Opinion by
T1 Defendant, BNSF Railway Company, appeals the judgment entered and damages awarded after a jury trial in favor of its employee, plaintiff Thomas F. MeLaughlin, on his statutory strict liability and negligence claims.
12 Among the issues the railroad raises are two that present matters of first impression in Colorado, both relating to damages.
13 First, did the district court err in giving the jury an "eggshell skull" or "thin skull" instruction because it also gave an instruction on apportioning damages for aggravation of a pre-existing condition? We conclude that giving both instructions may be appropriate, depending on the state of the evidence. We further conclude that, based on the evidence presented at trial in this case, the court did not err in giving an eggshell instruction, but did err in giving the aggravation instruction. Doing so, however, was harmless error because that instruction worked to the railroad's benefit.
T4 Second, did the district court err in ruling that Mr. MeLaughlin could seek recovery for lost wages even though he receives disability benefits under the Railroad Retirement Act (RRA) because of the injuries he sustained in the incident giving rise to his claims? We conclude that the district court did not err because those benefits are from a collateral source.
15 We further reject the railroad's other contentions of error, and therefore affirm.
I. Background
T6 Mr. McLaughlin was injured when a locomotive handbrake allegedly malfune-tioned when he attempted to release it. He sued the railroad for negligence under the Federal Employers' Liability Act (FELA), 45 U.8.C. §§ 51-60, and for strict liability under both the Locomotive Inspection Act, 49 U.S.C. §§ 20701-20708, and the Safety Appliance Act, 49 U.S.C. §§ 20801-20306.
T7 At trial, the railroad asserted, as relevant here, that Mr. McLaughlin's claimed injuries had not been caused by the handbrake incident. Alternatively, the railroad asserted that the jury should apportion damages because Mr. McLaughlin had preexisting conditions that the incident had merely aggravated. A jury found in Mr. McLaughlin's favor on all claims, concluding that the railroad was entirely at fault, and awarded him $1,830,000 in damages.
II. Discussion
T8 On appeal, the railroad contends that the district court erred by (1) admitting a transcript of the railroad's claims agent's post-incident interview of Mr. MeLaughlin and denying the railroad's motion for new trial based on this admission; (2) improperly instructing the jury on the eggshell and aggravation doctrines; and (8) denying its motion in limine to preclude Mr. McLaughlin from presenting evidence of lost wages because of his receipt of RRA disability benefits or to reduce the damages award by the
A. Admission of Interview Transcript
19 We reject the railroad's contentions that the district court abused its discretion by (1) admitting the post-incident interview transeript (prepared by the railroad's claims investigator) because it was hearsay; and (2) denying the railroad's motion for a new trial after its counsel discovered that someone had made a handwritten notation on the copy of the transeript that was admitted.
1. Hearsay
110 We review the district court's decision to admit evidence for an abuse of discretion. Bly v. Story,
1 11 Hearsay is a statement other than one made by the testifying witness that is offered to prove the truth of the matter asserted. CRE 801(c); Vista Resorts, Inc. v. Goodyear Tire & Rubber Co.,
112 The railroad's counsel cross-examined Mr. McLaughlin in an attempt to show that he had fabricated his account of the handbrake incident or exaggerated his injuries. For example, counsel pointed out that Mr. McLaughlin had continued to work for several days after the incident and had modified his handwritten statement about the incident after he had consulted with medical professionals. Counsel then introduced, as relevant here, one page of the post-incident interview transcript to impeach Mr. McLaughlin's testimony that he had encountered unusual tension or pressure in operating the handbrake. Mr. McLaughlin admitted that he had not described such tension or pressure to the claims agent because he "was never asked."
113 On- redirect examination, Mr. McLaughlin's counsel sought to introduce the entire transcript. The railroad's counsel objected, arguing that "[ilt's hearsay ... [aind when I used it, [Mr. MceLaughlin] agreed with the statement, so it's not even for impeachment purposes." The court overruled the objection without explanation.
