Beins v. U.S., 81-1978

Citation695 F.2d 591,224 U.S.App.D.C. 397
Decision Date07 December 1982
Docket NumberNo. 81-1978,81-1978
Parties, 11 Fed. R. Evid. Serv. 1823 D. Ross BEINS, Appellant, v. UNITED STATES of America.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-03322).

Daniel U. Smith, San Francisco, Cal., for appellant.

John W. Polk, Royce C. Lamberth, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee. Stanley S. Harris, U.S. Atty., Washington, D.C., entered an appearance for appellee.

Before ROBINSON, Chief Judge, LUTHER M. SWYGERT, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit, and WALD, Circuit Judge.

Opinion for the Court filed by Circuit Judge WALD.

Concurring Opinion filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.

WALD, Circuit Judge:

The plaintiff-appellant, D. Ross Beins, appeals a judgment of the district court for the government under the Federal Tort Claims Act (FTCA). 1 We find the district court with one exception applied the proper law, did not err in its finding of no negligence, and did not commit reversible error by limiting an expert witness' testimony; accordingly, we affirm.

I. FACTUAL BACKGROUND

This case involves the Federal Aviation Administration's (FAA) denial to a pilot, on five separate occasions, of an airman medical certificate, which he needed to resume his career as a commercial airline pilot. 2

A. FAA Medical Certification Procedures

Some understanding of the FAA certification procedures is necessary to follow appellant's path through the application process. 3 The Federal Aviation Act directs the Administrator of the FAA to investigate each airman to insure that he "possesses proper qualifications for, and is physically able to perform the duties pertaining to, the position for which the airman certificate is sought." 49 U.S.C. Sec. 1422(b). In carrying out this duty, the Administrator requires a pilot to obtain a medical certificate as a condition to the issuance of an airman's certificate (which also certifies aviation skills). The Administrator has delegated, pursuant to 49 U.S.C. Sec. 1344(d), statutory authority pertaining to medical certification to the Federal Air Surgeon. 14 C.F.R. Sec. 67.25 (1982).

The FAA issues medical certificates in three classes. The Federal Aviation Regulations set forth in detail the medical standards for each class of certificate. See 14 C.F.R. Secs. 67.13, .15, .17 (1982). A captain of a commercial aircraft must have a first-class medical certificate, and a copilot or flight engineer must have at least a second-class certificate. See id. Secs. 61.3(a), .3(c), .23, .123(c), .139, .151(e), .171, 63.3(a), 121.437(a)-(b). A third-class medical certificate will allow an airman to fly only as a private pilot. See id. Sec. 61.103(c).

In most cases, the applicant for a medical certificate begins the process with an examination by a private physician who has been designated by the Air Surgeon to serve as an aviation medical examiner (AME). See id. Sec. 67.23. The AME examines the applicant's medical history and his current condition to determine whether he meets the medical standards set forth in the regulations. If the AME denies the certificate, the applicant has thirty days to petition the Air Surgeon for reconsideration. Id. Sec. 67.27(a). The Air Surgeon will often send an applicant's file to expert consultants prior to making a final decision. A denial by the Air Surgeon or by certain other FAA officials is considered a denial by the Administrator, id. Sec. 67.27(b), and is appealable to the National Transportation Safety Board (NTSB), 49 U.S.C. Sec. 1422(b).

An applicant who fails to meet the medical standards may petition the Air Surgeon for a "special issue" certificate. 14 C.F.R. Sec. 67.19 (1982). In these cases, the regulations give the Air Surgeon discretion to offer a special flight, test, or evaluation to determine whether the airman can perform his duties without endangering safety in air commerce. In acting on a petition for a "special issue" certificate, the Air Surgeon relies on the recommendation of a panel of consultant medical specialists. At the time of the events in this case, the special issue procedures were not applicable to pilots, copilots, or flight engineers who suffered any of nine disqualifying conditions. Id. Sec. 67.19(d). Certain neurological problems were disqualifying, but a failure to meet the specific neurological standards cited by the Air Surgeon in his denials of appellant's applications, see id. Secs. 67.13(d)(2)(ii), .15(d)(2)(ii), .17(d)(2)(ii), was not. Appellant also does not have normal fields of vision, which are required for a first or second-class certificate, but which have not been an absolute prerequisite to authorization under the special issue procedure. 4

B. Appellant's Applications for Medical Certification

Appellant, D. Ross Beins, began flying for United Air Lines in December 1966. He held a first-class airman medical certificate from 1966 through April 29, 1971. When appellant reapplied at that time for a first-class certificate the FAA declined to act until it could evaluate his hospitalization on May 8, 1970, for what appeared to have been a generalized seizure.

