent in its choice of non-support ballast used in walkways. Both positions are correct. We agree with CSX that 49 C.F.R. § 213.103 “covers” and “substantially subsumes” the use of ballast that supports the track. As the Sixth Circuit noted in Nickels : “Rather than prescribing ballast sizes for certain types or classes of track, the regulation leaves the matter to the railroads’ discretion so long as the ballast performs the enumerated support ⁴⁴⁶ functions.” 560 F.3d at 431 (emphasis added).

By directing “railroads to install ballast sufficient to perform key [track] support functions ..., [ 49 C.F.R. § 213.103 ] effectively narrows the universe of material the railroad may use in a given situation. The regulation thus determines what is a reasonable ballast composition and size for a particular track.” Id. Accordingly, the regulation “covers” and “substantially subsumes” any claim alleging negligent choice of ballast when the ballast performs a track-support function. We also agree with Pitts, however, that 49 C.F.R. § 213.103 does not “cover” or “substantially subsume” the use of ballast in walkways that do not perform a track-support function.

As Chief Judge Easterbrook of the Seventh Circuit recently stated: “no federal regulation deals with walkways.” Norfolk S. Ry. Co. v. Box, 556 F.3d 571, 572 (7th Cir.2009); see also Grimes, 116 F.Supp.2d at 1002-03 (“Every circuit that has considered the issue of walkways has concluded that the FRSA is silent on the question of walkways. The regulations are directed toward creating a safe roadbed for trains, not a safe walkway for railroad employees who must inspect the trains.”). This is made clear by the FRA’s decision in 1977 not to adopt federal walkway rules.

See Box, 556 F.3d at 573 . In 1976, FRA contemplated issuing rules about walkways and asked for comments about whether walkways adjacent to railroad tracks should be required. Id. (citing 41 Fed.Reg. 50,302 (1976)).

FRA decided not to adopt any regulations regarding the issue of walkways, stating that, “if an employee safety problem does exist because of the lack of walkways in a particular area or on a particular structure, regulation by a State agency that is in a better position to assess the local need is the more appropriate response.” Id. (quoting 42 Fed.Reg. 22,184-85 (1977)) (quotation marks omitted). Reviewing the cases, it appears that almost every court to have addressed the issue, including our own Court of Special Appeals, has agreed that 49 C.F.R. § 213.103 does not preclude claims based on ballast used in walkways. See Bicker-staff, 187 Md.App. at 263-64 , 978 A.2d at 804 ; Miller, 159 ⁴⁴⁷ Md.App. at 170-71 , 858 A.2d at 1052 ; see also Box, 556 F.3d at 572-73 ; Davis, 598 F.Supp.2d at 958-59 ; Grogg v. CSX Transp., Inc., 659 F.Supp.2d 998, 1014-16 (N.D.Ind.2009); Grimes, 116 F.Supp.2d at 1002-03 ; S. Pac.

Transp. Co. v. Pub. Util. Comm., 647 F.Supp. 1220, 1224-25 (N.D.Cal.1986); Elston v. Union Pac.

R.R. Co., 74 P.3d 478, 488 (Colo.App. 2003); DeHahn, 925 N.E.2d at 450-52 ; Booth, 334 S.W.3d at 901 ; Ill. Cent. Gulf R.R. Co. v. Tenn. Pub.

Serv. Comm., 736 S.W.2d 112, 116-17 (Tenn.App.1987); Hendrix v. Port Terminal R.R. Ass’n, 196 S.W.3d 188, 201 (Tex.App.2006). Indeed, even Nickels , the case most heavily relied on by CSX, recognized that 49 C.F.R. § 213.103 precludes claims based on the use of ballast only “so long as the ballast performs the enumerated support functions.” 560 F.3d at 431 . 7 Proving that the Ballast Performed a Track-Support Function Because it is clear that 49 C.F.R. § 213.103 precludes only claims pertaining to the use of ballast for the purposes of ⁴⁴⁸ supporting railroad track but not its use in the walkway areas, the true contention between the parties is not what 49 C.F.R. § 213.103 precludes, but whether Pitts’s claim was based on ballast that performed a track-support function, or ballast that served only as a walkway unrelated to track support. A resolution of this issue requires us to examine who has the burden of proof, and exactly what was proved at trial.