14 We perceive no abuse of discretion. As noted, though the railroad's counsel challenged Mr. McLaughlin's testimony about the handbrake tension or pressure, counsel also more generally challenged his description of the incident and his injuries. Consequently, the entire transcript of Mr. McLaughlin's interview about the incident was admissible as a prior consistent statement to rebut the general charge of fabrication. See People v. Eppens,
115 Alternatively, even if we assume that the transcript was not admissible as including prior consistent statements, it was admissible to provide context for Mr. MceLaughlin's testimony on cross-examination that he had not reported experiencing tension or pressure in operating the handbrake. It was not offered for the truth of the matter asserted, and therefore was not inadmissible hearsay. See People v. Hagos,
116 Therefore, we conclude that the district court did not abuse its discretion by admitting the entire interview transcript.
2. Notation
$17 The district court has considerable discretion in ruling on a motion for a new trial, and we will not disturb its decision absent a clear showing of an abuse of .discretion. Vaccaro v. Am. Family Ins. Grp.,
118 After trial, the railroad moved for a new trial when its counsel discovered that someone, perhaps Mr. McLaughlin's counsel, had made the following notation on the admitted transcript; "Caveat = brake hurt #." The district court denied the motion, finding:
[Nlo prejudice to [the railroad] has been shown or can reasonably be inferred. The notation, by a person not identified on the document, merely states what was shown by overwhelming evidence throughout the trial to the point that it was essentially unrefuted except by argument of defense counsel: that the plaintiff was hurt by the brake. An additional stray handwritten note in the margin of a document to the same effect as copious other evidence did not prejudice [the railroad]. [The railroad]'s suggestion that the jury would have speculated that the note was an admission by [the railroad] is itself an unreasonable speculation. The reasonable inference from the note is merely that someone reading the transcript jotted in the margin what that person inferred from the plaintiff's transcribed statement....
{ 19 We agree with the district court. The notation is eryptic: particularly to a nonlaw-yer, its meaning would likely be unclear. And though the notation may have been inadmissible, there was no indication in the transcript as to who had made it, and an overwhelming amount of properly admitted evidence proved that Mr. MeLaughlin had been injured as a result of the defective handbrake. In short, the notation did not prejudice the railroad, and the district court therefore did not abuse its discretion by denying the motion for a new trial. See Garcia,
B. Eggshell and Aggravation Instructions
1 20 The railroad contends that the district court erred by giving an eggshell instruction because (1) it had not argued that the jury should decline to award any damages to Mr. McLaughlin because of his pre-existing conditions; and (2) the eggshell instruction con-tradiected the aggravation instruction. Apparently in the alternative, the railroad also contends that the court erred by declining to give its tendered special verdict form that, in accordance with the aggravation instruction, asked the jury to specify the percentage of damages it attributed to Mr. MeLaughlin's pre-existing conditions.
$21 The railroad's contentions require us to examine, first, when eggshell and aggravation instructions are appropriate as a legal matter and, second, whether the evidence introduced at trial was sufficient to justify giving each instruction. If we conclude that giving either instruction was inappropriate, we must then determine whether the error requires reversal. If we conclude that giving both instructions was appropriate, we must address the railroad's contention that the court should have given its tendered special verdiet form, which it contends would have cleared up for the jury any potential confusion caused by language in the two instructions which, the railroad argues, appears to conflict.
122 We conclude that the court properly gave the eggshell instruction and should not have given the aggravation instruction or told the jury in the modified verdict form that it should not award any amount capable of apportionment based on pre-existing conditions. But we also conclude that the errors in giving the latter instruction and the modified verdict form were harmless.
1. Background
23 In his complaint, Mr. McLaughlin alleged that the defective handbrake had caused, as relevant here, aggravation of a pre-existing asymptomatic back condition, new back injuries, and a hernia on his left side. He was fifty-seven years old at the time of the handbrake incident.
