deMars v. Equitable Life Assur. Soc. of U.S., No. 79-1100

• Decision Date: 11 December 1979
• Docket Number: No. 79-1100
• Citation: 610 F.2d 55
• Parties: 5 Fed. R. Evid. Serv. 495 Andrea F. deMARS, Plaintiff-Appellee, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 55

610 F.2d 55

5 Fed. R. Evid. Serv. 495

Andrea F. deMARS, Plaintiff-Appellee, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES Defendant-Appellant.

No. 79-1100.

United States Court of Appeals First Circuit.

Argued Sept. 7, 1979.

Decided Dec. 11, 1979.

Charles F. Barrett, Boston, Mass., with whom Werner Weinstock, Joseph G. Williams, Jr., New York City, Brian T. Kenner and Nutter, McClennen & Fish, Boston, Mass., were on brief, for defendant-appellant.

Neal C. Tully, Boston, Mass., with whom Thomas E. Cargill, Jr., and Cargill & Masterman, Boston, Mass., were on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, KUNZIG, ^* Judge, U.S. Court of Claims, BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

This diversity case arose out of the refusal of defendant-appellant, The Equitable Life Assurance Society of the United States, to pay plaintiff-appellee, Andrea F. deMars, widow of the insured decedent, John O. deMars, benefits claimed under the accidental death provisions of a group life insurance policy. The following issues are raised on this appeal from a jury verdict in favor of appellee.

1. Is there sufficient evidence to uphold the verdict.

2. Was it reversible error to allow portions of a letter written by a deceased physician to be read to the jury.

3. Did plaintiff-appellee meet the proof of loss requirements of the policy.

4. Should a new trial have been granted.

The Facts

The case has an unusual setting. The insured had suffered for a number of years prior to his death from chronic obstructive lung disease with bronchitis, bronchiectasis, bronchial asthma, and emphysema. Although deMars started having serious breathing problems in August of 1967, he continued to lead an active and even vigorous life. His work at Raytheon required extensive travelling between 1967 and 1969, which he was able to do. deMars and his wife had seven children and he and his family engaged in strenuous outdoor recreational activities, including camping and skiing. In May of 1971, deMars suffered a severe respiratory problem and nearly died. He underwent a tracheotomy and was hospitalized for six weeks. It was determined that, in order to live, deMars would need a continuous oxygen supply. When he was discharged from the hospital, he was fitted with a portable oxygen tank, which he wore at all times, that had a tube running from it into one of his nostrils so he would be inhaling oxygen continuously. Arrangements were made for storing oxygen tanks at his home and office so the portable tank could be replenished whenever necessary.

Despite this handicap, deMars continued to live as normal a life as possible. He returned to work after the hospitalization and was soon back on a full schedule. He and his family took a fall foliage trip to Vermont, and he went skiing at least twice during the winter of 1971-1972.

The accident leading to deMars' death occurred on March 11, 1972, when he was skiing. deMars and his family had gone to Waterville Valley, New Hampshire, for a day of skiing. He and his family skied all morning. Early in the afternoon, deMars fell while coming down one of the slopes and broke his left hip. After preliminary treatment at Plymouth Hospital in New Hampshire, he was taken to University Hospital in Boston where he was put in traction and immobilized. He died on April 6. Although the death certificate stated the immediate cause of death as "possible pulmonary embolism due to Phlebitis deep," the subsequent autopsy established that there was no pulmonary embolism.

The pertinent provision of the insurance policy provides:

"Upon receipt of due proof that any employee, while insured under this policy, shall have sustained bodily injuries caused directly and exclusively by external, violent and purely accidental means, and, within ninety days after such injuries, and as a result, directly and independently of all other causes, of such injuries, shall have sustained any of the losses enumerated in the Schedule of Losses set forth below (including life), the Society will, subject to the limitations and provisions of this policy, pay to such employee, if living, otherwise to the beneficiary, an amount determined in accordance with said schedule."

The policy also has the following "limitations" provision:

"No payment shall be made under this policy for any loss resulting from or caused directly or indirectly, wholly or partly, by

"(a) bodily or mental infirmity, hernia, ptomaines bacterial infections (except infections caused by pyogenic organisms which shall occur with and through an accidental cut or wound) or disease or illness of any kind . . . ."

