                          This opinion will be unpublished and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                         UNPUBLISHED OPINION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


                                             2
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


                                              3
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


                                             4
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.


                                               5
                                             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


                                             6
              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


                                              7
              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


                                              8
              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



                                             9
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




                                             10
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


                                             11
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


                                             12
              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



                                             13
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




                                                14
would have changed its verdict in favor of Canadian Pacific had Lesmeister’s transcribed

statement had not been admitted as an exhibit.

      Affirmed.




                                           15