{24 Evidence presented at trial showed that Mr. McLaughlin had pre-existing back and hernia conditions. Regarding his back conditions, Mr. McLaughlin testified that, after the handbrake incident, his doctors had diagnosed him with pre-existing degenerative dise disease and other age-related deteriorating back conditions. He also said, however, that he had not experienced any back pain or problems before the incident. One of his treating doctors confirmed that Mr. McLaughlin had not felt "any significant ongoing pain, prior to the injury, that was acute
125 As to the hernia, Mr. McLaughlin testified that although he had suffered a hernia on his right side when he was seven or eight years old, the hernia was treated at that time, and he had not experienced any problems related to the hernia until after the incident. Both parties presented evidence that Mr. Mclaughlin was born with a so-called indirect, or congenital, hernia, which is a weakness in the abdominal wall that may result in a sac or small, forming hernia that makes a person more susceptible to a symptomatic hernia. However, it was undisputed that this hernia was asymptomatic before the handbrake incident. It was also undisputed that there was no way to know whether the hernia would have become symptomatic had the incident not occurred.
126 At the close of evidence, the district court gave the following eggshell instruction, over the railroad's objection:
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, conditions or diseases of the plaintiff that may have made him more susceptible to injury, disability or impairment than an average or normal person.6
127 The court also gave the jury the following aggravation instruction:
If you find for plaintiff Thomas F. McLaughlin, you should compensate plaintiff for any aggravation of an existing disease or physical defect resulting from such injury.
If you find that there was an aggravation you should determine, if you can, what portion of plaintiffs condition resulted from the aggravation and make allowance in your verdict only for the aggravation. However, if you cannot make that determination or if it cannot be said that the condition would have existed apart from the injury, you should consider and make allowance in your verdict for the entire condition.
See 3 Fed. Jury Prac. & Instr. § 128:03 (6th ed.2011); FJI-Civ. 7th Cir. 9.04 emt. c (2010). In deciding to give both instructions, the court reasoned that although the degenerative disc disease was a pre-existing condition warranting the aggravation instruction, the hernia was a congenital weakness for which an eggshell instruction was appropriate.
{28 The court declined the railroad's request to give the jury a special verdict form asking it to specify what percentage of Mr. McLaughlin's damages was attributable to a pre-existing condition. Instead, it gave a verdict form which provided, in relevant part: "What amount do you find, if any, will fairly and adequately compensate the Plaintiff for all injuries and damages he sustained? Do not include ... any amount you find to be capable of apportionment to any pre-existing condition of Plaintiff,"
2. Applicable Law
a. Provision of Jury Instructions
129 The district court has a duty to instruct the jury correctly on the law applicable to the case. Steward Software Co. v. Kopcho,
131 A court errs by giving an instruction that misleads or confuses the jury. Hock v. New York Life Ins. Co.,
132 The court's erroneous provision of an instruction is reversible error only if the error prejudiced a party's substantial rights. Hock,
b. Federal Substantive Law Applies
183 A FELA action adjudicated in state court is governed by state procedural law and federal substantive law. St. Louis Sw. Ry. Co. v. Dickerson,
134 Though "FELA interpretation is a matter of federal law, the Act is founded on common law concepts subject to explicit statutory qualifications." Stevens v. Bangor & Aroostook R.R. Co.,
c. The Eggshell and Aggravation Doctrines
135 The eggshell doctrine provides that a tortfeasor takes its victim as it finds him. Cobige v. City of Chicago,
136 The eggshell doctrine can apply in FELA cases involving pre-existing conditions. See Jordan,
137 However, a tortfeasor cannot be held liable for damages that it did not actually cause. Consequently, the aggravation doctrine provides generally that, "notwithstanding the eggshell skull rule, a 'defendant . is liable only for the extent to which the defendant's conduct has resulted in an aggravation of the pre-existing condition, and not for the condition as it was."" Schaub v. Von-Wald,
T 38 The two doctrines thus may appear to conflict as to the amount of damages properly awardable where a plaintiff has a preexisting condition: the eggshell doctrine suggests that all damages are awardable despite the condition, whereas the aggravation doctrine indicates that only the damages resulting from aggravation of the condition are award-able. Nonetheless, we conclude that the doe-trines are not necessarily mutually exclusive. Rather, instructions on both doctrines may be appropriate in certain cireumstances, depending on whether there is evidence that the pre-existing condition was symptomatic before the incident giving rise to the plaintiff's claim.
