Shutter v. CSX Transportation, Inc.

DEBORAH S. EYLER, J. In the Circuit Court for Baltimore City, Melody Shutter, the appellant, filed suit against her employer, CSX Transportation, Inc. (“CSX”), the appellee, under the Federal Employers’ Liability Act (“the FELA”), 45 U.S.C. §§ 51 et seq. Shutter alleged that she had suffered a repetitive trauma injury to her lower back as a result of CSX’s negligence. CSX moved to preclude Shutter’s expert witnesses, because they were designated late, and to exclude certain evidence, and for summary judgment. The circuit court heard argument and granted CSX’s motions to exclude Shutter’s liability expert and to preclude parol evidence about the meaning of a release.

It then granted summary judgment in favor of CSX on two bases: that Shutter’s claim was barred by the release and that, because Shutter’s liability expert had been excluded, she could not prove a breach of the standard of care. CSX also had moved for summary judgment on the ground that Shutter’s claim was time-barred. The court declined to grant summary judgment on that basis. Shutter appeals, presenting six questions for review, which we have combined, rephrased, and reordered: I. Did the circuit court err by granting summary judgment in favor of CSX on the ground that her claim was ⁶²⁷ barred by a release, and by precluding parol evidence of Shutter’s understanding of the release?

II

Did the circuit court err by excluding Shutter’s liability expert and granting summary judgment in favor of CSX on the ground that she could not establish a breach of the standard of care?

III

Did the circuit court err by sustaining certain objections made by counsel for CSX during the de bene esse depositions of two of Shutter’s medical experts?

IV

Did the circuit court err by ruling that evidence of an offer made by CSX to pay Shutter’s college tuition would be admissible at trial? In a conditional cross-appeal, CSX asks whether the circuit court erred by denying its motion for summary judgment on the basis of limitations. For the following reasons, we conclude that the court correctly ruled that Shutter’s claim was barred by the release, and also correctly ruled that Shutter could not make out a prima facie case of negligence. Because we shall affirm the grant of summary judgment on these bases, we shall not reach the remaining issues presented by Shutter or CSX’s cross-appeal.

FACTS AND PROCEEDINGS Shutter, who is 50 years old, has been employed by CSX and one of its predecessors, Consolidated Rail Corporation, since 1993. In the 1990s and early 2000s, she worked as a “carman,” inspecting and repairing freight rail cars. In the course of this work, she began experiencing pain in her low back, ankles, and hand. In 2002, she went out on medical leave.

In early 2003, 1 Shutter , underwent surgery to fuse her vertebrae at the L4-L5 and L5-S1 levels of her lumbar spine. Thereafter, on July 8, 2003, she met with a CSX Claims ⁶²⁸ Representative and executed a “Release Agreement” (“the Release”). 2 The Release states that Shutter made a claim against CSX alleging that she had been exposed to “excessive and harmful repetitive motion, strain, vibration of any type or intensity and/or cumulative trauma due to the equipment and methods with which [ ]she performed [ ]her work,” and that as a result, she had sustained injuries to her back and both ankles. The injuries included “intrasubstance changes and arthritic changes and disc herniation and/or bulge located at L4-5 and L5-S1, (hereinafter collectively referred to as ‘Repetitive Strain Injury’) including any disorder of any type or origin or any condition, illness or injury resulting therefrom or relating thereto.” (Italicized emphasis added.) The Release further provides that in consideration for the payment by CSX of $68,000, Shutter does hereby release and forever discharge [CSX] from all legal liability for personal injuries as set forth herein, known or unknown, foreseen or unforeseen, including claims, causes of action, ... and demands for monetary compensation of any nature, which [Shutter] has or claims to be entitled by reason of [her] alleged Repetitive Strain Injury, its progression and/or consequences, any future damages, general or special, that [Shutter] may incur in an attempt to alleviate or cure [her] alleged Repetitive Strain Injury, including surgery or surgeries, as well as correction of any conditions relating to [her] Repetitive Strain Injury, and any increased risk of contracting any physical disorder related thereto. (Emphasis added.) In the Release, Shutter acknowledges that she understands that her injury “may be permanent and/or may naturally progress and/or may become permanently disabling in the future”; that “recovery therefrom is uncertain”; and that “future medical treatment, including surgery, may be neces ⁶²⁹ sary in an attempt to alleviate or treat said Repetitive Strain Injury.” She agrees that she has not been induced to enter into the Release by any representations about the “nature and extent of [her] present or future condition,” and is relying “wholly upon [her] own judgment, belief, and knowledge of the nature and extent of [her] injuries, including the permanency and the possibility of progression of such injuries.” She acknowledges that the “possible future effects of [her] Repetitive Strain Injury are specifically bargained for herein, included, and released in exchange for the payment of [$68,000].” The Release specifies that it does not release “any claim [Shutter] may have in the future for a solely new and distinct railroad employment related injury.” In October of 2004, Shutter returned to work as a carman. 3 In 2007, Riva Gill, M.D., an internist, became her primary care physician.

