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Neff v. Dravo Corp.

decided: February 27, 1969.


Ganey, Freedman and Seitz, Circuit Judges.

Author: Ganey


GANEY, Circuit Judge.

This is an appeal solely from the asserted inadequacy of a verdict and judgment entered thereon in favor of the plaintiff in an admiralty action which was filed for maintenance and cure and given the number of 65-15, combined with a civil action for damages, No. 65-322. In the civil action, under the Jones Act, judgment was entered on a verdict in favor of the plaintiff in the amount of $25,000.00, and in the admiralty action for $353.21. The district court tried the two actions separately before the same jury, pursuant to Fitzgerald v. United States Lines, 374 U.S. 16, 83 S. Ct. 1646, 10 L. Ed. 2d 720. In the admiralty action, the trial judge transferred the consequential damages which followed from failure to pay maintenance and cure to the civil action to be computed along with the damages arising from the injuries on the civil side of the case. A motion for a new trial in the civil action was granted on June 28, 1968, and on October 20, 1968, there was a denial of the appellant's motion to alter that judgment. Accordingly, there remains only the appellant's appeal from the verdict which the jury rendered, and the judgment entered thereon in the maintenance and cure action, the civil action for damages being listed for a new trial in the court below.

Herman Neff, the appellant, was sixty-three years of age at the time of trial and had been an employee of Dravo Corporation beginning on August 8, 1947, when he received an injury caused by striking his head on the deck of the ship of the respondent company. He used illness as an explanation of his failure to report for duty from that time on, on various ships, some twenty odd times. His jobs on the various ships of the respondent company were the longest continuous work he had ever done before in his life, some nine years, and before that he had served two terms in the Army and had been, on and off, a migrant worker. He testified that he was in good health when he went to work for the respondent and that his work was almost exclusively in the engine rooms of the various vessels. He testified that the engine rooms contained fumes from the diesel oil, lube oil and also exhaust fumes, which were present at all times when the engine was running and he never recalled a time when there were not fumes in the engine rooms. The fumes had a very strong smell, and could be seen in layers when the sunlight came through the windows. He would feel good when he went back onto the boat on the various times he reported to the respondent company, after time off, but after a couple of days working, the fumes would nauseate him and give him a headache which was the reason, as has been indicated, for his leaving on the number of occasions he did. He went to bed on the night of May 8, 1964, and when he awoke in the morning, he was dizzy and had a headache, as he had been working for three days in a closed compartment painting. On the morning of May 9, 1964, he was compelled to leave the motor vessel, Victory, on which he was employed on the Ohio River, accompanied by another seaman from the vessel, who took him to the respondent's plant clinic. This was the last time he had been employed by the respondent or any other employer. The clinic sent him to the Public Health Hospital in Pittsburgh, where he was treated in the dispensary, and they sent him from there to the Baltimore Marine Hospital where he stayed some twenty-six to twenty-seven days, from June 7, 1964, to July 7, 1964. He was hospitalized again in the Sewickley Valley Hospital in Pittsburgh, from October 14, 1965, to November 7, 1965, and from that time on he was never treated by a physician until he was examined by Dr. Sherman on three separate occasions, August 17, 1967, October 3, 1967, and January 11, 1968.

Dr. Sherman testified that he had examined the Baltimore Hospital records and the Allegheny Hospital records and was acquainted with the Public Health records, but had not seen the records at the Sewickley Valley Hospital before he testified at the trial. He testified to the records of the various hospitals, as well as to his own examination of the appellant, but the records had to be repeatedly gone over as Dr. Sherman testified about one hospital record while having another one before him, and it was most difficult to establish dates, as, for instance, the date of appellant's admission to the Allegheny Hospital, and, generally, the record, as presented, was complied in a most complicated manner and the briefs on both sides did little to clarify the situation.

The Public Health Service reports, from which Dr. Sherman testified, show that as early as 1950, the appellant had headaches, and this was true during the time he was employed by the respondent on the various ships, although they showed no record of emphysema, which none of the hospital records showed, as will be indicated later, except that taking them into consideration and after his own examination, he made a positive diagnosis of emphysema basing it on the DiBono whistle test and appellant's shortness of breath.