Allocation of the Burden of Proof In determining who bears the burden of proving that a claim is, or is not, precluded by a federal regulation, the Supreme Court has provided guidance. In Easterwood , the case which CSX urges us to follow, the Supreme Court held: To prevail on the claim that the regulations have preemptive effect, [the railroad company] must establish more than that they “touch upon” or “relate to” that subject matter ..., for “covering” is a more restrictive term which indicates that preemption will lie only if the federal regulations substantially subsume the subject 'matter of the relevant state law. (Citation omitted). 507 U.S. at 664 , 113 S.Ct. at 1738 . So, if a railroad company argues that a FELA claim is precluded by a FRSA regulation, then it has the burden of proving that such a regulation “substantially subsumes” the particular FELA claim.

See Cowden, 690 F.3d at 892-93 (taking this language from Easterwood and placing the burden of proof on the railroad company advocating preclusion of a FELA claim by a FRSA regulation). Federal preclusion, like its counterpart in federal preemption, is an affirmative defense. See Duluth, Winnipeg & Pac. Ry.

Co. v. City of Orr, 529 F.3d 794, 797 (8th Cir.2008) (“It is the burden of the party advocating preemption under § 20106(a)(2) to show that a federal law, regulation, or order covers the same subject matter as the state law, regulation, or order it seeks to preempt.”); Fifth Third Bank v. CSX Corp., 415 F.3d 741 , 745 (7th Cir.2005) (“Federal preemption is an affirmative defense upon which the defendants bear the bur ⁴⁴⁹ den of proof.”); Village of Ridgefield Park v. N.Y., Susquehanna & W. Ry. Corp., 318 N.J.Super. 385 , 724 A.2d 267, 272 (App.Div.1999) (“The railroad raises preemption as an affirmative defense and has the burden of persuasion to demonstrate the [plaintiffs] claims are indeed preempted.”). This Court has long held that “with all affirmative defenses, [the defendant] bears the burden of proof.” Wells Fargo Home Mortg., Inc. v. Neal, 398 Md. 705 , 730 n. 12, 922 A.2d 538 , 553 n. 12 (2007). 8 Indeed, even CSX conceded at oral argument that it bore the burden of proving that Pitts’s FELA claim was precluded. Requiring CSX to prove that Pitts’s FELA claim is precluded by 49 C.F.R. § 213.103 “is consistent with the ‘rule grounded in common sense that the burden of proving a fact is on the party who presumably has peculiar means of knowledge’ enabling him or her to establish the fact.” Arrington v. Dep’t of Human Res., 402 Md. 79, 102 , 935 A.2d 432, 446 (2007) (citation omitted).

As CSX maintains the track-support structure, it is in a far better position to prove which part of the ballast supports the track and which does not. 9 ⁴⁵⁰ Satisfying the Burden of Proof The question still remains as to the nature of that burden, and whether CSX satisfied it at trial. 10 We have already-concluded as a matter of law that 49 C.F.R. § 213.103 substantially subsumes any FELA claim based on ballast performing a track-support function. CSX’s burden, therefore, is to show that Pitts’s FELA claim falls into that category of ballast. CSX argues that it has met that burden and is entitled to judgment in its favor because “the evidence clearly established!;] that the ballast on which [Pitts] worked provides track support.” As examination of the testimony will show, CSX was not successful in this regard. Pitts testified that as a fireman, hostler, and brakeman, he would walk two to three miles a day.

As an engineer, he testified that he would walk between half-a-mile to a mile-and-a-half a day. To illustrate the surfaces on which he walked, Pitts identified numerous pictures of large ballast in CSX’s Baltimore yards and testified that those pictures reflected the conditions in which he was required to work. Pitts testified that he would most often encounter large ballast while he was working in the yards, and that the type of ballast on which he walked did not vary much between yards because they all contained “[p]retty much all road ballast.” Pitts then called Raymond Duffany as an expert in the area of railroad engineering and safety. Duffany testified that “the large ballast isn’t really safe to walk on.” He testified that in ⁴⁵¹ his experience, “after several years of putting the large ballast down in the yards, the number of injuries related to walking on ballast, such as slips, trips and falls, started to increase.” But after “a directive to start putting small ballast down in the yards,” those injuries went down.