Physicians involved in appellant's case--then and since--have disagreed about the precise cause of the 1970 incident, and these differences have played a critical role in their conflicting views on both appellant's later hemorrhage in 1974 and his overall fitness to be a pilot. Appellant was taken to the hospital early in the morning on May 8, 1970, after his wife, noticing that he was perspiring heavily and shivering, was unable to wake him. Appellant remained in the hospital for five days. The examining neurologist described appellant as having a tonic-clonic contraction. The treating physician wrote in appellant's discharge summary that the patient had suffered a "syncopal episode of excessive muscle contractions; amnesia; stridulous breathing; etiology undetermined." Beins v. United States, No. 79-3322 (D.D.C. Aug. 5, 1981) mem. op. at 2, reprinted in Appendix (App.) at 1, 2 [hereinafter cited as District Court Opinion].

Nonetheless, on October 15, 1971, after evaluating the 1970 incident, the FAA issued appellant a first-class medical certificate with operational restrictions. On October 5, 1972, the FAA granted appellant an unlimited first-class medical certificate. The FAA renewed the unlimited certificate for 1973 and 1974.

On November 19, 1974, appellant suffered a spontaneous intracerebral hemorrhage. The major symptom of appellant's hemorrhage was loss of his entire right field of vision in both eyes. Appellant's physicians promptly placed him in a hospital and administered an arteriogram (an X-ray photograph of arteries). The arteriogram showed one vascular malformation in the left rear of the brain, and suggested another smaller one in the left front region.

Dr. S.R. Winston performed a craniotomy on appellant. He removed a blood clot that was about two and a half inches inside the occipital lobe (located in the left rear of the brain). Dr. Winston also took out a smaller subdural hematoma (a swelling containing blood close to the brain surface) in the same area. Since Dr. Winston did not perform surgery in other regions of the brain, he could neither confirm nor deny the existence of other vascular malformations. In his summary diagnosis, however, Dr. Winston mentioned a possible left frontal microangioma (a small tumor composed chiefly of blood vessels) and a suspect right parietal (upper posterior wall) microangioma. After surgery, appellant had only a fifty percent field of vision on his right side. This improved in the following months, until by June 1975 his loss was only twenty-five to thirty percent. His condition appears to have stabilized at that point.

On November 11, 1975, appellant applied to an AME for a first-class airman medical certificate. After denial by the AME, appellant requested reconsideration by the Federal Air Surgeon. Appellant gave the FAA the hospital records relating to the surgery in 1974, medical documentation of the improvement in his field of vision, and authorization forms for the release of other information. Prior to acting on appellant's application, the Air Surgeon sought the opinion of Dr. Sam Hunter, a neurosurgeon and an FAA consultant. Dr. Hunter recommended denial. On March 25, 1976, the Air Surgeon denied appellant's application. The Air Surgeon's letter to appellant explained that the decision was based on appellant's intracranial hemorrhage and surgery, which resulted in a visual field defect, and appellant's current use of anticonvulsant medicine. Appellant did not appeal the Air Surgeon's denial to the NTSB.

On August 30, 1976, appellant applied again for an airman medical certificate, but this time he sought only a third-class rating. The Air Surgeon once more consulted Dr. Hunter, who again recommended denial. On March 10, 1977, the Air Surgeon denied appellant's application because: "(1) he had had an intracerebral hemorrhage requiring surgery; (2) he had a visual field defect; (3) there was a continued risk of post-operative seizures; and (4) diagnostic studies revealed the presence of other vascular malformations, presenting the risk of further bleeding episodes." District Court Opinion at 4. Appellant again did not appeal this decision to the NTSB.

On June 20, 1977, appellant petitioned the FAA for an exemption from a neurological requirement, 14 C.F.R. Sec. 67.17(d)(2)(ii) (1982), and for the issuance of a third-class airman medical certificate. The Air Surgeon referred appellant's file to Dr. Thomas Auth, a neurologist and an FAA consultant. Dr. Auth concluded that appellant should not be certified for four reasons: a persisting electroencephalogram (EEG) abnormality in the left temporal lobe;...

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