concluded that plaintiff was severely depressed and that his cardiac problems were psychogenic or purely functional in nature. Dr. Rosillo also concluded that the back injury suffered by plaintiff in the fall of September 12, 1966, was the initial cause of his depression. This conclusion was based upon plaintiff's expressed fear of surgery to correct his back condition, because plaintiff associated his heart problem with his back pain, which, when severe, caused plaintiff to fear death.
Plaintiff was also examined by another psychiatrist, Dr. Heller, at the request of defendant's counsel. Dr. Heller concluded that plaintiff was severely depressed, but that the primary etiological cause of his emotional distress was his long standing obesity. Dr. Heller opined that plaintiff's mental condition, gall bladder, diabetes and heart problems all stemmed from his obesity, but that the fall of September 12, 1966 may have had an immediate triggering effect on his mental distress.
After careful evaluation of all the evidence, we find that, while the injury suffered by plaintiff on September 12, 1966, was not a significant proximate cause of his depression, it did play a part in bringing about plaintiff's mental distress. Domeracki v. Gulf Oil Corp., 202 F. Supp. 89, 91 (E.D. Pa. 1962).
Before determining the amount of the monetary damages to be awarded to plaintiff, we must consider plaintiff's claim for maintenance. Defendant, Marine Transport, paid plaintiff maintenance at the rate of $8 daily until September 22, 1967, when plaintiff was declared permanently unfit for sea duty. Thereafter, no further payments were made.
Contrary to defendant's contention that no demand was ever made by plaintiff for resumption of payments, the filing of these actions on February 27, 1967 and October 19, 1967, "* * * constituted notice of plaintiff's continuing need for maintenance and cure." Tuttle v. American Oil Co., 292 F.2d 123, 128 (4 Cir. 1961); Brown v. Dravo Corp., 258 F.2d 704, 709 (3 Cir. 1958) cert. denied 359 U.S. 960, 79 S. Ct. 800, 3 L. Ed. 2d 767. Additionally, a further demand was made at a hearing before Judge Fullam on February 25, 1969.
In any event, "[since] complete 'recovery can be had in the damage action, * * * it becomes a merely theoretical speculation whether the same recovery could also be had under a maintenance and cure count.'" Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 533 (9 Cir. 1962); Petition of Oskar Tiedemann and Co., 367 F.2d 498 (3 Cir. 1966).
In determining the amount of damages suffered by this plaintiff two important elements are, inter alia, the extent of the diminution of his earning capacity and his life, and so, his working expectancy. We find that, by reason of the injuries suffered, his earning capacity has been and will continue to be permanently and very substantially diminished, though not totally destroyed. We find, too, that plaintiff's life expectancy is quite limited and very substantially less than average, because of his almost lifelong gross obesity, which has been a prime factor in causing or contributing to his many serious medical and mental problems. He has long and persistently failed to cooperate with his own physician's medical advice, which included a low calorie diet. Both of his parents died at ages substantially lower than average. The concurrence of gross obesity and diabetes is not conducive to longevity.
After careful consideration and evaluation of all plaintiff's damage claims, we find that plaintiff has suffered damage in the total amount of $100,000.
Accordingly, we enter the following.
Now, this 26th day of August, 1970, it is ordered that
1. judgment shall be entered in Civil Action 43838 in favor of the plaintiff and against the defendant, United States, in the amount of $100,000.