No. 92-507
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
LISA COTTRELL, as personal representative
of the estate of VERN COTTRELL,
Plaintiff and Respondent,
BURLINGTON NORTHERN RAILROAD
COMPANY, a corporation,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Russell D. Yerger, Kroschel & Yerger, Billings,
Montana; J. Michael Young, Jardine, Stephenson,
Blewett & Weaver, Great Falls, Montana
For Respondent:
Erik B. Thueson and John A. Kutzman,
Thueson Law Offices, Helena, Montana;
-
Dennis P. Conner. Attornev at Law,
Falls, ~ontana
Submitted on Briefs: July 1, 1993
Decided: November 3, 1993
M.
I
' Clerk
Justice Terry N. Trieweiler d pinion of the Court.
Plaintiff Vern Cottrell tion in the District
Court for the Eighth Judicial District in Cascade County, Montana,
to recover damages for injuries sustained during the course of his
employment with defendant Burlington Northern Railroad Company.
Following a jury trial, the jury returned a verdict for plaintiff,
finding that defendant's negligence caused plaintiff damages in the
amount of $1,362,236. Defendant appeals from the judgment entered
pursuant to that verdict. We affirm the judgment of the District
Court and remand with instructions.
The issues on appeal are:
1. Did the District Court commit reversible error when it
excluded the opinion of Neil Meyer, M.D., regarding apportionment
of plaintiff's damage between the incident which was the subject of
this complaint and prior injuries?
2, Did the District Court commit reversible error when it
excluded the testimony of Judy Freeman and her letter to
plaintiff's attorney?
3. Did the District Court err when it rejected two of
defendant's proposed jury instructions which pertained to
contributory negligence and limitation of defendant's liability for
plaintiff's pre-existing injuries?
4. Did the District Court err when it failed to rule on
defendant's motion to amend the judgment, and declined to offset
from the judgment monies paid to plaintiff by defendant and from
other sources prior to trial?
DISCUSSION
This action was brought by Vern Cottrell pursuant to the
Federal Employers Liability Act found at 45 U.S.C. 5 51 through 60
(1988). In his complaint and amended complaint, Cottrell alleged
that in the winter of 1989, while working for the Burlington
Northern Railroad Company in its maintenance of way department, he
injured his back while operating some of defendant's machinery.
Specifically, he alleged that in early winter 1989 he had been
operating a small crane-like piece of machinery known as a "speed
swingw over rough ground in the railroad yard, and that because
that piece of equipment had an inadequate and worn out seat
incapable of absorbing shock, his back was damaged while operating
it. In addition, he alleged that on May 15, 1989, while operating
an additional piece of machinery used for track maintenance and
known as an llelectromatic,lt injured his back while lifting
he
"buggiesw which were used in combination with the electromatic and
had to necessarily be loaded on it. He alleged that his injuries
were caused by defendant's negligent failure to provide him with a
safe place to work, adequate assistance to perform his job safely,
and reasonably safe equipment.
In answer to Cottrellls complaint, defendant admitted that
Cottrell was an employee and that during the course of his
employment he had operated its machinery, but denied all of
Cottrellls other material allegations. For affirmative defenses,
defendant alleged that Cottrell was contributorily negligent, his
damages were caused by pre-existing conditions, his damages were
aggravated by his own failure to mitigate them, and that it was
entitled to a credit against any money it had already paid him.
The evidence at trial established that Cottrell had first gone
to work for defendant in 1976 as a section laborer doing track
maintenance and began operating different types of machinery for
defendant in 1977. He originally injured his back during the
course of his employment in the fall of 1980 while trying to lift
railroad ties onto a truck. Following that injury, two surgical
procedures were performed on his back in the area of the 4th and
5th lumbar vertebrae. The first surgery was to remove that part of
the intervertebral disc which had ruptured as a result of his
injury. The second surgical procedure was to treat other
complications in the same area which resulted from the injury and
the first surgery.
