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Cottrell v. Burlington Northern11/2/1993
returned to, or the extent of the physical exertion he was capable of performing during his seven subsequent years of employment. He did not know the frequency of lifting nor the type of lifting involved in Cottrell's job. In fact, he knew nothing about Cottrell's 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. Meyer's 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 Cottrell's condition at the time of trial between the injury he sustained in 1980 and the injury he sustained in 1989. 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 Cottrell's 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. Williams v. Wallace (1963), 143 Mont. 11, 13, 386 P.2d 744, 745.
Therefore, we affirm the District Court's exclusion of Dr. Meyer's testimony.
II.
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 p
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