Donald R. Filler v. Soo Line Railroad Company d/b/a Canadian Pacific ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-1915
Donald R. Filler,
Respondent,
vs.
Soo Line Railroad Company
d/b/a Canadian Pacific,
Appellant.
Filed July 14, 2014
Affirmed
Hooten, Judge
Hennepin County District Court
File No. 27-CV-12-4768
Cortney S. LeNeave, Richard L. Carlson, Hunegs, LeNeave & Kvas, P.A., Wayzata,
Minnesota (for respondent)
Diane P. Gerth, Alfonse J. Cocchiarella, Sweeney & Masterson, P.A., St. Paul, Minnesota
(for appellant)
Considered and decided by Hooten, Presiding Judge; Kirk, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant challenges the district court’s denial of its motion for a new trial,
arguing that the district court abused its discretion by giving an eggshell-plaintiff
instruction to the jury, by failing to give an aggravation instruction, and by admitting
hearsay evidence that did not fall within a recognized exception. We affirm.
FACTS
A severe snowstorm struck North Dakota in late October 2010. On October 27,
2010, respondent Donald Filler worked his regular shift at appellant Canadian Pacific’s
rail yard in Harvey, North Dakota. Filler recalled the conditions that day as windy and
rainy, and that the rain turned to ice with temperatures falling below freezing. Overnight,
more than eight inches of snow fell. Filler reported to work on October 28, observing
that the ground conditions were “terrible” and that the yard had not been salted or sanded.
Filler’s co-worker, Steve Lesmeister, similarly described the conditions in the yard: “We
had just gotten 8, 10 inches, 12 inches of snow, and [it was] icy, muddy.” Lesmeister
also noted that the yard had not been salted or sanded. Both Filler and Lesmeister
recalled that Canadian Pacific provided salt and sand in the yard at one time, but had
ceased doing so for several years.
Filler and Lesmeister drove a company truck to an area in the yard where they
were assigned to move two train engines. As Filler exited the truck, he placed his left
foot on the ground, slipped, hit the doorjamb with his neck and shoulder, and landed on
the ground. Filler felt a shooting pain through his arm, elbow, and shoulder. Because of
the pain resulting from his accident, Filler sought medical treatment.
Filler later sued Canadian Pacific under the Federal Employers’ Liability Act
(FELA), 45 U.S.C §§ 51–60 (2010), alleging that Canadian Pacific failed to provide a
reasonably safe workplace. At a jury trial, Lesmeister testified that he did not recall
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reporting that the yard was slippery and “icy” at the time of Filler’s accident, but
remembered that “it was rough conditions for walking because it was freezing and slushy
and half hard.” Filler’s counsel offered Lesmeister’s transcribed statement, which had
been taken six days after the accident, into evidence. Canadian Pacific objected. The
district court ruled that the transcribed statement could be utilized to refresh Lesmeister’s
recollection. Filler’s counsel told Lesmeister to look at his statement and then, after his
review, again asked Lesmeister to describe the condition of the yard. Canadian Pacific
objected again, but the district court did not rule on the objection. Filler’s counsel
repeated his question. Lesmeister responded, “Extremely icy.” Filler’s counsel later
offered the transcribed statement, which had been utilized repeatedly during Lesmeister’s
testimony to refresh his recollection, into evidence. Over Canadian Pacific’s objection,
the district court admitted the transcribed statement.
Dr. William Canham, an orthopedic surgeon who treated Filler for his injuries,
testified that he diagnosed Filler’s elbow condition as a radial head fracture. And, Dr.
Canham operated on Filler’s shoulder by taking out the acromioclavicular joint, which, as
he explained it, “gives a fair bit of pain relief for people.” While Dr. Canham
acknowledged that Filler “had some preexisting arthritis of his shoulder” and elbow, he
opined that his shoulder surgery was caused in “significant part” by the accident, and that
Filler would “probably come to shoulder replacement in five, six years.” When asked if
Filler had symptoms of arthritis before his accident, Dr. Canham, noting that Filler had
arthritis in his hip, feet, and cervical and lumbar spine, responded that he “suspect[ed]
[Filler] hurts a lot.” But Dr. Canham admitted that he was not aware of any limitations
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on Filler’s activities before the accident due to arthritis. He also reviewed a 2007 medical
examination, noted that Filler’s elbow joints had full range of motion and no obvious
deformities, and determined that Filler “was okay then.”
