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DOWLING v. J. C. PENNEY CO.

June 9, 1969

Mary DOWLING and James Dowling, her husband, Plaintiffs,
v.
J. C. PENNEY COMPANY, Defendant



The opinion of the court was delivered by: WEBER

 Defendant's Answer in this case raised the defense of lack of jurisdictional amount in controversy, and this was repeated in the pretrial narrative. Under the pretrial rules of this court after all discovery is closed the parties must file a pretrial narrative statement and a pretrial stipulation covering all of the issues, evidence, witnesses, exhibits, itemization and damages which will be presented at trial, and by which they are limited and bound. This is supplemented by a recorded pretrial conference. The issue of the requisite jurisdictional amount was considered at the pretrial conference.

 This is a diversity action founded on oral defamation. No evidence has been advanced by plaintiff as supporting the counts for assault and battery or false imprisonment. The shortest recital of the event on which the claim is based will serve our purpose because the issue here is damages. Plaintiff (herein used to designate wife-plaintiff, the plaintiff husband's cause of action is derivative) was approached in a neighboring shoe store by a clerk employed in defendant's nearby store. The clerk was accompanied by a policeman. The clerk said that plaintiff was the woman who had stolen a purse, pointing her out to the policeman. The policeman immediately recognized plaintiff as someone he knew, but on plaintiff's insistence he looked at her proffered purse, saw that it was well worn and told defendant's clerk that a mistake had been made, and apologized to plaintiff. The reason for the mistake became apparent when it was seen that an unidentified sales tag had become stuck to plaintiff's purse.

 The only persons immediately present were plaintiff, the defendant's clerk, the policeman, and plaintiff's sister-in-law who was the Assistant Manager of the shoe store which plaintiff was visiting at the time of the incident. Plaintiff can present no evidence of anyone who overheard the incident except possibly a stock boy in the shoe store who was standing near enough to observe the participants.

 In the determination of the present issue we are dealing solely with the issue of damages.

 Plaintiff's pretrial narrative and the pretrial stipulation asserts that no claim is being made for loss of income and no claim for special damages, except for a bill of Dr. Ruben in the amount of $50. Defendant disputes the causal relation of this bill to the injury because plaintiff had been regularly treating with Dr. Ruben for the same condition prior to the event, and plaintiff's deposition showed a long prior history of these conditions.

 These are the factors which support a claim for general damages in a defamation suit. It is admitted that none are present here.

 Her claim for special damages of $50 is supported by a letter of Dr. Ruben, attached to the pretrial statement. This recites that he had been treating plaintiff prior to this event for (1) arteriosclerotic heart disease with angina pectoris, (2) essential hypertension, and (3) exogenous obesity. The event in question occurred September 16, 1966. Dr. Ruben first saw her after this event on October 24, 1966. At that time he found her blood pressure high, her weight increased and she complained of severe headaches. He saw her three more times up to June 13, 1967 at which time he considered that her condition had been stable for the prior six months. It is apparent that these four visits after the event of September 15, 1966 provides the bases for the $50 claim.

 Dr. Ruben's opinion on the connection between the event and the possible aggravation of her condition as a result thereof is extremely weak and is doubtful under the standards of medical certainty, but for the purpose of this decision we will assume that he could so testify.

 The $50 was the total of special damages that plaintiff can produce. Under this state of the evidence at the pretrial conference we informed plaintiff's counsel that we were convinced to a legal certainty that the claim could not possibly reach the jurisdictional minimum.

 Nevertheless, because dismissal for jurisdictional purposes would probably extinguish any claim that plaintiff might have in a proper state court because of the bar of the statute of limitations, we granted plaintiff's motion for leave to file supplemental pretrial reports on plaintiff's medical condition in support of the damage claim. This leave was granted on plaintiff's counsel's representation that plaintiff was receiving additional medical treatment without cost in an army out-patient clinic as a military dependent.

 Plaintiff's supplemental pretrial material is entirely insufficient. It consists of a letter from a Dr. Slone which reveals that he never treated or examined plaintiff but relied for his opinion on the prior report of Dr. Ruben and some notes of visits by plaintiff to the army out-patient clinic. Based on these and an account of the incident furnished by plaintiff's counsel, he expresses an opinion that the incident as described aggravated plaintiff's pre-existing heart condition and hypertention and that this aggravation will continue over a long period of time. What Dr. Slone reviewed were a series of notes of visits of plaintiff to an army out-patient clinic attached to his letter. They generally reveal that the visits were routine checkups for her long-standing cardiac complaints, hypertension and obesity. Most of the visits are noted solely for having prescriptions refilled. They note frequently that plaintiff had no complaints, that the hypertension was well-controlled, but the weight control problem was a continuing battle. We find nothing in them to support Dr. Slone's second-hand opinion of causal relation and aggravation. Because the reports contain no record of her prior long-standing medical history and there is no showing that this was known to or considered by him, there is nothing to give Dr. Slone a basis of comparision. We cannot accept the proffer of Dr. Slone as an additional damage witness as a good faith showing of a claim approaching the jurisdictional amount.

 Assuming that plaintiff establishes liability and even assuming that plaintiff can establish a causal relation between the incident and her medical condition after the event there is still no evidence to support a claim for money damages for ...


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