McLaughlin v. BNSF Ry. Co.

Decision Date07 June 2012
Docket NumberNo. 11CA0751.,11CA0751.
PartiesThomas F. McLAUGHLIN, Plaintiff–Appellee, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant–Appellant.
CourtColorado Court of Appeals


Haddon, Morgan and Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Denver, Colorado, for PlaintiffAppellee.

Hall & Evans, L.L.C., Frederick T. Martinez, Alan Epstein, Jessie Pellant, Denver, Colorado, for DefendantAppellant.

Opinion by Judge J. JONES.

¶ 1 Defendant, BNSF Railway Company, appeals the judgment entered and damages awarded after a jury trial in favor of its employee, plaintiff Thomas F. McLaughlin, on his statutory strict liability and negligence claims.

¶ 2 Among the issues the railroad raises are two that present matters of first impression in Colorado, both relating to damages.

¶ 3 First, did the district court err in giving the jury an “eggshell skull” or “thin skull” instruction because it also gave an instruction on apportioning damages for aggravation of a pre-existing condition? We conclude that giving both instructions may be appropriate, depending on the state of the evidence. We further conclude that, based on the evidence presented at trial in this case, the court did not err in giving an eggshell instruction, but did err in giving the aggravation instruction. Doing so, however, was harmless error because that instruction worked to the railroad's benefit.

¶ 4 Second, did the district court err in ruling that Mr. McLaughlin could seek recovery for lost wages even though he receives disability benefits under the Railroad Retirement Act (RRA) because of the injuries he sustained in the incident giving rise to his claims? We conclude that the district court did not err because those benefits are from a collateral source.

¶ 5 We further reject the railroad's other contentions of error, and therefore affirm.

I. Background

¶ 6 Mr. McLaughlin was injured when a locomotive handbrake allegedly malfunctioned when he attempted to release it. He sued the railroad for negligence under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51–60, and for strict liability under both the Locomotive Inspection Act, 49 U.S.C. §§ 20701–20703, and the Safety Appliance Act, 49 U.S.C. §§ 20301–20306.

¶ 7 At trial, the railroad asserted, as relevant here, that Mr. McLaughlin's claimed injuries had not been caused by the handbrake incident. Alternatively, the railroad asserted that the jury should apportion damages because Mr. McLaughlin had preexisting conditions that the incident had merely aggravated. A jury found in Mr. McLaughlin's favor on all claims, concluding that the railroad was entirely at fault, and awarded him $1,830,000 in damages.

II. Discussion

¶ 8 On appeal, the railroad contends that the district court erred by (1) admitting a transcript of the railroad's claims agent's post-incident interview of Mr. McLaughlin and denying the railroad's motion for new trial based on this admission; (2) improperly instructing the jury on the eggshell and aggravation doctrines; and (3) denying its motion in limine to preclude Mr. McLaughlin from presenting evidence of lost wages because of his receipt of RRA disability benefits or to reduce the damages award by the amount of those benefits. We address each contention in turn.

A. Admission of Interview Transcript

¶ 9 We reject the railroad's contentions that the district court abused its discretion by (1) admitting the post-incident interview transcript (prepared by the railroad's claims investigator) because it was hearsay; and (2) denying the railroad's motion for a new trial after its counsel discovered that someone had made a handwritten notation on the copy of the transcript that was admitted.1

1. Hearsay

¶ 10 We review the district court's decision to admit evidence for an abuse of discretion. Bly v. Story, 241 P.3d 529, 535 (Colo.2010); D.R. Horton, Inc.-Denver v. Bischof & Coffman Constr., LLC, 217 P.3d 1262, 1267 (Colo.App.2009). A court abuses its discretion where its decision is manifestly arbitrary, unreasonable, or unfair. Saturn Sys., Inc. v. Militare, 252 P.3d 516, 523 (Colo.App.2011); D.R. Horton, 217 P.3d at 1267.

¶ 11 Hearsay is a statement other than one made by the testifying witness that is offered to prove the truth of the matter asserted. CRE 801(c); Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 66 (Colo.App.2004). Hearsay is generally inadmissible, subject to certain exceptions. CRE 802; Vista Resorts, 117 P.3d at 66.