Dr. Canham also examined a radiologist’s note. The radiologist opined that
Filler’s shoulder injury was caused by the accident. Dr. Canham testified that he agrees
with the radiologist, but probably not as strongly: “To me, it’s more 50-50 [that the injury
was caused by the fall] . . . . I’m not sure this guy wasn’t arthritic to start with.” In Dr.
Canham’s opinion, Filler is no longer physically able to work for the railroad.
Dr. Gary Wyard, an orthopedic surgeon who examined Filler at the request of
Canadian Pacific, testified that he reviewed Filler’s medical records and after receiving
an oral history from Filler, physically examined him. During the oral history, Filler
denied having prior problems or difficulties with his elbow or shoulder, but admitted to
having back problems. Dr. Wyard testified that Filler’s medical records showed “pre-
existing, long standing” arthritis in his elbow and “a long-standing history of arthritis in
his right shoulder.” Dr. Wyard opined that the surgery was only necessary or reasonable
because “he has arthritis in the shoulder. He had pain in the shoulder, . . . but everything
that [Dr. Canham] did was for pre-existing condition, nothing related to this accident.”
Dr. Wyard testified that the Filler’s accident only caused a bruised right elbow and
a minor right shoulder sprain or strain. He added, “We know that [Filler] complains of
pain around his shoulder, that’s all we know. We don’t know what the cause of it is.
There certainly isn’t any medical evidence that he should have any pain or discomfort in
his shoulder as a result of this accident.” In Dr. Wyard’s opinion, “The most likely
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explanation of the pain in his shoulder is the arthritis that he had which was pre-existing.”
Dr. Wyard conceded, however, that there was no evidence that Filler complained of pain
in or had concerns about his elbow or shoulder before the accident.
At trial, Filler requested that the district court present an eggshell-plaintiff jury
instruction. Canadian Pacific objected, and requested an aggravation instruction instead.
The district court granted Filler’s request for an eggshell-plaintiff instruction, denied
Canadian Pacific’s request for an aggravation instruction, and provided the jury with
several pattern FELA jury instructions, including instructions on causation and damages.
In closing arguments, Canadian Pacific argued at length that it was not negligent, that
Filler’s arthritis was preexisting and not asymptomatic, and that Filler’s current and
future pain is caused by his preexisting arthritis, rather than the accident.
The jury returned a verdict finding the railroad 75% negligent and Filler 25%
contributorily negligent. Reflecting the percentages of fault, the district court awarded
Filler $579,375. Canadian Pacific moved for a new trial, for judgment as a matter of law,
and for remittitur. The district court denied the motion.
Canadian Pacific appeals.
DECISION
This court reviews a district court’s decision to grant or deny a new trial under an
abuse of discretion standard. Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 892
(Minn. 2010). “The court at every stage of the proceeding must disregard any error or
defect in the proceeding which does not affect the substantial rights of the parties.”
Minn. R. Civ. P. 61.
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I.
“The district court has broad discretion in determining jury instructions and we
will not reverse in the absence of abuse of discretion.” Hilligoss v. Cargill, Inc., 649
N.W.2d 142, 147 (Minn. 2002). “As a general matter, FELA cases adjudicated in state
courts are subject to state procedural rules, but the substantive law governing them is
federal.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S. Ct. 1347, 1348
(1985). “[T]he propriety of jury instructions concerning the measure of damages in an
FELA action is an issue of substance determined by federal law.” Id. (quotation marks
omitted). But “the Act is founded on common law concepts subject to explicit statutory
qualifications.” Stevens v. Bangor & Aroostook R.R. Co., 97 F.3d 594, 602 (1st Cir.
1996). Therefore, it is appropriate to consider common-law developments, so long as
they do not conflict with statutory requirements. Id.
The district court provided the jury the following eggshell-plaintiff instruction:
In determining the amount of Plaintiff’s actual
damages, you cannot reduce the amount of or refuse to award
any such damages because of any physical frailties of
Plaintiff that may have made him more susceptible to injury,
disability or impairment than an average or normal person.
That Plaintiff may have had some preexisting
condition does not shield Defendant from liability. In an
action of this sort, a negligent railroad must bear the risk that
its liability will be increased by reason of the actual physical
condition of the individual toward whom its act is negligent.