He then testified that, according to industry standards, “[t]he one and a half inch ballast is too large for use in yard tracks. Three quarter inch [walking] ballast is to be used.” He also testified that CSX and the American Association for Railway Engineers adopted similar requirements. Yet, said Duffany, CSX was not in compliance with these standards. 11 Duffany identified numerous pictures he had taken of large ballast in CSX’s Baltimore yards. Some of those pictures even showed “very large pieces of rock that doesn’t [sic] fit into any ballast classification in the walkway area....

The size is so large that it would not fit into any of the acceptable sizes for main track or yard ballast.” Duffany testified that most of the pictures contained “an uneven walkway surface and it’s all large main line ballast.” He also concluded that “with the exception of a very few yards [CSX] consistently violated their own standards for walkways.” On cross-examination of Duffany, CSX sought to prove that the large ballast on which Pitts walked was necessary to support the track structure: Q: Mr. Duffany, you’ve defined a walkway in a rail yard as essentially anywhere within that rail yard that an employee might walk? A: That makes sense, yes. Q: And areas where an employee might walk within a rail yard, would necessarily include areas alongside the track or perhaps even within what’s known as the gauge of the track, would it not? A: That’s correct. ⁴⁵² Q: When we talk about the gauge of the track, that’s the area between the two train tracks where the train usually is?

A: That’s correct. Q: This gentlemen [sic] who is coupling the air hose actually has one foot within the gauge of the track or between the two tracks and one foot just outside the track? A: It appears that he does, yes. * * * Q: Ballast is directly underneath the track or within the gauge of the track. Does that help support the track structure?

A: Yes, it does. Q: Does that help drain the track structure? A: Yes. Q: Ballast that’s immediately adjacent to the track, is that also helping support and drain the track structure?

A: Yes, it is. Q: Necessarily, the areas where Mr. Pitts would walk during the course of his career as a railroad engineer, would include areas that were immediately alongside the track and, in fact, occasionally within the gauge of the track because of the fact that he works on locomotives, would they not? A: I believe so, yes. CSX also got Duffany to concede that CSX would be in compliance with its own standards and industry standards for areas where CSX had small ballast in its yards.

During the defense’s case, CSX called a witness to rebut Pitts’s claim that it used large ballast in the areas where Pitts worked. As its corporate representative, CSX called Matt Gross, who serves as the Road Foreman of Engines and supervises the locomotive engineers in his territory. Gross testified that he took about 3,000 steps in the typical work ⁴⁵³ shift. When asked on what surfaces those steps were taken, the following exchange took place: A: Well, they were in the office.

They were on paved driveway, walking up towards, you know, 22 Track at Locust Point. They were inspecting a locomotive. Walking around a locomotive. They were walking in different places also on the locomotive itself and on the walkways of a locomotive.

Q: We have heard a lot of discussion in this case of what has been generically called big ballast.... Q: What kind of ballast did you use on the main line tracks? A: Well, main track ballast. Q: What kind of ballast did you use on the yard tracks?

A: Yard ballast. Contradicting Duffany’s testimony, Gross testified that all of CSX’s Baltimore yards contain small ballast. Yet, after Gross reviewed during cross-examination the photographs of large ballast taken by Duffany, he acknowledged there was large ballast in the yards, asserting that those are places where engineers never walk. To support his testimony, Gross identified numerous photographs taken by CSX showing small ballast in areas of CSX’s Baltimore yards where engineers would regularly walk.