T 39 The Restatement (Third) of Torts explains that "[when a person has a preexisting condition or injury that has already caused or is causing harm of some degree, the actor is only liable for any enhancement of the harm caused by the tortious conduct." Id. § 31 emt. c (2010) (emphasis added) (addressing factual cause). An illustration to this section provides:
(Gino, who worked as a concessionaire at a sports stadium, negligently collided with Maddy, a fan attending the game, and knocked her to the ground. Maddy had an asymptomatic herniated dise that resulted in her suffering serious back injury and pain as a result of Gino's negligence, All of Maddy's harm is within Gino's seope of liability for his negligence, as a matter of law.
Id. emt. b, illus. 1; see also id. emt. b, illus. 4. However, under the same facts of this illustration
except that at the time Gino collided with Maddy, she had a mild level of chronic back pain [and] [alfter the accident with Gino, Maddy suffered severe back pain{,] Gino is subject to liability for the enhanced injury to Maddy; he is not liable for the pain from which Maddy was suffering at the time of the accident.
{40 A number of federal cases have also suggested that although apportionment of damages is appropriate where the plaintiff had a previously symptomatic condition, a plaintiff's damages cannot be reduced due to an asymptomatic pre-existing condition. See Maurer,
41 This is not to say, however, that giving instructions on both doctrines is necessarily improper where the pre-existing condition was symptomatic.
142 In Waits v. United Fire & Casualty Co.,
a defendant is liable only for injuries caused by the defendant's fault, and not for pain or disability resulting from other causes.... Thus, if a plaintiff had a prior back injury that caused pain and a ten percent disability before the injury inflicted by the defendant occurred, the defendant would not be responsible for the disability and pain that predated the current injury, but only for any additional pain and disability caused by the current injury. Under these circumstances, an aggravation instruction is appropriately submitted to the jury.
Id. at 577 (internal citation omitted) (emphases in original). Conversely, "when the pain or disability arguably caused by another con
"[the] mere existence of a prior nondis-abling, asymptomatic, latent condition is not a defense. A tortfeasor whose act, superimposed upon such a condition, results in an injury may be liable in damages for the full disability. In these cases the injury, and not the dormant condition, is deemed to be the proximate cause of the pain and disability."
_ Id. (quoting Becker v. D & E Distrib. Co.,
143 The court then indicated that both instructions could properly be given in two scenarios. First, either instruction could apply because there is evidence that the preexisting condition was dormant, nondisabling, and asymptomatic (making an eggshell instruction appropriate); and there is conflicting evidence that the pre-existing condition had already caused symptoms or disability (making an aggravation instruction appropriate). Waits,
144 We are persuaded by the Waits court's reasoning. Therefore, we conclude that giving an eggshell instruction is appropriate where there is evidence that the plaintiff had a dormant or asymptomatic preexisting condition. Giving an eggshell instruction is also appropriate where a preexisting condition was symptomatic, if there is evidence that the harm resulting from the defendant's negligence is greater than it would have been in the absence of the preexisting condition. Giving an aggravation instruction is not appropriate where the preexisting condition was asymptomatic, but is appropriate where there is evidence that the plaintiff had previously suffered pain or symptoms from the condition, and the condition allegedly was aggravated by the incident. Depending on the evidence presented, one or both instructions may be appropriate. If both are given, an instruction clarifying for the jury how both should be applied should also be given.
145 Relying on Sauer v Burlington Northern Railroad Co.,
146 In Sauer, the Tenth Cireuit considered only whether there was sufficient evidence to warrant an aggravation instruction. The court did not consider whether an egp-shell instruction also would have been appropriate. Therefore, it does not support the railroad's position.
