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Johnson v. Mississippi Valley Barge Line Company.

August 21, 1964

KELLY E. JOHNSON, APPELLANT,
v.
MISSISSIPPI VALLEY BARGE LINE COMPANY.



Author: Staley

Before McLAUGHLIN, STALEY and GANEY, Circuit Judges.

STALEY, Circuit Judge.

The plaintiff seaman filed three separate civil actions in the district court seeking damages for injuries alleged to have been sustained on three different occasions while he was employed by the defendant. In each of them jurisdiction was predicated on the Jones Act. 46 U.S.C. ยง 688. A fourth suit was filed requesting consequential damages for the alleged failure of defendant to furnish maintenance and cure for the injuries said to have been sustained on these three occasions. The cases were consolidated for trial, and the jury returned a verdict in favor of the plaintiff on two of his claims, found in favor of the defendant on the third, and awarded the plaintiff $1,000 in his suit for maintenance and cure. The appeals of the plaintiff are directed only to the latter two claims in which prejudicial error is premised upon evidentiary rulings of the trial judge as well as allegedly erroneous instructions to the jury.

The first point is that the district court erred in refusing to allow plaintiff's medical witness, Dr. Pochapin, to testify as to the history given by plaintiff at the time the physician examined him. It is admitted that Dr. Pochapin examined plaintiff not for the purpose of treating him, but solely for the purpose of testifying about his condition at the trial. Plaintiff asserts that the doctor's testimony concerning this history was vital on the question of causation since defendant denied that he was injured while working for it on the date in question.

On this issue the parties have argued for and against the broad proposition that a physician who examines a patient only for the purpose of testifying in court should be permitted to testify as to the medical history the patient related to him. We find it unnecessary to rest our decision on this broad ground for the reason that an examination of the record makes it abundantly clear that the ruling of the district court did not give rise to prejudicial error.

Dr. Pochapin was permitted to testify freely as to the condition of the plaintiff and also stated that this impaired condition resulted from an injury. But the doctor himself informed the court that he was unable to obtain from the patient any credible information as to where and when he was injured. As best expressed in the physician's testimony:

"THE COURT: He didn't tell you about particular injuries that he claimed he had.

"THE WITNESS: Yes, he did.

"THE COURT: Did he give you dates?

"THE WITNESS: I did not get any dates because he was entirely confused. He didn't know what date it was. He didn't know what year, and his confusion the first time was so great when I asked him who was president of the United States, he said George Washington, and I didn't ask him any dates after that.

"THE COURT: Well, I think under that situation, under the understanding that you are not attempting to show the time of these injuries by this doctor, is that it, Mr. Schlesinger?

"MR. SCHLESINGER: That is correct.

"THE COURT: You are not attempting to show the time of the injuries by the doctor. There has to be independent proof, even whether he got them or not, even whether he got them on the vessel. It is not offered for that purpose?

"MR. SCHLESINGER: No, I am asking him as in accordance with standard medical procedure just ...


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