The evidence indicated that by July 1982, Cottrell was
released by his treating physician to return to work for defendant
without restrictions. He did so, and returned to all of his normal
duties. However, in late 1988 or early 1989, he began to operate
the speed swing, which had a cracked and broken seat incapable of
absorbing shock. He was required to operate the speed swing across
tracks and over rough ground. Over the several weeks that he
operated that machine, he developed back soreness which gradually
worsened. Then, in April 1989, he started working on the
electromatic. He operated that machine until the date of his
injury. On May 15, 1989, while lifting buggies onto the
electromatic, as was required by his job, he felt a "bee stingv
like pain down his right leg and experienced back pain. He was
unable to continue working. He parked the electromatic, went home,
and as of the date of trial, had never been able to return to work
due to his back injury.
Cottrellls injury occurred on a Friday. The following Monday,
he went to see his family physician, who referred him back to
Ronald D. Vincent, M.D., the neurosurgeon from Spokane, Washington,
who had performed the second operation on his back in 1981 or 1982.
Dr. Vincent diagnosed a reherniation of the intervertebral disc in
the same area that Cottrell's previous injury had occurred, and
performed two more surgical procedures to treat that injury.
After the second surgical procedure, Dr. Vincent referred
Cottrell to William J. Tacke, K.D., a specialist in physical
medicine in Great Falls, for further rehabilitation. Cottrell was
under Dr. Tackels care at the time of trial. Both Dr. Vincent and
Dr. Tacke testified by deposition at the trial.
Prior to trial, defendant provided copies of Cottrell's
medical records and diagnostic studies to Neil Meyer, M.D., a
neurosurgeon in Billings, for evaluation. Defendant then scheduled
Dr. Meyer's deposition, and during that deposition, asked him to
express a number of opinions about Cottrellls condition, based on
his review of those records. He was asked whether Cottrell should
be able to return to work, and what percentage of Cottrell's
current disability and symptoms resulted from his earlier injury,
as opposed to the injury which was the subject of this complaint.
Trial in this case commenced on May 26, 1992. Prior to trial,
on May 15, Cottrell moved in limine to exclude that part of Dr.
Meyer's testimony in which he expressed the opinion that 9 0 percent
of Cottrell's current problems resulted from his original injury,
and only ten percent were attributable to the incidents which were
the subject of his complaint. Cottrell's objection was that there
was insufficient foundation for Dr. Meyerss testimony and that his
opinion was sheer speculation and conjecture. That motion was
granted.
Shortly before trial, but after the deadline for identifying
expert witnesses, defendant identified Judy Freeman as a witness
that it intended to call at trial, and identified a letter written
by her to Cottrell's attorney as an exhibit that it would offer.
Judy Freeman is a registered nurse at Deaconess Hospital in Great
Falls, and administers the pain rehabilitation center. The
apparent purpose of her testimony was to state that she concurred
in Dr. Tacke's recommendation that Cottrell enroll in the
hospital's pain rehabilitation center and that he had not responded
to that recominendation. Cottrell moved to exclude her testimony
and the letter she had offered on the grounds that she was not
identified as an expert in a timely fashion, she was not qualified
to express the opinions included in her letter, and her references
to opinions by other health care providers were inadmissible
hearsay. Her testimony, and the letter she authored, were also
excluded by the District Court.
Additional facts, where relevant, will be discussed in
relation to the various issues raised by defendant on appeal.
I.
Did the District Court commit reversible error when it
excluded the opinion of Neil Meyer, M.D., regarding apportionment
of plaintiff's damage between the incident which was the subject of
this complaint and prior injuries?
We have held that issues concerning the admissibility of
evidence are within the discretion of the district court. Cooperv.
Rosstorz (l988), 232 Mont. 186, 190, 756 P.2d 1125, 1127. "The trial
court is vested with areat latitude in ruling on the admissibility
of expert testimony. (Emphasis added) . Cash v. 0th Elevator Co. ( 19 84 ) ,
210 Mont. 319, 332, 684 P.2d 1041, 1048. When discussing the
standard of review from a district court's ruling on the
qualifications of an expert to express an opinion, we have held
that:
We set forth the standard that the determination of
the qualification and competency of expert witnesses
rests largely within the trial judge, and without a
showing of an abuse of discretion, such determination
will not be disturbed.