The determination of the cause of death was, of course, the main issue in the case. Plaintiff contended that her husband's death was caused by the ski accident. Defendant's position was that the insured's chronic obstructive lung disease was the principal and underlying cause of his death.

1. The Sufficiency of the Evidence

The standard of review that applies to a refusal to direct a verdict in favor of a defendant is well established. A verdict should be directed only where the evidence could lead reasonable men to but one conclusion. This determination is to be made without evaluating the credibility of the witness or considering the weight of the evidence. Harrington v. United States, 504 F.2d 1306, 1311 (1st Cir. 1974). The same review standard applies to a refusal to grant a motion for judgment n. o. v. The evidence and any reasonable inferences therefrom are to be reviewed in the light most favorable to the nonmoving party. Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989 (1st Cir. 1978).

Plaintiff had the burden of convincing the jury by a preponderance of the evidence that the cause of death met the policy terms, that decedent "sustained bodily injuries caused directly and exclusively by external, violent and purely accidental means," and died "within ninety days after such injuries, and as a result directly and independently of all other causes of such injuries."

The evidence adduced on behalf of plaintiff was mainly the testimony of Dr. Herbert Sise, decedent's family physician who treated him from August, 1967, until his death. The pertinent testimony of Dr. Sise can be capsulized as follows. He described the condition and treatment of deMars prior to his near fatal hospitalization in May of 1971 as a result of a massive respiratory failure. Dr. Sise stated that decedent, after being put on a continuous oxygen supply in June of 1971, "improved on this program really beyond everybody's belief." Dr. Sise did not see deMars between July 31, 1971, and the date of the skiing accident on March 11, 1972. Dr. Sise saw decedent every day from the accident until his death. Precautions were taken and special medication In April of 1972, Dr. Sise wrote to one Andrew Lane (presumably either an employee of Raytheon or Equitable) stating, "In summary it is my opinion that Mr. deMars died of acute respiratory failure which was precipitated by the necessity to withdraw steroids as a result of his fracture." At the trial, Dr. Sise changed his opinion as to the cause of death and attributed it to cardiopulmonary arrest. He testified, "My opinion is that with reasonable medical certainty this (deMars' death) was the result of the accident independently of the other conditions." He stated further:

used because of deMars' respiratory problems. Steroids, which were being given him because of his asthma, were eliminated since they interfered with the healing of the fractured bone. Four days prior to death, "(h)e really was getting along quite well, really beyond my expectations." Dr. Sise saw deMars late in the afternoon of the day he died, "and he appeared to be unchanged."

Anybody can have an arrest after a fracture and an operation. We all unfortunately experience this. And this man had gotten through his operation. He was coasting along in very satisfactory condition. We were quite proud of him.

Since an episode such as this, an arrest, can occur independently in persons who don't have any pulmonary disease or other form of heart disease, I can't say that the pulmonary disease contributed.

Dr. Sise was, as to be expected, subjected to intensive and extensive cross-examination by a highly skilled defense attorney. As pointed out by appellant, he did equivocate, and one interpretation of the second paragraph of the above quote is that he could not rule out the possibility that death resulted solely from the accident and its complications. However, while the doctor may have equivocated, he did not recant. The court, during a direct examination that was peppered with objections, interrupted to ask:

What do you mean when you say that you cannot say one way or the other whether or not the lung disease contributed to his death?

The answer was:

As I was saying, my opinion is based on reviewing his records, the experience I had with him and the finding that in the first place, his lung disease was not as irreversible as perhaps I thought it was at one time. Secondly, that if he was going to get into trouble, he would have gotten into trouble in the early part of his postoperative course when most of the lung patients get into trouble. The third place, I didn't realize he had died so suddenly. So, from the records this is clearly the case. And that's an arrest.

Now, on the basis of that, an arrest can happen to anybody and after an operation such as this. And I think there is a reasonable certainty that this could have happened independently of his lung disease, and that's all I'm trying to say.

On cross-examination, Dr. Sise was pressed as to this answer.

You want to change the words that you used in answer to his Honor's question where you said it could have happened independent of the underlying lung disease to, in fact, it did happen independent of his underlying lung condition, is that right?

The answer to this...