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Cottrell v. Burlington Northern11/2/1993
find that plaintiff was suffering from a pre-existing condition at the time he incurred injuries in the accident or accidents in question, he is not entitled to recover damages for the pre-existing condition.
The District Court's Instruction No. 24 was simply another way of saying the same thing proposed by defendant in its proposed Instruction No. 44A.
Based on this instruction, defendant's attorneys did effectively argue, without objection, that Cottrell could not recover damages for injuries attributable to his pre-existing injuries or prior surgeries.
We conclude that defendant's proposed instructions numbered 31 and 44A were adequately covered by other instructions submitted to the jury, and therefore, defendant's substantial rights were not affected by the District Court's refusal of defendant's proposed instructions.
IV.
Did the District Court err when by failing to rule on defendant's motion to amend the judgment, it declined to offset from the judgment monies paid to plaintiff by defendant and from other sources prior to trial?
The jury returned its verdict on June 1, 1992, finding that defendant was negligent, its negligence caused Cottrell's injuries, Cottrell was not negligent, and his damages were in the amount of $1,362,236. The jury verdict was unanimous.
During the trial, outside the presence of the jury, the attorneys for defendant asked if it could be stipulated that evidence of the amount to which it was entitled as an offset against any judgment collected by Cottrell for advance payments made by defendant, and for medical bills, could be proven at a post-trial hearing. The District Court agreed that it could, and Cottrell's attorney stated that he had no objection. However, on a subsequent occasion prior to the jury verdict, Cottrell's attorney pointed out that there was no evidence of medical expense and Cottrell was making no claim for past or future medical expenses, and therefore, it would be inappropriate to offset those amounts against any judgment recovered. There was no objection to that statement by defendant's attorneys.
On June 12, 1992, defendant filed its motion to alter or amend the District Court's judgment, and in the alternative, for a new trial. The bases asserted for a new trial were those issues previously discussed in this opinion. However, defendant also sought to have the judgment amended to provide that payments advanced by defendant to Cottrell, payments advanced by the Railroad Retirement Board, supplemental sickness benefits received by Cottrell, and medical expenses paid on Cottrell's behalf by his insurer be offset from the amount of the judgment entered on his behalf.
In opposition to defendant's motion to amend the judgment, Cottrell's attorney pointed out that his stipulation during trial applied to only those offsets applied by law and which were part of the actual damages awarded. He contended that defendant was not entitled to an offset for medical expenses paid by Cottrell's insurer, because no medical expenses were sought nor recovered. He also contended that defendant was not entitled to an offset for amounts previously advanced for wage loss because the general verdict form did not distinguish the nature of damages awarded to Cottrell. Cottrell's attorneys pointed out that he submitted a verdict form which would have itemized the nature of damages awarded by the jury, but that form was objected to by defendant, and therefore, it was impossible for the District Court to determine the exact nature of damages awarded by the jury.
The District Court did not rule on defendant's post-trial motion. It was, therefor
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