Over the next four years, Dr. Gill treated Shutter for recurrent low back pain and muscle spasms, prescribing pain medication and muscle relaxers. Meanwhile, in 2008, Shutter applied for and received a transfer to a “line of road” position at CSX. As a “line of road” worker, Shutter drove to locations around the 1-95 corridor, between Jessup to the north, Richmond, Virginia to the south, and Rockville to the west, repairing trains on the main lines. Initially, she traveled "with a partner and they made repairs as a team.

Around 2009, her partner was transferred as a result of misconduct and was not replaced. From that point forward, Shutter performed her “line of road” work alone. In January of 2010, Shutter went to Dr. Gill with complaints of “severe” low back pain. According to Dr. Gill, at that time Shutter’s pain was getting “progressively worse,” but still was muscular in presentation.

On September 23, 2011, Dr. Gill treated Shutter for new symptoms, including radiating leg pain and numbness in her ⁶³⁰ lower extremities. After performing an arterial Doppler study to rule out a vascular cause for the symptoms, Dr. Gill diagnosed Shutter with lumbar radiculopathy, possibly caused by a herniated disc in her spinal cord. 4 Dr. Gill sent Shutter for an MRI and advised her to follow up with an orthopaedic surgeon. On October 13, 2011, Shutter met with Leonid Selya, M.D., a spine surgeon. He reviewed her MRI, which showed a herniated disc at the L3-L4 level of her lumbar spine, directly above the level of her fusion, and significant spinal stenosis, or narrowing of the space in the spinal column, at that level as well.

On November 22, 2011, Dr. Selya operated on Shutter to remove the hardware from her 2003 fusion and to fuse her spine at the L3-L4, L4-L5, and L5-S1 levels. On July 18, 2013, Shutter filed the instant action in the Circuit Court for Baltimore City, asserting a claim under the FELA. 5 The FELA creates a “statutory cause of action for railroad employees who suffer workplace injuries as the result of the negligence of the railroad.” Blackwell v. CSX Transp., Inc., 220 Md.App. 113, 117 , 102 A.3d 864 (2014), cert. denied, 442 Md. 194 , 112 A.3d 373 (2015). Shutter alleged that CSX had “negligently assign[ed] her to physically demanding work performed often times on a repetitive basis, with irregular motions and unnatural postures of the body and without adequate help,” and that, as a direct and proximate result, she suffered low back injuries, spine injuries, injuries to her lower and upper extremities, aggravation of a preexisting lumbar condition, and other serious and severe injuries. 6 ⁶³¹ On September 2, 2014, CSX moved for summary judgment. It argued, inter alia, that Shutter’s claims were barred by the three-year statute of limitations under the FELA, and by the Release. 7 On October 10, 2014, the motion was denied without prejudice on those bases. 8 Shutter was deposed on October 7, 2014.