However, a close perusal of the record discloses that Dr. Sherman testified from the Allegheny Hospital records that appellant's condition, as of June 10, 1955, was diagnosed as essential cerebral angiitis. The history before his admission shows that the appellant had been cleaning an engine with a solvent, and, passing out, that he received several blows to the head while on board ship; that he was a heavy drinker of alcohol and smoked at least one pack of cigarettes a day. He further stated that the record showed he had a cerebral vascular insufficiency which, as of the date of his testifying, he stated, had not improved. Particularly, Dr. Sherman stated, "I would certainly say it was aggravated and if he was exposed to fumes, it certainly would be aggravated." He then described the treatment given to a patient suffering from cerebral vascular insufficiency and when asked the direct question whether it would be of benefit to appellant now, he replied, "I question it very very much." Further, that he was suffering from a diabetic condition and emphysema, and that both conditions could be benefited by medical treatment, but, as to the involvement of the central nervous system, he stated, "Medically, that is not going to help him at this stage."

Likewise, Dr. Huber, who saw the appellant at the Allegheny Hospital, testified, by deposition, that at the time he treated him it was for a headache and dilated blood vessels on the right side of the forehead.

At the Baltimore Marine Hospital (June 7, 1964, to July 7, 1964), Dr. Sherman read a summary of his condition at the end of his hospitalization, showing (1) cerebral vascular insufficiency, (2) a diabetes glucose tolerance curve showing appellant had diabetes, and (3) a central nervous system involvement. As to the first finding, Dr. Sherman testified that he doubted very much if anything could be done for him now, but, as to the second finding, the diabetic condition, he should have continued medical care to control it and that nothing could be done for him now for his central nervous system involvement. In commenting on this hospital record, Dr. Sherman said that he should have medical attention presently, that he should not be left without help being given him as his condition was progressing and it would terminate in vegetation.

Here, while no pathological condition was found present and his chest x-rays were alright, the consultant neurologist said his condition was probably due to a case of artery insufficiency, but, in the absence of objective findings, no anti-co-agulants were recommended and the only medication given him was Arlidin for diabetes. Dr. Sherman's conclusions, as to diabetes, was, first, that he had diabetes, by reason of the glucose tolerance curve, but later testified that his opinion was conditional diabetes. The report there also showed that, as part of appellant's history, he had told them that he had suffered from persistent frontal headaches for a period of nine years. They also found that there was a slightly abnormal glucose tolerance test and he was placed on an 1800 calorie diet, and that he had a minor form of diabetes. While here, the report showed no condition of emphysema, but Dr. Sherman testified that, in his judgment, he was suffering from emphysema.

Appellant was brought into the Sewickley Valley Hospital on October 14, 1965, and placed in an emergency room by the police because he was found confused. In the hospital's System Review of his cardio-respiratory system, they found that he had no undue shortness of breath, chest pain, chronic cough, palpitation or edema and no past history of pulmonary disease. They found that his chief problem was his inability to walk and his state of mental confusion. They also found that the Romberg test was suggestive of being positive, that is by putting both feet in tandem fashion and closing one's eyes and then putting one foot in front of the other and attempting to walk, there was a swaying backwards and forwards, and, therefore, the test was found to be positive. However, since the Romberg test at the Baltimore Marine Hospital was negative, Dr. Sherman testified this report showed that his condition was getting progressively worse, even though he had never been on a river boat in the intervening period of time.

The final diagnosis at the Sewickley Hospital showed peripheral neuropathy, that is a pathological condition of surface nerves and perhaps some posterior column degeneration, that is some degeneration of the posterior of the spinal cord, secondarily, diabetes, alcoholism or perhaps some pernicious anemia. Part of the final diagnosis was that he had encephalomyeloneuropathy, chronic, due possibly to past alcoholism. Secondarily, also, was the diagnosis of portalembiosis, which is an infection of the liver. Likewise, the record shows that he had diabetes mellitus, latent. The doctor testified that the central nervous system damage was indicated by the fact that the report showed neuropathy, it being part of the condition described as encephalomyeloneuropathy, which is indicative of chronic central nervous system involvement which had been present for some time.

In short, at the Sewickley Hospital, Dr. Sherman summarized the report succinctly in saying that during the time he was confined from October 14, 1965, to November 7, 1965, (1) he had a tolerance curve showing a diabetic condition, that he must have continued medical treatment to control it, (2) that he was unable to walk unless he had hold of someone, and was in a state of mental confusion, and, as indicated, the Romberg test showed that his condition was worsening, (3) that he had a peripheral neuropathy and degeneration of the posterior part of the spinal cord. He testified that, even excluding a finding of ...

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