3. Application
147 Here, as noted, the district court gave both eggshell and aggravation instructions. The railroad contends that the court erred by providing the eggshell instruction because it was not arguing that Mr. McLaughlin should not be compensated due to his "frailty," but rather that the jury should apportion damages based on his preexisting conditions. An eggshell instruction may be appropriate, however, where the defendant attempts either to eliminate or to
148 In contrast, the evidence did not support giving the aggravation instruction. In Waits, the court concluded that an aggravation instruction was proper where the plaintiff had previously suffered a herniated dise that was resolved before the incident at issue, but which the incident reinjured. Waits,
{49 Consequently, we conclude that the district court did not abuse its discretion by finding that the evidence supported giving the eggshell instruction, but did abuse its discretion by finding that the evidence of pre-existing degenerative dise disease warranted the aggravation instruction. It follows that the court did not abuse its discretion by rejecting the railroad's tendered special verdict form (allowing the jury to apportion damages attributable to pre-exist-ing conditions by percentage), but did abuse its discretion by providing a modified verdict form telling the jury not to include "any amount you find to be capable of apportionment to any pre-existing condition of the Plaintiff."
150 However, the railroad does not argue that giving the aggravation instruction or modified verdiet form was error. And, in any event, the errors were harmless because they did not affect the railroad's substantial rights. Giving the aggravation instruction and modified verdict form inured to the railroad's benefit because they told the jury to reduce the amount of damages based on Mr. McLaughlin's pre-existing conditions, thereby allowing the jury to reach a result that the evidence and the law did not warrant. See Jordan,
C. Mr. McLaughlin's Receipt of RRA Disability Benefits
1. Motion in Limine
151 Before trial, the railroad moved to preclude Mr. McLaughlin's wage loss claim because he had received disability benefits under the RRA or, alternatively, to deduct the amount of those benefits from any judgment Mr. McLaughlin might receive. The railroad conceded that because federal courts consider RRA disability benefits a collateral source of recovery, evidence thereof was not admissible at trial. However, it argued that this rule does not preclude a court from barring outright a wage loss claim or reducing a FELA judgment by the amount of disability payments.
2. Analysis
1 53 The district court ruled as a matter of law that RRA disability payments are a collateral source of recovery that cannot be offset against a FELA award. We review such a legal conclusion de novo. See Sunahara v. State Farm Mut. Auto. Ins. Co.,
154 "The collateral source rule allows a plaintiff to seek full recovery from a tortfeasor even though an independent souree has compensated the plaintiff in full or in part for the loss." Green v. Denver & Rio Grande W. R.R. Co.,
155 In Eichel v. New York Central Railroad Co.,
"The Railroad Retirement Act is substantially a Social Security Act for employees of common carriers. * * * The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of the damages caused by the employer."
Id. at 254,
156 The railroad concedes that Hichel's reasoning applies where a defendant seeks to introduce evidence of RRA disability benefits at trial. But it argues that such benefits may be offset against a FELA award. As noted, however, the collateral source rule has both substantive and evidentiary components. Thus, the Court's conclusion in E%-chel that RRA disability benefits are regarded as a collateral source of recovery in a FELA action is dispositive: a court may not reduce a plaintiff's damages under FELA based on his receipt of collateral disability benefits under the RRA. See Sloas,
157 The railroad nonetheless contends that the disability benefits are not a collateral source of recovery because the railroad contributed to those benefits. 'We noté that the railroad conceded in the district court that disability benefits are a collateral source of recovery, specifically on the second page of its motion in limine. Therefore, the railroad arguably waived this contention. In
158 In Eichel, the Court held that RRA disability benefits are a collateral source of recovery in part because they are not directly attributable to the employer.