In other words, a negligent party takes the person he injures
as he finds him. A negligent party is not exonerated from
liability, nor is its liability lessened, if, by reason of some
preexisting condition, the victim is more susceptible to injury.
One who has received a personal injury as a result of the
negligence of another can recover all damages traceable to the
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primary negligence, including damages attributable to
aggravation of a preexisting condition. Stated another way,
when a defendant’s negligence causes an injury to the
plaintiff, the defendant is liable for the resulting damage to
him, even though the plaintiff had a pre-existing condition
that made him more susceptible to injury or made the
consequences to him more severe.
Canadian Pacific requested the district court to provide the following aggravation
instruction instead, but was denied:
There is evidence that plaintiff had a pre-existing
disability or medical condition. Defendant is liable only for
any damages that you find to be directly caused by the
accident.
If you find there was an aggravation of a pre-existing
condition, you should determine, if you can, what portion of
plaintiff’s condition resulted from the aggravation and make
allowances in your verdict only for such aggravation.
However, if you cannot determine, or if it cannot be said that
the condition would have existed apart from the injury, you
should consider and make allowances in your verdict for the
entire condition.
Canadian Pacific contends that the district court abused its discretion by providing
the eggshell-plaintiff instruction and, instead, the district court should have provided the
aggravation instruction. In its order denying Canadian Pacific’s motion for a new trial,
the district court explained, “The eggshell plaintiff instruction was more appropriate for
the facts of this case than the aggravation instruction.”
The eggshell-plaintiff or thin-skull rule is often described as the concept that the
“defendant takes the victim as found”:
When an actor’s tortious conduct causes harm to a person
that, because of a preexisting physical or mental condition or
other characteristics of the person, is of a greater magnitude
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or different type than might reasonably be expected, the actor
is nevertheless subject to liability for all such harm to the
person.
Restatement (Third) of Torts § 31 & cmt. a (2010). The rule “does not make the
defendant liable for the plaintiff’s preexisting condition itself.” Dan B. Dobbs, The Law
of Torts § 188 (2000). “The thin skull rule merely holds that the defendant is liable for
the unforeseeable aggravation of that preexisting condition . . . .” Id.
The aggravation instruction is given when a preexisting, symptomatic injury or
condition was exacerbated by the accident. Waits v. United Fire & Cas. Co., 572 N.W.2d
565, 578 (Iowa 1997). The defendant is liable for only the “additional injury over and
above the consequences which normally would have followed from the preexisting
condition absent defendant’s negligence.” Schore v. Mueller, 290 Minn. 186, 189, 186
N.W.2d 699, 701 (1971).
The eggshell-plaintiff and the aggravation theories are not inconsistent with each
other or mutually exclusive. See Rowe v. Munye, 702 N.W.2d 729, 741 (Minn. 2005)
(“We recognize that it is conceivable that a person could have both an injury that
involves aggravation of a preexisting injury and an injury that was more severe because
the plaintiff was more susceptible to injury.”); Waits, 572 N.W.2d at 578 (“[W]e can
envision situations where the principles embodied in both instructions might apply.”).
Still, they are distinct concepts:
Whether the eggshell plaintiff rule applies or the aggravation
rule applies depends in the first instance on when the pain or
disability for which compensation is sought arose. [Under the
aggravation rule,] [w]here the prior condition resulted in pain
or disability before the second injury, the tortfeasor is liable
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only for the additional pain and disability arising after the
second injury. With respect to any pain or disability arising
after the second injury, [under the eggshell-plaintiff rule,] the
tortfeasor is fully responsible, even though that pain and
disability is greater than the injured person would have
suffered in the absence of the prior condition.
Waits, 572 N.W.2d at 577–78. Waits states that both instructions may be submitted to the
jury when there is a factual basis for the jury to believe that “the prior condition has
caused some disability or pain that is aggravated by the second injury and at the same
time the additional harm resulting from the second injury is greater than it would have
been in the absence of the prior injury.” Id. at 576–78.
Eggshell-plaintiff instruction
The district court did not abuse its discretion by giving an eggshell-plaintiff
instruction. Several cases recognize that FELA incorporates the eggshell-plaintiff rule
and that it may apply in appropriate cases. See, e.g., Stevens, 97 F.3d at 602 n.8 (“Indeed,
FELA and other federal statutes incorporate the eggshell skull rule to prevent defendant
from avoiding liability in certain cases.” (quotation omitted)); Pierce v. S. Pac. Transp.
