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Cottrell v. Burlington Northern11/2/1993
rior 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 " rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. . . ."
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.
III.
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 44A 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 whe
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