As relevant here, she testified that after her 2003 spinal fusion surgery, she was approached by Carl Kaiser, a claims representative for CSX, and executed the Release. She explained that it was her understanding that she was releasing any claims arising from the injury to “L4 to SI,” including “any progression” of that injury. She stated that before she signed the Release she asked Kaiser “if I get, like, an injury, like, to my neck or, you know, to my spine, is there going to be a problem?” According to Shutter, he replied that the Release only “cover[ed] the ... levels that you have had your surgery.” Shutter designated Drs. Gill and Selya as expert medical witnesses on the issues of causation and damages.

Dr. Gill was deposed on October 29, 2014. She testified that between 2007 and 2009, Shutter complained of low back pain and muscle spasms of the lower back. Dr. Gill opined that the pain and spasms were muscular in nature and she did not view the pain as being connected to Shutter’s 2003 surgery. Dr. Gill prescribed Vicodin for the pain and a series of muscle relaxers to treat the spasms.

In Dr. Gill’s opinion, Shutter’s neurological symptoms in 2011 were a “different injury” from the injury that led to the 2003 spine surgery. She explained that because Shutter “had a fusion before, ... if [a new disc herniation] was to happen, it [could] not be at [the level fused in 2003].” She clarified that she meant that the “radiculopathy ha[d] to be at a different ⁶³² level than from before ... [because] [t]he [old] level is fused.” Dr. Gill opined that Shutter developed the 2011 disc herniation because of “excessive and repetitive lifting” during her job. In Dr. Gill’s opinion, Shutter had not suffered a traumatic injury; rather, “[o]ver time [she] ... gradually developed a problem in her back.” Dr. Gill was asked whether “the fusion of one level [of the spine] puts any added strain on adjacent levels [of the spine] to the one that is fused?” She replied, “[n]ot without any trauma.” She did not offer any other opinions about the relationship between Shutter’s disc herniation at the L3-L4 level and her prior fusion surgery. Dr. Selya was deposed on November 19, 2014.

He explained that he met with Shutter for the first time in October of 2011 and operated on her on November 22, 2011. He stated that her medical history made clear that she “never [had] recovered her symptoms completely after the [2003] surgery” and had been “in pain for at least seven years.” Dr. Selya opined that Shutter’s 2011 symptoms — numbness and radiating pain — were caused by “adjacent disc disease.” He explained that adjacent disc disease means changes to the “dis[c] next to the previously fused levels” resulting from “increased pressure on the adjacent dis[c]s” and the lack of mobility in the fused part of the spine. In Shutter’s case, the adjacent disc disease presented as spinal stenosis, which is a narrowing of the space in the spinal column, caused by a ruptured disc at the L3-L4 level of her spine. According to Dr. Selya, “[r]adiologically a majority of people [who have spine fusion surgery] will develop signs of adjacent dis[c] disease,” but “very few of them will have clinical presentations” and even fewer will have neurologically involved symptoms.

He opined that it was unusual for adjacent disc disease to lead to the “degree of spinal stenosis” experienced by Shutter. Her adjacent disc disease and resulting spinal stenosis were, however, a “progession of having [her] spine ... fused.” In Dr. Selya’s opinion, Shutter developed “surgically aggravated trauma to the adjacent dis[c],” meaning that ⁶³³ the repetitive lifting and bending at work “caused such a rapid deterioration” of her adjacent disc. Thus, while Shutter’s adjacent disc disease was “by definition ... related to the [2003] surgery,” its progression into “symptomatic dis[c] herniation and spinal stenosis” was “precipitated by the excessive trauma” of her work. Dr. Selya agreed that, more likely than not, Shutter would not have developed adjacent disc disease had she not had the surgery in 2003.

On December 1, 2014, CSX filed a second motion for summary judgment based on limitations and on the Release. With respect to the Release, it argued that Shutter had released all claims relative to her 2003 spinal fusion surgery and the progression of her lumbar spine injury, including the possible need for future surgery. It maintained that, given Dr. Selya’s opinion that Shutter’s 2011 symptoms were caused by a rapid progression of adjacent disc disease, and that adjacent disc disease is, by definition, a disease of a disc adjacent to a fused vertebrae, any claim based on the 2011 disc herniation was barred by the Release. Shutter responded that there was a genuine dispute of material fact as to whether the disc herniation at the L3-L4 level of her lumbar spine was a new injury.