Co., 823 F.2d 1366, 1372 n.2 (9th Cir. 1987) (“Clearly the eggshell plaintiff rule applies
in cases in which the cause and effect of an injury are physical.”); Lancaster v. Norfolk &
W. Ry. Co., 73 F.2d 807, 822–23 (7th Cir. 1985) (examining eggshell-plaintiff rule); see
also Sauer v. Burlington N. R.R. Co., 106 F.3d 1490, 1495 (10th Cir. 1996) (“It is true
that a defendant cannot escape liability because a preexisting condition made plaintiff
more susceptible to injury.”). In Pierce, for example, the Ninth Circuit rejected the
railroad’s argument that it was not liable as a matter of law because the eggshell-plaintiff
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rule did not apply in a FELA case involving an underlying injury of emotional distress.
823 F.2d at 1372 n.2. The Ninth Circuit reasoned, “The Supreme Court has made it clear
that FELA jurisprudence gleans guidance from common law developments. The
eggshell-plaintiff rule simply means that a tortfeasor takes his victim as he finds him.”
Id. (citation omitted).
The instruction was appropriately given because there is sufficient evidence to
form a factual basis for the instruction. See Freeman v. Busch, 349 F.3d 582, 590 (8th
Cir. 2003) (“[T]he ‘egg-shell plaintiff’ instruction should only be submitted if there is
sufficient evidence to form a factual basis for the instruction.”). Both Drs. Canham and
Wyard acknowledged that Filler had arthritis in his elbow and shoulder prior to his
accident. But, as both doctors noted, there is no evidence that Filler complained about
symptoms of arthritis in his elbow and shoulder or that any pre-existing arthritis in his
elbow and shoulder limited his work or recreational activities prior to the accident.
Aggravation instruction
The district court did not abuse its discretion by denying Canadian Pacific’s
request to provide an aggravation instruction. “It is well established that an instruction
should not be given if it lacks evidentiary support.” United States v. Amerson, 938 F.2d
116, 119 (8th Cir. 1991), abrogated on other grounds by United States v. Martinez-
Salazar, 582 U.S. 304, 120 S. Ct. 774 (2000). There is no evidence that Filler
complained of pain or exhibited symptoms in his elbow or shoulder before the accident,
that the pre-existing arthritis was disabling, or that any pre-existing symptoms and
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physical disability were aggravated by the accident. So this case is not one in which both
instructions should be given.
Fair and correct statement of applicable law
Canadian Pacific contends that the eggshell-plaintiff instruction does not reflect
prevailing law, arguing that it “allow[s] the jury to conclude that they could award
damages for more than those caused by any railroad negligence.” We disagree.
“[A] jury instruction may not be attacked successfully by lifting a single sentence
or word from its context. Where instructions overall fairly and correctly state the
applicable law, appellant is not entitled to a new trial.” Hilligoss, 649 N.W.2d at 147
(quotation omitted). But “[a]n instruction that is so misleading that it renders incorrect
the instruction as a whole will be reversible error.” Id.
FELA damages may be apportioned among an employer’s negligence and other
non-work causes. See Sauer, 106 F.3d at 1493–95 (determining that the district court did
not err by providing an apportionment instruction); Stevens, 97 F.3d at 601–03
(examining who has the burden of proving apportionment); Lancaster, 773 F.2d at 822–
23 (examining whether district court erred by failing to provide an apportionment
instruction). Similarly, eggshell-plaintiff damages “must be reduced to reflect the
likelihood that he would have been injured anyway, from a nonliable cause, even if the
defendant had not injured him.” Lancaster, 773 F.2d at 822.
The instruction provided to the jury does not explicitly inform that the jury must
reduce Filler’s damages based on inevitable injuries. But the instruction states that the
jury must award “all damages traceable to the primary negligence, including damages
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attributable to aggravation of a preexisting condition.” This informs the jury that
damages should be awarded based on the negligence of the railroad, not the pain and
suffering Filler would have had due to his arthritis. And the district court provided FELA
pattern instructions on causation and damages, which require the jury to award damages
incurred “as a direct result of the occurrence mentioned in the evidence” and that there
may be multiple causes of injury or damage. Overall, the instructions fairly and correctly
state the applicable law.