The defense then rested without eliciting any other form of testimony or evidence regarding whether the claims made by Pitts regarded ballast that performed a track-support function or not. At that point, CSX moved for judgment, arguing that Pitts’s claim was precluded as a matter of law because parts of it were based on ballast that performed a track-support function: [Defense Counsel]:Your Honor, with regard to those areas — the areas that not are simply and strictly walkways, but that are in fact, parts of the track and parts of the track ⁴⁵⁴ structure and these are areas that clearly Mr. Pitts is claiming— * * * [Defense Counsel]: With regard to that task, for instance, where a foot is clearly inside the rail and the Plaintiff, when doing the task, would have to be actually within the track structure.... [Defense Counsel]: Your Honor, just for the record, under 49 CFR 213 the ballast that’s within the track structure where Mr. Pitts was performing inspections, was changing air hoses is, in fact, part of the track structure and not part of the rail yard. Hearing the argument, the trial court was obviously concerned that there was insufficient evidence to prove the preclusion defense as a matter of law: The Court: Well, I only know of one that’s been referred to and identified by anyone. [Defense Counsel]: I would suggest that it’s not just the areas stepped while performing air hoses, but also the locomotive inspection, which is an area that Mr. Duffany— The Court: Well, I don’t know that.... [Defense Counsel]: — testified that those are areas adjacent to the tracks and supportive of the track structure. The Court: Well, those are two separate things, an area adjacent to requires definition.

The question becomes as to what it is by definition for exclusion. [Defense Counsel]: And my suggestion, Your Honor, would be that the areas within the gauge of the track and the areas immediately adjacent to the track where Mr. Pitts was performing those items, are areas that are preempted or precluded — (Emphasis added.) ⁴⁵⁵ While pondering the motion, the trial court asked defense counsel for the specific evidence showing that Pitts walked on ballast that performed a track-support function: The Court: Do I have— The Court: — any evidence of that other than the one picture in question? [Defense Counsel]: You have the evidence from Plaintiffs liability expert, who on cross conceded that those are areas where Mr. Pitts worked and that were supportive of the track structure under 219 CFR. The Court: No. He did say that there was an area that supported a track structure and the Court would agree with you, if you’re referring to ballast that is in support of the track structure.... [Defense Counsel]: Because those tasks were done on ballast that is covered — and it’s completely covered and therefore preempted under the Federal Track Safety Standards, there are portions of Plaintiffs claim that cannot be distinguished from the remaining ballast. The Court: If you, in fact, were able to isolate it I will respond, but if you’re going to sing to the wind you’re wasting my time. (Emphasis added.) Concluding its preclusion argument, CSX asserted: [Defense Counsel]: Just to finish the argument the suggestion would be the doctors wouldn’t be able to distinguish the tasks that were done on that type of ballast from walking between the trains and the yard office or any other areas.

Therefore, they can’t distinguish injury — (Emphasis added). These passages from the trial demonstrate that the only instance in which CSX attempted to adduce evidence to meet its burden of showing that Pitts only or primarily walked on support ballast was during the cross-examination of Pitts’s expert Duffany. CSX cites testimony where Duffany acknowledged that ballast “directly underneath the track or within the ⁴⁵⁶ gauge of the track” and ballast “immediately adjacent to the track” are used to support the track structure. CSX argues that Pitts worked in this area, pointing to Pitts’s testimony that his “duties were of the sort that required him to be either within the gauge of the track or immediately adjacent to the track.” It is this testimony, in addition to one picture in which a person coupling an air hose is shown with one leg inside the track rails, on which CSX bases its entire preclusion defense.

Fatal to CSX’s defense is that it never proved what area of ballast actually provides the track support. It is likely that Pitts walked on some track-support ballast. But to warrant the grant of its motion for judgment on preclusion grounds, CSX was required to show what area of ballast was used for track support, so that the trial court could determine whether that area substantially covered the places where Pitts walked on ballast. CSX claims that the track-support structure included the ballast located “immediately adjacent to the track.” 12 But, this general phrase is not self-defining, and CSX never defined the area it considered to be “immediately adjacent to the track.” 13 This is important, because without such a definition it is impossible to tell where the track-support structure is located.

Under the phrase “immediately adjacent to,” the track-support structure could extend beyond the rails by two inches or six feet or more. 14 Clearly there must be some ⁴⁵⁷ outer limit to the track-support structure. But, CSX’s failure to delineate its size and shape, as well as to establish how often Pitts walked on this track-support structure, 15 made it impossible for the trial court to rule, as a matter of law, that CSX met its burden of proving preclusion. Instead, CSX now relies on evidence showing, at most, that at some point during some portion of his job, Pitts walked on ballast that was part of the track-support structure. Evidence that Pitts walked on track-support ballast could have contributed to a preclusion defense — if CSX had (1) proven where the track-support ballast was located, and (2) then asked for jury resolution of the question of whether walking on track-support ballast substantially caused his injury. 16 Yet CSX did neither of these things, perhaps for strategic reasons.

