495 F.2d 890 (2nd Cir. 1974), 586, Guardian Life Ins. Co. of America v. Robitaille

Docket Nº:586, 73-2312.
Citation:495 F.2d 890
Party Name:The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Plaintiff-Appellant, v. George ROBITAILLE, Defendant-Appellee.
Case Date:April 04, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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495 F.2d 890 (2nd Cir. 1974)



George ROBITAILLE, Defendant-Appellee.

No. 586, 73-2312.

United States Court of Appeals, Second Circuit.

April 4, 1974

Argued Feb. 28, 1974.

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Bruce W. Manternach, Hartford, Conn. (Jack S. Kennedy, Robinson, Robinson & Cole, Hartford, Conn., on the brief), for plaintiff-appellant.

Morton C. Hansen, Jr., Hartford, Conn. (Fauliso, Katz & Hansen, Hartford, Conn., on the brief), for defendant-appellee.

Before KAUFMAN, Chief Judge, and FEINBERG and MULLIGAN, Circuit judges.


For the private citizen engaged in litigation, the outcome of his lawsuit may profoundly influence the future course of his life whether the issues presented raise questions of constitutional stature and great moment to the Republic, or merely rules of law that allow of limited application and arouse slight jurisprudential interest. In this appeal we consider a single, narrow question of Massachusetts law which will determine whether Guardian Life Insurance Co. (Guardian) can avoid its obligations under four policies issued to Dr. George Robitaille who, subsequent to the issuance of the policies, was diagnosed as having multiple sclerosis. Following a jury trial, Chief Judge Blumenfeld entered judgment for Dr. Robitaille. After careful scrutiny of the facts and the relevant state law, we affirm.


Since a clear understanding of the complex and technical facts is essential to the determination of this appeal, we turn first to the events preceding the litigation. Dr. Robitaille had entered active service as a medical officer in the United States Navy immediately upon his graduation in 1960 from the Tufts University Medical School. According to his testimony at trial, Dr. Robitaille applied for discharge in 1968 but, because of the ongoing hostilities in Vietnam, his application was denied. In 1969, anxious to return to civilian life and to commence the private practice of medicine in Fall River, Massachusetts, he again requested a discharge, and this time his resignation from the service was accepted.

After a complete medical examination by Navy physicians, the doctor was declared in sound health. Accordingly, just prior to his discharge, Dr. Robitaille signed a statement releasing the Navy from responsibility for any medical problems which might develop subsequently. In anticipation of his departure from the service, and on the advice of a local agent for Guardian, Dr. Robitaille purchased four insurance policies:

1. Life Insurance Policy No. 2147543, Face Amount $50,000, with a provision for waiver of premium in the event of total disability, issued July 29, 1969.

2. Disability Income Policy No. G165503, monthly benefit of $800 for total disability, payable for lifetime of the insured, issued August 15, 1969.

3. Disability Income Policy No. G165473, monthly benefit of $800 for five years for total disability, with an additional monthly hospital benefit of $400 and accidental death benefit of $1,000, issued August 15, 1969.

4. Professional Overhead Expense Disability Policy No. G164897, monthly benefit of $600 for 12 months, issued June 12, 1969.

In connection with these policies, Dr. Robitaille, who was 34 years old at the time, executed and signed an application, dated June 17, 1969, 1 in which he answered

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questions concerning his medical history. The following questions evoked responses which are at issue in this lawsuit:

8. To the best of your knowledge and belief, have you ever had or been told that you had: (a) a mental or emotional problem requiring the help of a physician or clinical psychologist, dizziness, fainting spells, epilepsy, convulsions, nervous breakdown, recurrent headaches, stroke, or any other disease or disorder of the brain or nervous system? No. (e) nephritis, kidney stone, or any disease of the kidneys, bladder, prostate, genital organs, or venereal disease? Yes. Mild prostatitis in 1967. Treated by Dr. William Urschel, Chief of Urology, Naval Hospital, Newport, R.I. No recurrence since 1967. (i) anemia, varicose veins or ulcers, phlebitis, disorder of blood? Yes. Mild saphenous varicosities L leg. No symptoms. (i) impairment of sight or hearing or any disease or disorder of the skin, ears, eyes, nose or throat? Yes. Slight bilateral high tone hearing loss secondary to acoustic trauma (gunfire) in Navy 1961. No difficulty, no change in audiograms since then. 2

9. Have you had an X-ray, electrocardiogram, blood studies, or other diagnostic test within the past five years? Yes, as a matter of routine. All normal. Naval Hosp., Newport, R.I.

