from the Circuit Court for Baltimore City, Lynn Stewart,
BY Richard P. Gilardi (Gilardi, Oliver & Lomup of Pittsburgh,
PA. Stephen A. Markey, III of Towson, MD) on the brief FOR
BY M. Natalie McSherry (Amy E. Askew, Ryan A. Mitchell,
Kramon & Graham, PA of Baltimore, MD) on the brief FOR
Eyler, Deborah S., Berger, Moylan, Charles E., Jr. (Retired,
Specially Assigned), JJ. Kevin F. Arthur, J., did not
participate in the Court's decision to report this
opinion pursuant to Md. Rule 8-605.1.
Md.App. 626] Deborah S. Eyler, J.
F. Arthur, J., did not participate in the Court's
decision to report this opinion pursuant to Md. Rule 8-605.1.
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
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 [226 Md.App.
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
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?
conditional cross-appeal, CSX asks whether the circuit court
erred by denying its motion for summary judgment on the basis
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
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
early 2003, 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 [226
Md.App. 628] Representative and executed a " Release
Agreement" (" the Release" ).
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,
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
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 necessary [226 Md.App. 629] 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
October of 2004, Shutter returned to work as a
carman. 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
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
I-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.
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.
September 23, 2011, Dr. Gill treated Shutter for new
symptoms, including radiating leg pain and numbness in her
[226 Md.App. 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. Dr. Gill sent Shutter for an MRI and
advised her to follow up with an orthopaedic surgeon.
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