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Csx Transportation, Inc. v. Edward L. Pitts

February 28, 2013


Circuit Court for Baltimore City Case No. 24-C-08-007698

The opinion of the court was delivered by: Adkins, J.

CSX Transportation, Inc. v. Edward L. Pitts, Sr.,

Case No. 34, September Term 2012,

Opinion by Adkins, J.

TORTS - TRANSPORTATION LAW - RAIL TRANSPORTATION - FEDERAL EMPLOYERS LIABILITY ACT - FEDERAL PRECLUSION - BALLAST: The Federal Railroad Safety Act ("FRSA") regulation 49 C.F.R. § 213.103 precludes a negligence claim brought under the Federal Employers Liability Act ("FELA"), if that claim involves ballast that performs a track-support function. But the regulation does not preclude a FELA claim that alleges a negligent use of ballast in walkways.

TORTS - TRANSPORTATION LAW - RAIL TRANSPORTATION - FEDERAL EMPLOYERS LIABILITY ACT - FEDERAL PRECLUSION - AFFIRMATIVE DEFENSE - BURDEN OF PROOF: Federal preclusion is an affirmative defense, and therefore, the defendant railroad bears the burden of proving that a FELA claim is precluded by a FRSA regulation.

CIVIL PROCEDURE - JURY INSTRUCTIONS - PREJUDICIAL ERROR: Instructing the jury as to Congress's initial purpose for enacting FELA, within the context of explaining to the jury why FELA cases are unique, was not prejudicial error. And, erroneously instructing the jury that violation of a statute can be evidence of negligence was not prejudicial when there is no evidence of a statute that the defendant violated.

TORTS - DAMAGES - COLLATERAL SOURCE RULE: Evidence stating only the age at which a person is likely to retire is different than evidence of one's eligibility to receive benefits upon retirement, and therefore, does not implicate the collateral source rule.

EVIDENCE - CROSS-EXAMINATION - SCOPE: Questions on cross-examination that assume facts not in evidence or have the potential to elicit an answer containing inadmissible evidence are objectionable.

EVIDENCE - RELEVANCE - WORKLIFE EXPECTANCY STATISTICS: When future wage loss is at issue, industry-wide worklife expectancy statistics are generally relevant because they cull statistics about life expectancy, health, retirement, and withdrawal that are used to project a worklife expectancy for the average railroad worker of the same age and years of service.

Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald, JJ.

Opinion by 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 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.*fn1 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 plaintiff's expert economist regarding industry-wide worklife expectancy.


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 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.

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, Inc. 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 (2007), when it adopted "an employee-friendly standard of review" in FELA cases.

3. Whether a defendant should be allowed to cross-examine a plaintiff's economist about work-life statistics which show that the plaintiff's 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 abuse his discretion in limiting, without banning, questions about worklife expectancy tables on cross-examination.


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.*fn2 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 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.


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 (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 ."*fn3 Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S. Ct. 440, 442 (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 uniform 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.*fn4 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 (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 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).*fn5 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); Meyers v. Ill. Cent. R.R. Co., 753 N.E.2d 560, 565 (Ill. App. Ct. 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;

(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 track," 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. 9

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., 635 S.E.2d 179, 183 (Ga. Ct. App. 2006).

Responding, Pitts relies on two Court of Special Appeals' opinions--CSX Transportation, Inc. v. Miller and CSX Transportation, 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).

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."*fn6

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 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 Bickerstaff, 187 Md. App. at 263-64, 978 A.2d at 804; Miller, 159 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.*fn7

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 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 pre-emptive 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 pre- emption 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 burden of proof."); Village of Ridgefield Park v. N.Y., Susquehanna & W. Ry. Corp., 724 A.2d 267, 272 (N.J. Super. Ct. App. Div. 1999) ("The railroad raises preemption as an affirmative defense and has the burden of persuasion to demonstrate the [plaintiff's] 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).*fn8 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.*fn9

Satisfying the Burden of Proof

The question still remains as to the nature of that burden, and whether CSX satisfied it at trial.*fn10 We have already concluded as a matter of law that 49 C.F.R. ยง 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 ...

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