Foremrrrlv.,Zfi~iriie (1984), 211 Mont. 441, 445, 689 P.2d 1210, 1212.
Our review of the District Court's exercise of its discretion
when it excluded the testimony of Dr. Neil Meyer must begin with
Rule 702, M.R.Evid., which sets forth the criteria for admission of
expert opinions. It provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
determine a witness
qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of
an opinion or otherwise.
Implicit in Rule 702 is the requirement that before a District
Court allows a witness designated as an expert to express an
opinion, some foundation must be laid to show that the expert has
special training or education and adequate knowledge on which to
base an opinion.
In this case, Cottrell did not question Dr. Meyer's
qualifications as a neurosurgeon. He challenged whether Dr. Meyer
had sufficient factual information which would enable him to
express an opinion apportioning Cottrell's current symptoms and
disability between two injuries which occurred nine years apart.
During Dr. Meyer's deposition, he acknowledged that the amount
of damage to a person's back can vary depending on the forces
applied to the back. He also agreed that the forces can depend on
the amount of weight being lifted and the posture in which the
lifting takes place. He testified that after surgical treatment of
a herniated disc, reherniation occurs in only five to ten percent
of patients, and the likelihood of reherniation depends in part on
the kind of stress placed on the area of original injury.
However, in spite of these admissions, Dr. Meyer testified
that he had never examined Cottrell, he had never met nor talked to
him, and had never read his deposition testimony. Neither had he
ever talked to Cottrell's treating physicians, nor read any of
their testimony. He was aware that Cottrell had returned to work
in 1982 following successful treatment of his original back injury,
but was unaware of either the type of work he had returned to, or
the extent of the physical exertion he was capable of performing
during his seven subsequent years of employment. Ne did not know
the frequency of lifting nos the type of lifting involved in
Cottrellfs job. In fact, he knew nothing about Cottrellfs job
description.
Most significantly, Dr. Meyer was totally unfamiliar with the
traumatic event which Cottrell alleged had caused his second
injury. He did not know what an electromatic was; he did not know
what a speed swing was (in fact, he testified that he wouldn't know
one if he saw one, unless it was in golf); he did not know what a
metal buggy was, nor how much one weighed; and he did not know the
position in which it had to be lifted by Cottrell at the time of
his second injury.
Based on Dr. Meyerls lack of information pertaining to
Cottrell, his activities, and the incident which he alleged caused
his injury, we conclude that the District Court did not abuse its
discretion when it held that there was an insufficient foundation
established for Dr. Meyer to express an opinion apportioning
Cottrellfs condition at the time of trial between the injury he
sustained in 1980 and the injury he sustained in 19S9. It was not
unreasonable for the District Court to conclude that, at a minimum,
before Dr. Meyer was qualified to express that opinion, he needed
to know the extent of Cottrellls recovery from his earlier injury,
and the extent of the trauma to his back which caused the
subsequent injury. This important foundation was absent.
Speculative testimony is inadmissible as evidence. Wil!imns v
.
ufuiliice (1963), 143 Mont. 11, 13, 386 P.2d 744, 745.
Therefore, we affirm the District Court's exclusion of Dr.
Meyer's testimony.
Did the District Court commit reversible error when it
excluded the testimony of Judy Freeman and her letter to
plaintiff's attorney?
At trial, defendant proposed to call Judy Freeman as a witness
and to offer a letter she had written to Cottrell's attorney on
April 28, 1992. Freeman was identified by defendant as a nurse who
was the operations manager of the Montana Deaconess Pain
Rehabilitation Center. On April 28, she wrote the following letter
to CottreLl's attorney:
Dear Mr. Thueson:
Since I have been unable to reach you by phone, I am
writing to send you the outline of what types of programs
we have available here at the Pain Rehab Center.
I have spoken with Dr. Tacke regarding Vern, and he
has recommended an inpatient program for Vern. I would
strongly agree, based on the information from Dr. Lloyd's
report also. Constant supervision is necessary when the
chronic pain problem has a very involved history. The
sooner a pain management approach is instituted, the
greater the chances of successful rehabilitation.