Prejudice
Even if the district court erred in providing the jury instruction, Canadian Pacific
is not entitled to a new trial because it fails to establish prejudice. To constitute
reversible error, a jury instruction must have had the potential to mislead the jury to the
prejudice of the defendant. Zizow v. Wal-Mart Stores, Inc., 568 N.W.2d 549, 551 (Minn.
App. 1997).
In Lancaster, the Seventh Circuit examined whether the district court erred by
refusing to instruct the jury to reduce plaintiff’s “damages by the probability that he
would have become schizophrenic even if the railroad’s supervisors had not
misbehaved.” 773 F.2d at 822. While “[i]t is desirable in such cases to direct the jury’s
attention to the issue by a specific instruction,” the Seventh Circuit concluded that the
failure to do so was not reversible error, reasoning:
The judge’s instruction on damages was sufficiently general
to allow (though it did not compel, as it should have done) the
jury to adjust damages downward for the probability that
something other than tortious misconduct would have
triggered Lancaster’s latent schizophrenia; for he told the jury
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simply that they should award Lancaster the damages
proximately caused by the alleged wrongdoing if they found
the railroad liable. In its closing argument the railroad
reminded the jurors of the psychologist’s testimony that, had
it not been for the alleged wrongdoing, something else in
Lancaster’s life would have set him off. Lancaster’s counsel
argued the contrary evidence of his expert witnesses but did
not suggest that it would be improper for the jury to apportion
damages according to the probability that Lancaster would
have gone through the rest of his life without incident if he
had not been victimized by the railroad. The jury was thus at
least apprised of the issue.
773 F.2d at 823.
Here, the instruction includes the general eggshell-plaintiff theory. The instruction
also informs the jury that it should award damages traceable to the negligence. Nothing
in the instruction states that Filler may recover damages for inevitable injuries that may
have arisen from his preexisting arthritis and are not traceable to the negligence. And the
district court provided the jury with the FELA pattern instructions on causation and
damages. Moreover, Canadian Pacific presented its theory in closing arguments. And
Filler never argued that the jury was required to award damages for future pain and
suffering unrelated to the accident. In fact, Filler’s counsel told the jury that it had to
weigh the testimony of Dr. Canham and Dr. Wyard regarding Filler’s pre-existing
arthritis as “something . . .to consider” in assessing damages. In sum, any error by the
district court in providing the given instruction was not prejudicial.
II.
Canadian Pacific contends that the district court abused its discretion by admitting
Lesmeister’s transcribed statement into evidence, arguing that it is hearsay and that no
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hearsay exception applies. We need not determine whether the district court abused its
discretion by admitting the statement because it did not prejudice Canadian Pacific. See
Midway Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975)
(stating that to prevail on appeal, the appellant must show both error and prejudice
resulting from it); Melius v. Melius, 765 N.W.2d 411, 418 (Minn. App. 2009) (stating that
an evidentiary error is not prejudicial unless it might reasonably have influenced the trier
of fact and changed the result of the trial).
Evidence other than the transcribed statement supports the jury’s decision that
Canadian Pacific was negligent. See In re Welfare of Child of J.K.T., 814 N.W.2d 76, 93
(Minn. App. 2012) (stating that “evidentiary error is not prejudicial if the record contains
other evidence that is sufficient to support the findings”); GN Danavox, Inc. v. Starkey
Labs., Inc., 476 N.W.2d 172, 176 (Minn. App. 1991) (concluding that cumulative
evidence was not prejudicial). The transcribed statement was utilized extensively to
refresh Lesmeister’s testimony about the accident and ground conditions. Lesmeister
never questioned the validity of his statement and testified repeatedly based upon his
refreshed recollection after reviewing the statement. Both Lesmeister and Filler testified
regarding the “extremely icy” condition of the yard and the failure of Canadian Pacific to
salt or sand the yard during the evening of Filler’s accident. And Canadian Pacific does
not challenge the transcribed statement’s accuracy or reliability. No evidence submitted
at trial indicates that Lesmeister’s transcribed statement contained errors or that
Lesmeister fabricated his report. In sum, there is no reasonable possibility that the jury
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would have changed its verdict in favor of Canadian Pacific had Lesmeister’s transcribed
statement had not been admitted as an exhibit.
Affirmed.
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