Cottrell v. Burlington Northern R. Co.

• Decision Date: 02 November 1993
• Docket Number: No. 92-507,92-507
• Citation: 863 P.2d 381,261 Mont. 296
• Parties: Lisa COTTRELL, as personal representative of the estate of Vern Cottrell, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 381

863 P.2d 381

261 Mont. 296

Lisa COTTRELL, as personal representative of the estate of Vern Cottrell, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation Defendant and Appellant.

No. 92-507.

Supreme Court of Montana.

Submitted on Briefs July 1, 1993.

Decided Nov. 2, 1993.

Russell D. Yerger, Kroschel & Yerger, Billings, J. Michael Young, Jardine, Stephenson, Blewett & Weaver, Great Falls, for defendant and appellant.

Erik B. Thueson and John A. Kutzman, Thueson Law Offices, Helena, Dennis P. Conner, Great Falls, for plaintiff and respondent.

TRIEWEILER, Justice.

Plaintiff Vern Cottrell filed this action 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. §§ 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 swing" 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 "electromatic," he injured his back while lifting "buggies" 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 Cottrell's 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 Cottrell's 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 sting" 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.

Cottrell's 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, M.D., a specialist in physical medicine in Great Falls, for further rehabilitation. Cottrell was under Dr. Tacke's 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 Cottrell's 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 90 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. Meyer's 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 recommendation. 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. Cooper v. Rosston (1988), 232 Mont. 186, 190, 756 P.2d 1125, 1127. "The trial court is vested with great latitude in ruling on the admissibility of expert testimony." (Emphasis added). Cash v. Otis Elevator Co. (1984), 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.

Foreman v. Minnie (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 evidence or to determine a fact in issue, 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...