I would hope Vern's situation could accommodate the
inpatient program, to begin with at least, as that is
when the basis for education needs to be learned.
Without a strong base, the chronic pain patient finds it
easier to revert to old management habits following the
program.
Feel free to call and let me know where we are on
this. Thanks for your assistance.
Sincerely,
Judy Freeman, R.N., B.S.N.
Operations Manager,
Pain Rehabilitation Center
According to defendant's offer of proof, Nurse Freeman's
testimony, if permitted, would have been substantially as set forth
in her letter.
Although Nurse Freeman's letter is replete with opinions which
require expertise, and although she had never been identified by
defendant as an expert witness prior to trial, defendant contends
that her testimony and her correspondence should have been admitted
to show that Cottrell was notified of the availability of treatment
at the pain rehab center and failed to mitigate his damage by
taking advantage of that treatment.
However, even if her testimony and correspondence were
admissible for that limited purpose, they were unnecessary for that
purpose.
Dr. Tacke, Cottrell's attending physician who is referred to
in Nurse Freeman's letter, testified at trial by deposition. He
told the jury that he serves as medical director of the
rehabilitation program at the Montana Deaconess Medical Center, and
that during the course of treating Cottrell in October 1991, he
recommended that he participate in the pain rehabilitation program.
He also testified that Cottrell had not yet been able to
participate in the program due to various factors in his personal
life which prevented separation from his family, and that he, Dr.
Tacke, was satisfied that those personal problems would interfere
with successful participation in the rehabilitation program.
Cottrell, himself, acknowledged that the pain rehabilitation
program had been prescribed for him, but explained that, due to
illness in his family which precluded any long term separation, he
had been unable to participate in the program. Therefore, other
than Nurse Freeman's personal opinions which were inadmissible for
failure to disclose her as an expert prior to trial, her testimony
and the letter she authored would have contributed no relevant
information that the jury did not already have.
Defendant offered Nurse Freeman's testimony and her letter to
establish that pain rehabilitation was available to Cottrell and
that he had not mitigated his damages by taking advantage of that
treatment. However, through Cottrell's own testimony, and the
testimony of his treating physician, the jury had already been made
aware of the availability of the treatment, the fact that it had
been prescribed by Dr. Tacke, and the fact that plaintiff had not
yet taken advantage of it. Any further evidence to that effect
would have been cumulative. It is not error for the district court
to exclude cumulative evidence. Neither were any substantial
rights of defendant adversely affected by exclusion of such
evidence. Rule 103, M.R.Evid., provides in relevant part that
If[e]rror may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected .... 'I
We hold that the District Court did not err by excluding the
testimony of Judy Freeman and her letter dated April 28, 1992, for
the reason that portions of her letter constituted expert opinion
which had not been properly identified prior to trial, and that the
only remaining purposes for which her testimony or correspondence
were admissible were cumulative of information that had already
been presented to the jury. Therefore, neither were defendant's
substantial rights affected by exclusion of the evidence. The
District Court's exclusion of Nurse Freeman's testimony and her
correspondence is affirmed.
111.
Did the District Court err when it rejected two of defendant's
proposed jury instructions which pertained to contributory
negligence and limitation of defendant's liability for plaintiff's
pre-existing injuries?
Defendant offered its proposed instructions numbered 31
and 4 4 A which were not given by the District Court. Its proposed
Instruction No. 31 was as follows:
Where an employee knowingly exposes himself to
conditions of employment while aware of an illness or
disability which makes those conditions unsafe to him, or
where an employee has the possibility of securing relief
from unsafe conditions by informing his superiors of
them, or continues to work without doing so, he may be
found to be contributorily negligent.