13. In the past 5 years have you consulted or been treated or examined by any physician or practitioner

(a) not named above?


or (b) for any cause not recorded above? No.

In his application, Dr. Robitaille specifically authorized Guardian to examine all his medical records, a privilege which Guardian failed to exercise. On July 8, 1969, Dr. Robitaille was examined by Dr. David Greer, a medical examiner for Guardian, who indicated he was a 'first class' candidate for insurance. Accordingly, the policies were issued.

Dr. Robitaille's honorable discharge from the Navy became effective July 1, 1969. Believing himself to be in good health, he immediately proceeded to carry out his intention to establish a private practice in Fall River, Massachusetts, an endeavor which incurred the not inconsiderable expenses of renting and staffing a medical office. His career as a private practitioner was, however, short-lived. Several months after his discharge, Dr. Robitaille developed a burning sensation (paresthesias) in both legs. His condition worsened and, when he developed a weakness of the right leg, he was 'no longer able to carry on.' On November 17, 1969, he entered Massachusetts General Hospital for extensive tests 3 which produced for the first time a diagnosis of multiple sclerosis, a tragic degenerative disease of the nervous system. Following his release from the hospital on December 2, he abandoned his new practice and, in order to pursue a less demanding career, joined the staff of St. Mary's Hospital in Waterbury, Connecticut as a hematologist.

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The diagnosis of multiple sclerosis not only had a dramatic impact on Dr. Robitaille's future, it also provided a basis for the perfect hindsight with which to view his past medical history. Such 20/20 hindsight is common when a final diagnosis, even one which had evaded the best medical brains, is made. But, the process of diagnosing disease is not unlike that of fitting together a jigsaw puzzle-- seemingly disjointed pieces are suddenly placed in proper juxtaposition only after the critical connection is supplied. Accordingly, after Dr. Robitaille left Massachusetts General Hospital it became possible to surmise that several symptoms he had exhibited prior to his discharge from the military-- symptoms which had been associated by his Navy doctors merely with the ailments revealed in his insurance application-- might, now that everyone was wiser, really have been early indications of neurological disorder.

A brief recitation of the history of his symptoms is in order. 4 In early June 1968, Dr. Robitaille experienced some dizziness (positional vertigo) and oscillations of the eyeball (nystagmus) which were attributed by Dr. E. J. Sacks, a Navy otorhinolaryngologist, to the acoustic trauma Dr. Robitaille suffered in 1961. Apparently no treatment was prescribed and these symptoms disappeared completely by the end of July 1968. In october 1968, Dr. Robitaille noticed a blurring of vision in his right eye which Dr. Dunbar Hoskins, a Navy ophthalmologist, examined and believed to be caused by congenital nuclear cataracts. Dr. Robitaille disclosed this finding to Guardian's medical examiner, Dr. Greer, but the condition was subsequently recognized at Massachusetts General as a scotoma, or isolated area of depressed vision. 5 According to uncontradicted testimony at trial, a scotoma does not necessarily impair vision and, indeed, Dr. Robitaille's vision remained 20/20.

Finally, in early 1969, Dr. Robitaille experienced a 'vague sensory disturbance' in his right leg and a numbness in his hands, which he mentioned to Dr. T. A. Grossi during his annual naval physical in April. The numbness was described as a 'pins and needles' sensation which Dr. Grossi attributed to Dr. Robitaille's habit of leaning his elbows on his desk as he worked. In addition, Dr. Grossi conducted a complete neurological examination and found no abnormality.

Despite the transitory nature of these symptoms, when Dr. Robitaille traveled to Chelsea Naval Hospital in Boston on official business in April 1969 he described his physical findings to Dr. Leland Patterson, a neurologist. During their casual conversation, Dr. Robitaille asked whether his symptoms could be associated with any neurological disease or multiple sclerosis. Dr. Patterson conducted an unofficial neurological examination (not reported in Navy records) which proved negative, as had Dr. Grossi's several days earlier. Accordingly, Dr. Patterson found, and informed Dr. Robitaille in emphatic terms, that he did not have any neurological disorder.

We observe therefore, a background of unequivocal assurances that no neurological abnormalities were present, and consistent medical opinions that his symptoms were related to the prostatitis and acoustic trauma. Nevertheless, when multiple sclerosis was subsequently diagnosed

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and Dr. Robitaille was unable to continue his private practice, Guardian sought to avoid liability under the policies because of alleged material misrepresentations in the application, a ground not infrequently asserted when the insurer faces substantial liability. Accordingly, Guardian brought this action to rescind the four policies and to enjoin Dr....

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