Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shutter v. CSX Transp., Inc.

Court of Special Appeals of Maryland

January 29, 2016

MELODY SHUTTER
v.
CSX TRANSPORTATION, INC

Page 1144

         Appeal from the Circuit Court for Baltimore City, Lynn Stewart, JUDGE.

         ARGUED BY Richard P. Gilardi (Gilardi, Oliver & Lomup of Pittsburgh, PA. Stephen A. Markey, III of Towson, MD) on the brief FOR APPELLANT.

         ARGUED BY M. Natalie McSherry (Amy E. Askew, Ryan A. Mitchell, Kramon & Graham, PA of Baltimore, MD) on the brief FOR APPELLEE.

         Panel: 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.

          OPINION

Page 1145

         [226 Md.App. 626]  Deborah S. Eyler, J.

         Kevin F. Arthur, J., did not participate in the Court's decision to report this opinion pursuant to Md. Rule 8-605.1.

         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 [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 esse

Page 1146

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 [226 Md.App. 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

Page 1147

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 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 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.

         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 [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.[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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.