496 F.2d 788 (3rd Cir. 1974), 73-1600, Foster v. Crawford Shipping Co., Ltd.

Docket Nº:73-1600.
Citation:496 F.2d 788
Party Name:Mayme FOSTER, guardian ad litem of Oscar Foster, an incompetent, Appellee, v. CRAWFORD SHIPPING CO., LTD., Appellant.
Case Date:April 30, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 788

496 F.2d 788 (3rd Cir. 1974)

Mayme FOSTER, guardian ad litem of Oscar Foster, an incompetent, Appellee,



No. 73-1600.

United States Court of Appeals, Third Circuit.

April 30, 1974

Argued March 11, 1974.

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Frank C. Bender, Kelly, Dessey & Scanlan, Philadelphia, Pa., for appellant.

Marvin I. Barish, Freedman, Borowsky & Lorry, Philadelphia, Pa., for appellee.

Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.


GIBBONS, Circuit Judge.

This is an appeal from an order of the district court denying the motion of defendant Crawford Shipping Company for a new trial on damages only. The

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original plaintiff, Oscar Foster, brought an action to recover damages for his personal injuries suffered in an accident while, as a longshoreman, he was unloading defendant's vessel. On September 28, 1972, four days before the trial began, his attorneys filed a motion seeking to have Mayme Foster, the appellee, appointed guardian ad litem for Oscar Foster. On September 29, 1972 the court entered an order adjudicating Foster an incompetent. Thus he could not testify at the trial, and did not appear in court. The court proceeded first with the trial of liability issues and at the end of that aspect of the case entered a directed verdict that the unseaworthiness of defendant's vessel caused the accident in which Oscar Foster fell into a cargo hold. The liability determination is not challenged on this appeal. The trial then proceeded on the issue of damages.

It was plaintiff's theory that Foster was suffering from severe schizophrenia, and that his fall into the cargo hold on defendant's vessel was a 'triggering mechanism' which resulted in that psychotic condition. In support of that theory the plaintiff offered the testimony of Dr. Harold Dillon, Chief of Psychiatry at the University of Pennsylvania Division of the Philadelphia General Hospital, who had treated Oscar Foster between January 22, 1969 and the date of the trial, and who in answer to a hypothetical question expressed the opinion based on reasonable medical certainty that the fall was a triggering mechanism for Foster's psychiatric condition. There was contrary expert opinion testimony as to the connection between the fall and the schizophrenia by Dr. Joseph Robinson, an Assistant Professor of Psychiatry at Hahnemann Medical College, who examined Foster on behalf of the defendant. Dr. Dillon's testimony as to prognosis suggested that there was progressive deterioration which would continue, that Foster would never be gainfully employed, that he would need hospitalization for at least one month a year for the rest of his life and that he would require monthly visits to a psychiatrist. As might be expected, Dr. Robinson's testimony as to prognosis was considerably more optimistic, suggesting the likelihood of periodic remission. There was evidence establishing a life expectancy of 37 years and a work expectancy of 30 years. The amount of damages was clearly related to Foster's present condition and prognosis. The verdict is for $500,000.


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