159 Finally, the railroad asserts that the disability payments should not be regarded as a collateral source of recovery because doing so permits Mr. McLaughlin a double recovery. But under the collateral source rule, " [the plaintiff may receive benefits from the defendant himself which, because of their nature, are not considered double compensation for the same injury but [are] deemed collateral." " Id. at 890 (quoting United States v. Price,
T60 Therefore, we conclude that the district court did not err by ruling that Mr. McLaughlin's RRA disability payments were a collateral source of recovery that could not bar Mr. McLaughlin's pursuit of damages for lost wages or be offset against the FELA award.
III. Appellate Attorney Fees
T 61 Mr. McLaughlin requests an award of the attorney fees he has incurred on appeal in defending the disability benefits issue, contending that the railroad's arguments are frivolous under C.A.R. 88(d) and section 13-17-102, C.R.S8.2011. The railroad responds that the request for appellate attorney fees is itself frivolous, and therefore requests an award of the attorney fees it has incurred on appeal.
162 We recognize that the railroad's general arguments concerning the disability benefits were addressed and rejected in another case involving the railroad, Campbell v. BNSF Railway Co.,.
I 63 The judgment is affirmed.
Notes
. The railroad also contends that the transcript contained inadmissible hearsay within hearsay. It did not raise this contention in the district court, but asserts that its nonspecific, unexplained hearsay objection was sufficient to preserve the double hearsay contention for appellate review. We disagree. It is axiomatic that an appellate court considers only the specific grounds on which a party objected to evidence's admission in the district court. Am. Family Mut. Ins. Co. v. DeWitt,
. The railroad also contends in the alternative that the court erred by failing to give an instruction explaining to the jury how it should apply both the eggshell and aggravation instructions. We do not address this contention, however, because the railroad did not request such an instruction in the district court, and therefore failed to preserve the issue for review. See C.R.C.P. 51; MMG Fin. Corp. v. Midwest Amusements Park, LLC,
. We acknowledge that Mr. McLaughlin characterized one of his injuries as "aggravation of a pre-existing condition," did not object to the aggravation instruction in the district court, and concedes that the instruction was appropriate on appeal. However, by arguing that the eggshell instruction was improper because it conflicted with the aggravation instruction, the railroad placed the propriety of the aggravation instruction at issue. Cf. Grandote Golf & Country Club, LLC v. Town of La Veta,
. Mr. McLaughlin testified that he had received treatment for one back condition (osteomyelitis) approximately four years before the incident, but that the treatment had resolved the condition and he had not experienced any residual problems.
. One of Mr. McLaughlin's doctors testified that "[pleople can live with hernias all their life and not know that they have a small defect."
. As explained below, federal law governs the damages issues in this case. However, the instruction was taken from the pattern Colorado Jury Instructions for civil cases. See CJI-Civ. 4th 6:7 (2011).
. The parties frame their arguments in terms of what is proper under FELA. They do not address the other two federal statutes on which two of Mr. McLaughlin's claims were based. Our analysis and holdings, therefore, should be understood as relating to claims under FELA.
. This conclusion has also been reached by a number of state courts. See, e.g., Tuite v. Stop & Shop Cos., Inc.,
. The Waits court also recognized that eggshell and aggravation instructions can appear conflicting and confusing when read together. Therefore, where a court properly gives both instructions, the court also should give the jury additional guidance on how to apply the instructions. Waits,
. Though one of Mr. McLaughlin's doctors testified that Mr. McLaughlin may have had "an occasional backache or something like that," he characterized this as "the sort of typical things that most people have," and therefore concluded that he could not apportion any pain or disability that Mr. McLaughlin was experiencing at the time of trial to the pre-existing degenerative disc disease.
. Mr. McLaughlin's only previous symptomatic condition was osteomyelitis. However, Mr. McLaughlin did not suffer osteomyelitis again after the handbrake incident. And the doctor who testified for the railroad said that "this os-teomyelitis issue ... had nothing to do with the hernia."
. To the extent Sauer suggests that an aggravation instruction is appropriate where there is an asymptomatic pre-existing condition, we conclude that any such suggestion is dicta. Moreover, we are not bound by the Tenth Circuit's rulings on federal law. See People v. Barber,