which plaintiff was then undergoing, and that on these occasions he found an element of 'conscious exaggeration' on plaintiff's part. Testifying as plaintiff's own witness, Dr. Ornsteen stated that his examinations of plaintiff disclosed a 50 per cent functional disability of the right lower limb. Questioned on cross-examination with respect to the connection between plaintiff's 'allegations' and the pending litigation, Dr. Ornsteen testified that 'because of his allegations being so bizarre and grossly exaggerated and not in keeping with the findings in respect of the time element from the date of the injury until I examined him, these to me indicated gross exaggeration. And when there is no need for acting that way any more there will be no more of that allegation.'
Dr. Weldon, called by plaintiff, stated that he treated plaintiff from September 1957, until February 1959, at first in association with Dr. Orr and later alone. He said that on his first examination he found that the fracture of the ankle had resulted in a complication known as sympathetic muscular dystrophy, characterized by a lessening of the musculature of the leg, changes in the blood supply of that member and some degree of pain; that these complaints persisted from the time of the injury 'to the time I saw him and when I last saw him.' Dr. Weldon discovered from records that plaintiff had received treatment from other physicians, including Dr. De Palma, who had performed a series of nerve blocks in an effort to determine whether the blood supply to the extremity could be increased, thereby relieving the symptoms. The prior treatment had been unsuccessful, and Dr. Weldon ruled out surgery. Plaintiff was 'carried on' tranquillizing agents, that had been prescribed earlier by Dr. Ornsteen. Dr. Weldon stated that it was felt that in association with plaintiff's illness there was a 'pattern of exaggeration', and that the amount of pain was 'rather exhorbitant'. He testified that there is no program available at the present time to restore the proper circulation in plaintiff's limb. In the witness' opinion, the final result, insofar as the fracture itself was concerned, 'is a very good one'. He estimated that the permanent disability in plaintiff's right limb would be about 40 per cent, but stated that it is a matter of will on plaintiff's part to overcome 'a certain element of this'. He was of the opinion that plaintiff would have some difficulty in climbing, and that his main handicap would be a 'matter of fatigue'. Finally, Dr. Weldon testified: 'It boils down to the fact that I believe he should make an effort to do something to go out and work, to do another form of work, and in so -- in so doing provide his own therapy. In other words, take his mind off his disability and thereby regain a modicum of use of the extremity'.
On January 13, 1959, plaintiff was examined, at defendant's request, by Dr. M. A. Blaker, who testified as defendant's witness. After a recital of the history he had obtained, and a detailed description of his examination of plaintiff, Dr. Blaker stated that he had found nothing to indicate impairment of circulation in the right lower extremity, that plaintiff had equal and palpable pulses on both sides, and that, in his opinion, plaintiff was not suffering from a reflex sympathetic dystrophy at the time of his examination. Dr. Blaker stated that he was of the opinion that the 'very extensive and diffuse and bizarre' complaints referable to the right foot and ankle were being exaggerated, since he could find no clinical evidence of dystrophy of the right lower extremity, or of other conditions described by the plaintiff. The witness expressed the opinion that plaintiff was able to work at the time of the examination, although he did not particularize the type of work.
Plaintiff testified that his legs start to shake under him when he walks any distance or even when he stands still, that he gets sharp pains in his leg, and that he has not noticed any improvement in his condition in the last year or so.
It appears that plaintiff was about forty years of age at the time of the accident. His education included 'around' two and a half years in high school, but he has engaged only in freight handling or longshore work. In the three last full years prior to the accident, his gross income averaged about $ 5,100 per year. Plaintiff has not worked since the accident, for the reason, he explained, that he 'can't do any' work.
Whatever the degree of plaintiff's present disability, it is certainly a fair inference from all the testimony that it is the result, in large part, of his failure to cooperate in his own rehabilitation, and thus provide, to the extent possible, his own therapy. Plaintiff was under the duty, as are all plaintiffs, to make an honest and resolute attempt to mitigate the damages.
The jury's assessment of damages ($ 75,000) seems to us unwarranted under the evidence. During the trial, unable fully to control his emotions, Matyas, in full sight of the jury, gave vent to tears while testifying and on several other occasions, while medical testimony concerning his injuries was being heard. We are convinced that the amount of the verdict in his favor reflected the influence of the sympathy evoked by those tears and accounted for the fact that the award to him substantially exceeded the award to Litwinowicz who undoubtedly suffered much the more serious injuries. We conclude that this verdict is excessive, and that a new trial should be granted, unless the plaintiff, Matyas, files a remittitur of all sums in excess of $ 55,000. Accordingly, we enter the following
Now, December 21, 1959, in Civil Action 21553, it is ordered that the posttrial motions of the defendant, Weyerhaeuser Steamship Company, and of the third-party defendant, Nacirema Operating Co., Inc., are denied.
In Civil Action 21554, it is ordered that the post-trial motions of the defendant, Weyerhaeuser Steamship Company and of the third-party defendant, Nacirema Operating Co., Inc., for a new trial will be granted unless the plaintiff, Joseph Matyas, on or before January 15, 1960, files a remittitur of all sums in excess of $ 55,000. The remaining post-trial motions of the said defendant and the said third-party defendant are denied.