later." On that same date a Pretrial Order was entered which, inter alia, granted permission to defendant to have Miss Pasceri examined within thirty days from the date of the order. No psychiatrist was ever named by plaintiff and, as a consequence, defendant did not have Miss Pasceri examined by a psychiatrist.
Viewed against this background the request for postponement to pursue a completely new claim, brain damage, came entirely too late and was unreasonable. There were no new or unforeseen developments. The severity of the impact, the nature of the injuries sustained, and the symptoms, such as they were, had been known and had remained fairly constant over the period of five years during which Miss Pasceri was undergoing examination by many specialists in preparation for trial.
No reason appears why the brain damage, if it existed, had not been discovered and disclosed prior to trial. To have granted the request for postponement under such circumstances would have constituted an abuse of discretion.
3. Refusal to Permit Testimony as to Inability to Conceive.
Plaintiff contends in his brief that the court excluded testimony relating to Miss Pasceri's inability to carry a fetus through a normal nine months pregnancy as well as testimony indicating inability to conceive at all. There is no question that testimony relating to the former was admitted (e.g. see N.T. 294) and in fact, at counsel's request, that matter was specifically brought to the jury's attention before the jury retired to deliberate after the charge. (N.T. 674-75). This discussion will be limited, therefore, to the propriety of exclusion of testimony dealing with inability to conceive.
There were only two references to child bearing in plaintiff's pretrial memorandum filed more than four and one-half years after the accident: Under "Principal Injury," following a fairly detailed description of the injury to the pelvis, plaintiff stated "The crushing type injuries to the pelvic area will interfere with and probably prevent childbirth;" and under "Present Disability," after a recitation of difficulties in walking, plaintiff stated "Minor plaintiff, who is single, has been told by competent medical authorities that because of her injuries she will not be able to give a normal childbirth." Plaintiff contends that by the use of the term "childbirth" in those two sentences he gave adequate pretrial notice of the claim that, as a result of the injuries sustained in the accident, the minor plaintiff would be incapable of conceiving a child.
It appears rather clearly that the claim of inability to conceive was an after thought, much as the claim of brain damage was. By agreement there had been full exchange of medical reports prior to trial. Miss Pasceri had been examined over a period of several years by specialists on both sides in the fields of gynecology, obstetrics, x-ray, orthopedics and urology. In the reports which were exchanged no mention had ever been made as to inability to conceive. From the medical reports it could only be concluded that plaintiff's references to childbirth in the pretrial memorandum related to inability to give natural birth or, at most, inability to carry a fetus full term, and not to inability to conceive. This is the fair meaning of the language used in the pretrial memorandum, and that meaning is borne out by the contents of the pretrial medical reports.
Pretrial conferences are held in this District under Standing Order dated October 23, 1958 pursuant to Rules 16 and 83 F.R.Civ.P. Under that Order plaintiff is required to set forth in writing, inter alia, the principal injuries sustained and the disabilities resulting therefrom. Matters not so revealed must be excluded if the pretrial procedures are to retain vitality and utility. In Payne v. S. S. Nabob, 302 F.2d 803 (3d Cir.), cert. denied, 371 U.S. 870, 83 S. Ct. 136, 9 L. Ed. 2d 107 (1962), the Court of Appeals for this Circuit Considered that Standing Order. The language used in approving the policy underlying the Order is applicable here and clearly supports the exclusion of the proffered testimony:
"It has long been the law that attorneys at the pretrial stage 'owe a duty to the court and opposing counsel to make a full and fair disclosure of their views as to what the real issues at the trial will be.' It is through such disclosure at pretrial that trial prejudice can be avoided.
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