She pointed to Dr. Gill’s deposition testimony that she viewed the radiculopa-thy diagnosis in 2011 as a “different injury,” and Dr. Selya’s deposition testimony that Shutter would not have developed symptomatic adjacent disc disease but for the repetitive trauma of her job. Trial was scheduled to commence on January 6, 2015. On that day and the next, the court heard argument on numerous pending motions. In one motion, CSX sought to preclude Shutter from calling Maury Nussbaum, Ph.D., an expert in ergonomics, on the ground that he was not timely designated.

The court granted CSX’s motion to exclude parol evidence about the meaning of the Release 9 and granted summary ⁶³⁴ judgment in favor of CSX on the ground that Shutter’s claim was barred by the Release. The court opined that the Release was “clear” and “unambiguous on its face” and “encompass[ed] any alleged injury” in this case. The court granted CSX’s motion to preclude Dr. Nussbaum from testifying, and also granted summary judgment on the ground that without an expert witness on the applicable standard of care for a “line of road” position, Shutter could not prove negligence. As noted, the court denied summary judgment on limitations.

This timely appeal and cross-appeal followed. DISCUSSION We review the grant of a motion for summary judgment de novo. Baltimore County v. Kelly, 391 Md. 64, 73 , 891 A.2d 1103 (2006). Thus, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. [Livesay v. Baltimore, 384 Md. 1, 9-10 , 862 A.2d 33 (2004) ].

We review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party. Id. at 10 , 862 A.2d at 38 . Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520 (2006). I. Release Shutter contends the circuit court erred in construing the Release to bar her claim.

She maintains that the scope of the Release was limited to an aggravation or progression of the injury at the L4-L5 or L5-S1 levels of her spine, not to a new injury at a different level of her spine. She asserts that, to the extent the Release may be construed to encompass the 2011 disc herniation and surgery, it is void under Section 5 of the FELA because its scope is too broad. Shutter also argues that the court erred in precluding her from testifying about ⁶³⁵ her conversation with Kaiser about the meaning of the Release. CSX responds that the Release is clear and unambiguous and plainly encompasses an injury to the immediately adjacent disc in Shutter’s spine that would not have occurred but for the 2003 spinal fusion surgery.

Shutter specifically bargained for and released CSX from liability premised on the progression of her existing injury, and adjacent disc disease is such a progression. Moreover, because adjacent disc disease is a known risk of spinal fusion surgery, the Release is valid under Section 5 of the FELA and bars Shutter’s claim. Also, because the Release is clear and unambiguous, and because it states that Shutter is entering into it based on her own judgment and that no representations have been made to her about the nature and extent of the liability of CSX, the court did not abuse its discretion in ruling that parol evidence was not admissible. A release is a contract subject to “ordinary contract principles.” Chicago Title Ins.

Co. v. Lumbermen’s Mut. Cas. Co., 120 Md.App. 538, 548 , 707 A.2d 913 (1998); see also Bernstein v. Kapneck, 290 Md. 452, 459 , 430 A.2d 602 (1981). Thus, it “ ‘is to be construed according to the intent of the parties and the object and purpose of the instrument, and that intent will control and limit its operation.’ ” Pantazes v. Pantazes, 77 Md.App. 712, 719-20 , 551 A.2d 916 (1989) (quoting Shriver v. Carlin & Fulton Co., 155 Md. 51, 64 , 141 A. 434 (1928)). “ ‘[W]here a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed.’ ” Id. at 720, 551 A.2d 916 (quoting Kasten Constr. v. Rod Enters., 268 Md. 318, 328 , 301 A.2d 12 (1973)).

Whether a contract, including a release, is ambiguous, is a question of law that we decide de novo. Calomiris v. Woods, 353 Md. 425, 434 , 727 A.2d 358 (1999). A contract is ambiguous if it reasonably can be understood to have two different meanings. Id. at 436 ,