The opinion of the court was delivered by: DAVIS
* * * found about one inch from the top of the can a band of corrosion about one and half inches in heights all around the circumference of the can in this area. It looked like rust. (D. Ex. 2.)
This was reiterated by the physician's testimony in Court, and corroborated by the plaintiff's spouse, who was also present during the initial examination of the can. This evidence was taken into consideration by the treating physician in diagnosing the plaintiff's attack as acute food poisoning.
Although given ample opportunity to thoroughly analyze the contents of the can (P. Ex. 1), since it was voluntarily relinquished by the plaintiff's spouse to defendant's claim investigator ten days after the plaintiff's attack, no satisfactory evidence was submitted by the defendants to the contrary. Instead the defendants rather strenuously but unconvincingly asserted that only a visual examination of the can had been conducted, notwithstanding that first, the can was in the possession of the defendants for about two months; second, that it was sent to the defendant Hunt-Wesson's quality control laboratory in California and finally, one of the defendant's agents had indicated in 1963, one year after the attack, that:
It [the can] was returned to you in the same condition in which it was received except that some of the material had to be removed by the chemist to make an analysis. (See enclosures to plaintiff's motion under Rule 34, (document 7)).
While the Court does not wish to suggest any impropriety on the part of the defendants or their agents, the three factors recited above are indicative of the existence of an adequate opportunity to have examined the can for the purpose of rebutting or otherwise refuting the observation of Doctor Ferri and Mrs. Martella, and the reasonable conclusions which were derived therefrom.
In this regard, the diagnosis and observation of Doctor Ferri regarding the presence of a deleterious substance in the can, was substantiated by the testimony of Doctor Bernard Witlin, a bacteriologist, who indicated that:
* * * the substance in the can had to be a contaminant or filth. (N.T. p. 324).
The more significant question however, is whether the plaintiff's condition of portal cirrhosis of the liver was causally related to the food poisoning. This problem presented the usual conflict of expert medical testimony.
Briefly, the plaintiff's treating physician concluded that the cirrhosis existed prior to the food poisoning attack, but was in a dormant, or latent state. He further asserted that it is a "proven autopsy fact" that such a condition could remain dormant or latent for the rest of a man's lifetime. However, he added that an infection, trauma or "insult" to the body could manifest or precipitate a cirrhotic condition. The ingestion of the deleterious tomato juice, concluded Doctor Ferri, acted as a triggering insult to the plaintiff's liver, resulting in the manifestation of the cirrhotic condition.
The position of the defendant's principal medical witness was, of course, to the contrary. Doctor W. J. Snape examined the plaintiff eleven months after the incident at issue. Doctor Snape was also afforded the benefit of Doctor Ferri's reports, as well as the records of the Delaware County Memorial Hospital. Essentially, Doctor Snape concluded that the cirrhotic condition was attributable to alcoholism. This was corroborated in part by the plaintiff's own statement given pursuant to the preparation of a medical history when he was admitted to the hospital (N.T. pp. 515-525). In ...