Defendant's proposed Instruction No. 4 4 A provided as follows:
You are further instructed that the plaintiff may
not recover damages which are attributable to his
pre-existing injuries in 1980, and the subsequent
surgeries performed by Dr. Johnson and Dr. Vincent in
1981 and 1982 respectively. These injuries are not
compensable in this action and shall not be considered by
you in your deliberations.
en appeal, defendant contends that the District Court erred by
refusing to give its proposed Instruction No. 31 because
contributory negligence is a defense to Cottrell's claim pursuant
to 45 U.S.C. § 53 (1988), and its theory of contributory negligence
was based on the fact that Cottrell continued to work after his
back began to hurt, and therefore, increased the risk of his
ultimate injury. Defendant contends that it was entitled to such
an instruction pursuant to the decision of an intermediate
appellate court in Missouri in Conley v BN Railroad Co~npcirzy (MO. ~ p p .
.
1988), 765 S.W.2d 272, and pursuant to a Fifth Circuit Court
decision in Suvoie v Otto Candies, Inc. (5th Cir. l982), 692 F. 2d 363.
.
Defendant contends that the District Court erred by refusing
to give its proposed Instruction No. 44A so that the jury would not
confuse Cottrell's right to compensation in this case with damages
which resulted from his earlier injury.
We have held that when we review a district court's refusal to
give an offered jury instruction, the following rules apply:
It is not reversible error for a trial court to
refuse an offered instruction unless such refusal affects
the substantial rights of the party proposing the
instruction, thereby prejudicing him. Payne v. Sorenson
(1979), 183 Mont. 323, 599 P.2d 362, 36 St. Rep. 1610.
A party is not prejudiced by a refusal of his
proposed instructions where the subject matter of the
instruction is not applicable to the pleadings and facts,
or not supported by the evidence introduced at trial, pl
the subject matter is adeauatelv covered by other
instructions submitted to the iurv. Payze v Sorertsm, supra ;
.
Brwmv. NafihAmericanMfg. Co. (l978), 176 Mont. 98, 576 p.2d
711; ButZerMfg. Co.v.J&LImp~etnefztCo. (1976), 167 Mont. 519,
540 P.2d 962. [Emphasis added].
Associated Agency of Bozeman, Inc. 9. P u s h (1981), 191 Mont. 4 07, 413, 625
In this case, the substance of defendant's proposed
instructions numbered 31 and 44A was covered in other instructions
given by the District Court which were less argumentative.
In the District Court's Instruction No. 21, the jury was told
that:
If the railroad carries its burden in proving that
Vern Cottrell was contributorily negligent and that this
caused some or all of his injuries, his total damages
shall be reduced by an amount equal to the percentage of
negligence charged to him when compared to the amount of
negligence charged to the railroad.
The jury was fully instructed on the meaning of negligence,
and based on these instructions, the railroad capably argued that
Cottrell was contributorily negligent by continuing to work while
in pain without informing his supervisors.
Likewise, the jury was instructed that Cottrell could not
recover for injuries that occurred prior to the injury which was
the subject of his complaint. In the District Court's Instruction
No. 24, the jury was told that:
If you find that plaintiff was suffering from a
pre-existing condition at the time he incurred injuries
in the accident or accidents in question, he is not
entitled to recover damages for the pre-existing
condition.
The District Court's Instruction No. 24 was simply another way
of saying the same thing proposed by defendant in its proposed
Instruction No. 44A.
Based on this instruction, defendant's attorneys did
effectively argue, without objection, that Cottrell could not
recover damages for injuries attributable to his pre-existing
injuries or prior surgeries.
We conclude that defendant's proposed instructions numbered 31
and 44A were adequately covered by other instructions submitted to
the jury, and therefore, defendant's substantial rights were not
affected by the District Court's refusal of defendant's proposed
instructions.
IV.
Did the District Court err when by failing to rule on
defendant's motion to amend the judgment, it declined to offset
from the judgment monies paid to plaintiff by defendant and from
other sources prior to trial?
The jury returned its verdict on June 1, 1992, finding that
defendant was negligent, its negligence caused Cottrell's injuries,
Cottrell was not negligent, and his damages were in the amount of
$1,362,236. The jury verdict was unanimous.