Without such evidence and a factual resolution of this issue, CSX cannot prevail, on appeal, in its claim that 49 C.F.R. § 213.103 “substantially subsumes” Pitts’s FELA claim. Jury Instructions Alternatively, CSX seeks a new trial based on two allegedly erroneous jury instructions: 17 the first, informing ⁴⁵⁸ the jury about the history and purpose behind the enactment of FELA; and the second, telling the jury that violation of a statute is evidence of negligence. We review a trial judge’s decision whether to give a jury instruction under the abuse of discretion standard. Conyers v. State, 354 Md. 132, 177 , 729 A.2d 910, 934 (1999).

Moreover, we will overturn a jury verdict and grant a new trial based on such an error only if it rises to the level of prejudicial error. In determining whether there was error, “[i]t is well settled that when [an] objection is raised to a court’s instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole.” Collins v. State, 318 Md. 269, 283 , 568 A.2d 1, 8 (1990) (citation and quotation marks omitted). Error will be found if the given instruction is not supported by evidence in the case. Rustin v. Smith, 104 Md.App. 676, 680 , 657 A.2d 412, 414 (1995).

The proven error must then be prejudicial, not harmless. In Barksdale v. Wilkowsky, we discussed the distinction between a prejudicial and harmless error at length. 419 Md. 649 , 20 A.3d 765 (2011). We stated that for an error to be prejudicial, “the complainant must show that prejudice [is] ‘likely’ or ‘substantial.’ ” Id. at 662 , 20 A.3d at 773 (citation omitted). In other words, the “complainant who has proved error must show more than that prejudice [is] possible; she must show instead that it was probable.” Id.

Statutory Purpose of FELA First, CSX objects to the following portion of the trial judge’s instruction to the jury regarding FELA’s history and purpose: ⁴⁵⁹ For your understanding, ... the Federal Employers Liability Act was, in fact, enacted back in 1908.... The reason ... 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. Relying on the Fourth Circuit case Stillman v. Norfolk & Western Railway Co., CSX argues that informing a jury about the underlying purpose of enacting a statute is contrary to the law, and thus error. In that case, a railroad employee argued that the trial court had committed error “in refusing to permit his counsel to present an argument to the jury concerning Congress’s intent in enacting the FELA.” Stillman, 811 F.2d 834, 838 (4th Cir.1987).

In rejecting the claim of error, the Fourth Circuit stated: “So long as the jury was properly instructed on the applicable law, we can see no reason why it would be either necessary or appropriate for the jury to hear an argument about Congress’s intent in enacting the law.” Id. CSX seeks to capitalize on this language to support its stated proposition that “informing the jury about Congress’s reason for enacting FELA is improper.” Pitts counters that “this Court and the Court of Special Appeals have held that informing jurors of a statute’s purpose is not error.” For support, Pitts cites Dillon v. State, 277 Md. 571 , 357 A.2d 360 (1976), abrogated in part by Stevenson v. State, 289 Md. 167 , 423 A.2d 558 (1980), as stated in Unger v. State, 427 Md. 383, 413 , 48 A.3d 242, 260 (2012). In Dillon , while instructing the jury in a criminal case, involving charges of robbery and handgun offenses, the trial judge read from the “Declaration of Policy” for the handgun legislation. Id. at 573-74 , 357 A.2d at 363 .

The Declaration discussed an “alarming increase” in violent crimes involving handguns, a “substantial increase” in people killed due to handguns, the ineffectiveness of previous laws, and the necessity of the current law “to preserve the peace and tranquility of the State.” Id. In finding no error, this Court stated that, “the recitation of the ‘Declaration of Policy’ did no more than relate the purposes behind the enactment of the statute upon which [the counts] were based, the preamble was accurately stated, ⁴⁶⁰ and was an aid and means of enlightenment to the deliberations of the jury as judges of the law.” Id. at 585 , 357 A.2d at 369 (citations omitted). In deciding whether the statutory purpose instruction was proper, we observe that neither party’s support is overly persuasive. Stillman did not involve a jury instruction.

Rather, it involved an attorney who wanted to argue the purpose of FELA to the