¶ 12 The railroad's counsel cross-examined Mr. McLaughlin in an attempt to show that he had fabricated his account of the handbrake incident or exaggerated his injuries. For example, counsel pointed out that Mr. McLaughlin had continued to work for several days after the incident and had modified his handwritten statement about the incident after he had consulted with medical professionals. Counsel then introduced, as relevant here, one page of the post-incident interview transcript to impeach Mr. McLaughlin's testimony that he had encountered unusual tension or pressure in operating the handbrake. Mr. McLaughlin admitted that he had not described such tension or pressure to the claims agent because he “was never asked.”

¶ 13 On redirect examination, Mr. McLaughlin's counsel sought to introduce the entire transcript. The railroad's counsel objected, arguing that [i]t's hearsay ... [a]nd when I used it, [Mr. McLaughlin] agreed with the statement, so it's not even for impeachment purposes.” The court overruled the objection without explanation.

¶ 14 We perceive no abuse of discretion. As noted, though the railroad's counsel challenged Mr. McLaughlin's testimony about the handbrake tension or pressure, counsel also more generally challenged his description of the incident and his injuries. Consequently, the entire transcript of Mr. McLaughlin's interview about the incident was admissible as a prior consistent statement to rebut the general charge of fabrication. See People v. Eppens, 979 P.2d 14, 22–23 (Colo.1999) (the witness's prior consistent statement was admissible to rehabilitate her where defense counsel had attempted to discredit her testimony in its entirety); People v. Elie, 148 P.3d 359, 363 (Colo.App.2006) (where the defendant's impeachment “was not limited to specific facts but was instead a general attack on [the witness's] credibility,” the district court properly admitted an entire videotape so that the jury could compare and contrast the differences among all of the witness's statements); see alsoCRE 801(d)(1)(B) (prior consistent statement is not hearsay and is admissible if the witness testifies at trial subject to cross-examination and the statement is offered to rebut a charge of recent fabrication or improper influence or motive).

¶ 15 Alternatively, even if we assume that the transcript was not admissible as including prior consistent statements, it was admissible to provide context for Mr. McLaughlin's testimony on cross-examination that he had not reported experiencing tension or pressure in operating the handbrake. It was not offered for the truth of the matter asserted, and therefore was not inadmissible hearsay. See People v. Hagos, 250 P.3d 596, 623 (Colo.App.2009) (where a party offers a statement for the limited purpose of putting a witness's responses in context, the statement is not offered for the truth of the matter asserted, and therefore is not hearsay); Virgil v. Wachsmann, 489 P.2d 344, 345 (Colo.App.1971) (not published pursuant to C.A.R. 35(f)) (witness testified on redirect about his entire interrogation of the parties to clarify a point elucidated on cross-examination); cf.C.R.C.P. 32(a)(4) (“If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.”); People v. Davis, 218 P.3d 718, 731 (Colo.App.2008) ( “Under the rule of completeness, when one party introduces part of a written or recorded statement, the opposing party can introduce other parts of that statement.”).

¶ 16 Therefore, we conclude that the district court did not abuse its discretion by admitting the entire interview transcript.

2. Notation

¶ 17 The district court has considerable discretion in ruling on a motion for a new trial, and we will not disturb its decision absent a clear showing of an abuse of discretion. Vaccaro v. Am. Family Ins. Grp., 2012 COA 9, ¶ 40, 275 P.3d 750; Zolman v. Pinnacol Assurance, 261 P.3d 490, 502 (Colo.App.2011). The court should not grant a motion for a new trial where the error “did not prejudice or harm the party seeking a new trial, or where the trial resulted in substantial justice.” Citicorp Acceptance Co., Inc. v. Sittner, 772 P.2d 655, 657 (Colo.App.1989); accord Cissell Mfg. Co. v. Park, 36 P.3d 85, 91 (Colo.App.2001); Garcia v. Estate of Wilkinson, 800 P.2d 1380, 1383 (Colo.App.1990).

¶ 18 After trial, the railroad moved for a new trial when its counsel discovered that someone, perhaps Mr. McLaughlin's counsel, had made the following notation on the admitted transcript: “Caveat = brake hurt ?.” The district court denied the motion, finding:

[N]o prejudice to [the railroad] has been shown or can reasonably be inferred. The notation, by a person not identified on the document, merely states what was shown by overwhelming evidence throughout the trial to the point that it was essentially unrefuted except by argument of defense counsel: that the plaintiff was hurt by the brake. An additional stray handwritten note in the margin of a document to the same effect as copious other evidence did not prejudice [the railroad]. [The railroad]'s suggestion that the jury would have speculated that the note was an admission by [the railroad] is itself an unreasonable speculation. The reasonable inference from the note is merely that someone reading the transcript jotted in the margin what...

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