During the trial, outside the presence of the jury, the
attorneys for defendant asked if it could be stipulated that
evidence of the amount to which it was entitled as an offset
against any judgment collected by Cottrell for advance payments
made by defendant, and for medical bills, could be proven at a
16
post-trial hearing. The District Court agreed that it could, and
Cottrell's attorney stated that he had no objection. However, on
a subsequent occasion prior to the jury verdict, Cottrell's
attorney pointed out that there was no evidence of medical expense
and Cottrell was making no claim for past or future medical
expenses, and therefore, it would be inappropriate to offset those
amounts against any judgment recovered. Tnere was no objection to
that statement by defendant's attorneys.
On June 12, 1992, defendant filed its motion to alter or amend
the District Court's judgment, and in the alternative, for a new
trial. The bases asserted for a new trial were those issues
previously discussed in this opinion. However, defendant also
sought to have the judgment amended to provide that payments
advanced by defendant to Cottrell, payments advanced by the
Railroad Retirement Board, supplemental sickness benefits received
by Cottrell, and medical expenses paid on Cottrellrsbehalf by his
insurer be offset from the amount of the judgment entered on his
behalf.
In opposition to defendant's motion to amend the judgment,
Cottrellrs attorney pointed out that his stipulation during trial
applied to only those offsets applied by law and which were part of
the actual damages awarded. He contended that defendant was not
entitled to an offset for medical expenses paid by Cottrellrs
insurer, because no medical expenses were sought nor recovered. He
also contended that defendant was not entitled to an offset for
amounts previously advanced for wage loss because the general
17
verdict form did not distinguish the nature of damages awarded to
Cottrell. Cottrell's attorneys pointed out that he submitted a
verdict form which would have itemized the nature of damages
awarded by the jury, but that form was objected to by defendant,
and therefore, it was impossible for the District Court to
determine the exact nature of damages awarded by the jury.
The District Court did not rule on defendant's post-trial
motion. It was, therefore, deemed denied, and this appeal was
taken.
On appeal, defendant cites written agreements by Cottrell to
the effect that money advanced would be deducted from any ultimate
settlement or judgment paid to him. It cites the stipulation
entered into during the time of trial, and it relies on our prior
decision in Kalanick v Burlington Nonlzem
. (1990) , 242 Mont. 45, 788 P. 2d
901, where we held that the railroad was entitled to have the
judgment entered against it offset by the amount which it had
previously advanced to the injured employee in that case. We also
held in K a h i c k that the railroad was entitled to an offset for
sickness payments made to its employee pursuant to a collective
bargaining agreement adopted by the employee's union.
In response to defendant's argument on appeal, Cottrell
concedes that defendant has a right to an offset for sickness
benefits previously advanced in the amount of $6492.27, but denies
that it has a right to any offset for wage benefits advanced
because the general nature of the verdict form makes it impossible
to determine what, if any, amounts were awarded by the jury as
damages for wage loss.
We note that, while Cottrell is correct that due to
defendant's objection, an exact apportionment of the jury's verdict
between general damages and wage loss cannot be made, the jury's
verdict was for an amount in excess of $1.3 million. Cottrell
claimed wage loss in the amount of $862,230, and general damages of
from $700,000 to $1,000,000 for pain and suffering. By logical
deduction, at least $300,000 of Cottrellls recovery had to be
compensation for wage loss.
Therefore, we conclude that the District Court erred by
refusing to offset the judgment entered against defendant by those
amounts previously advanced for wages and supplemental sickness
benefits, other than those benefits paid for medical expenses. We
conclude that since compensation for medical expenses was not
claimed by Cottrell, defendant is not entitled to an offset against
the judgment for those amounts. We remand to the District Court
for a determination of the exact amount of offsets to which
defendant is entitled. We otherwise affirm the jury's verdict and
the judgment of the District Court entered pursuant to that
verdict,
We concur:
November 2, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
J. Michael Young
Jardine, Stephenson, Blewett & Weaver
P. 0 . Box 2269
Great Falls, MT 59403
Russell D. Yerger
Kroschel & Yerger
2825 Third Ave. N., Ste 607
Billings, MtT 59101
Erik Thueson
Thueson Law Office
P. 0. Box 535
Helena, MT 59624 . '
Dennis P. Comer
Attorney at Law
P. 0. Box 3028
Great Falls, MT 59403-3028
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA