Raycraft v. Duluth, Missabe and Iron Range Railway Co.

• Decision Date: 16 January 1973
• Docket Number: No. 72-1049.,72-1049.
• Citation: 472 F.2d 27
• Parties: Blair H. RAYCRAFT, Appellee, v. DULUTH, MISSABE AND IRON RANGE RAILWAY COMPANY, a corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

472 F.2d 27 (1973)

Blair H. RAYCRAFT, Appellee, v. DULUTH, MISSABE AND IRON RANGE RAILWAY COMPANY, a corporation, Appellant.

No. 72-1049.

United States Court of Appeals, Eighth Circuit.

Submitted November 13, 1972.

Decided January 16, 1973.

William O'Brien, Duluth, Minn., for appellant.

Mary Jeanne Coyne, Minneapolis, Minn., for appellee.

Before MATTHES, Chief Judge, MEHAFFY, Circuit Judge, and VAN PELT, Senior District Judge.^*

VAN PELT, Senior District Judge.

This is an action for personal injury brought under the Federal Employers' Liability Act. Plaintiff, Raycraft, alleged that he was riding in the caboose of a train as a conductor and that as a result of the sudden stop of the train he was thrown to the floor and injured when another employee fell on his back. At the trial the defendant railroad (DM & I) admitted its negligence in the emergency stop. The factual issues were, therefore, the physical cause of plaintiff's back difficulties and the amount of damages. The case was submitted to a jury which returned a verdict of $112,836.85. Defendant's motion for a new trial was denied. Defendant brings this appeal.¹

Resolution of the factual issues demands a review of the history of plaintiff's back difficulties. Prior to 1942 plaintiff had worked for DM & I as a brakeman. In 1942 while undergoing basic training in the Army he suffered a back injury. He received treatments for this injury, and served out his enlistment in the train service of the Army. He returned to DM & I employment working from 1945 to 1955. Twice he sustained back injuries during this time. In 1955 plaintiff bid for and received a yardmaster's job. He worked as a yardmaster until 1966. In 1960 a laminectomy was performed on his back by a Doctor Atmore; a second laminectomy was performed by the same doctor in 1963. During this time he had on several occasions applied for higher disability ratings from the Veterans Administration (VA); he was also examined several times during this period by the VA. Ultimately he received a 70% disability rating, of which 50% was attributable to his back condition.

On June 3, 1966, plaintiff requested an examination from DM & I in order to again qualify for train service. This examination was given on August 11, 1966, at which time he told the company physician, Doctor Meyer, that he had no back trouble. The doctor found him first for train service. He worked in the train service from 1966 until the 1969 accident. On July 16, 1966, plaintiff was recalled for physical examination by the VA in order to review his disability rating. He indicated to the VA that he was having intense back problems and was thereby unable to work to his fullest capacity with DM & I (this examination led to the above mentioned 50% disability rating for his back condition). Doctor Meyer was aware of the two prior laminectomies, and, in fact, had declared Raycraft unfit for train service in 1963, but he was unaware of the results of the VA examination or of the claims Raycraft had made to the VA about his back.

For the next three years plaintiff worked in the train service. During this time he was periodically reexamined by the railroad and found fit. On September 20, 1969, the accident in question took place. He had back problems after the accident and on March 18, 1970, Doctor Lerner, an orthopedic surgeon, and Doctor Titrud, a neurosurgeon, performed a laminectomy and posterior fusion. Plaintiff has suffered pain and loss of back function since then.

At proceedings in chambers at the opening of trial, the railroad made a specific offer of three sets of documents from the VA file—the Reports of Medical Examination for Disability Evaluation, made July 16, 1966, August 12, 1963, and November 26, 1962, together with orthopedic and neurological examination reports bearing like dates and the accompanying rating decisions. The court ruled that the portion of the Report of Medical Examination for Disability Evaluation containing the occupational and medical history prepared and signed by the appellee were tantamount to admissions and would be admitted as substantive evidence and not merely for impeachment purposes. The court ruled that the examination reports and the disability ratings were inadmissible, but specifically authorized the railroad to ask the appellee whether or not the VA had given him a 50% disability rating with respect to his back from the year 1966 on. The appellee, in an answer to an interrogatory, stated that he had never applied for or received disability payments from the VA.

At trial both Doctor Lerner and Doctor Titrud testified that there was a causal relationship between the accident and plaintiff's back condition; Doctor Titrud testified that he had sustained both a new injury and an aggravation of an old back injury. Doctor Meyer testified that the accident may have aggravated the back injury, but indicated that he believed the surgery was based primarily on the failure of the previous laminectomies and that plaintiff was a candidate for a fusion as far back as 1966. The orthopedic and neurological examination reports in the VA file were entitled to be considered, according to defendant's offer of proof, to support the testimony of Doctor Meyer and to prove the extent of plaintiff's back difficulties prior to the time of the accident.

On appeal appellant urges reversible error by the trial court (1) in excluding the offered documents from the VA file, and (2) in refusing to give a requested instruction that damage awards in personal injury actions are not subject to federal income taxation.

I. Admissibility of Veterans Administration Records

The appellant argues that the entire VA file should have been admitted pursuant to the business records exception to the hearsay rule, or, in the alternative, for the purpose of impeaching plaintiff's response to interrogatories denying that he had ever made a claim to VA by reason of a disability of his back.

The latter argument is easily disposed of. Prior to the trial the lower court ruled that evidence regarding VA benefits was inadmissible. During the trial, however, counsel for appellant asked plaintiff a question incorporating the interrogatory in its entirety, to which plaintiff answered that he had made a claim. This answer could be used to impeach plaintiff and would have provided defendant's counsel with a basis for arguing that the plaintiff's veracity was suspect. The VA records would not have added more than his answer on cross-examination.

The lower court felt obliged to make certain that the jury was not informed of VA disability benefits. In a similar situation the Supreme Court, in the case of Eichel v. New York Central R.R., 375 U.S. 253, 84 S.Ct. 316, 11 L. Ed.2d 307 (1963), held that the trial court had properly excluded evidence of compensation benefits for the purpose of impeachment, on the authority of the collateral source rule. See also Page v. St. Louis Southwestern Ry., 349 F.2d 820 (5th Cir. 1965). The trial court was correct that evidence of the VA benefits was inadmissible.

The other claimed error requires more extensive consideration. Rule 43(a), Fed.R.Civ.P., necessitates an analysis of both the Minnesota statute,² and the Federal statute,³ relating to business records.

The records in question here are diagnostic reports made by VA physicians for purposes of an administrative determination of plaintiff's disability claims. It is apparent that both Minnesota and federal courts have interpreted their respective statutes to allow admission of diagnostic reports under the business records act exception to the hearsay rule when such reports were made in the course of treatment. In Boutang v. Twin City Motor Bus Co., 248 Minn. 240, 80 N.W.2d 30 (1957), the Minnesota Supreme Court stated:

"The limitation upon admissibility does not apply to those non-privileged portions of the hospital record which relate solely to a medical history of the patient and are pertinent to the medical and surgical aspects of the case nor to those pathological observations thereon—even though based in part on subjective as well as on objective symptoms—which are germane to a proper diagnosis and treatment of the patient\'s injuries." Id. at . . ., 80 N.W.2d at 37 (Emphasis added).

This court in Picker X-ray Corp. v. Frerker, 405 F.2d 916 (8th Cir. 1969), held it was error to admit into evidence an incident report prepared by the business manager of a hospital even though it was the regular practice of the hospital to prepare such reports:

"Here we have records which are hospital records and which qualify as business records but have no relationship to future treatment of the particular patient, Mrs. Frerker. True, as a result of incident reports medical procedures may be changed and future patients may receive different treatment. However, Mrs. Frerker\'s treatment in no way depended on either exhibit. She had left the hospital, probably, before the business manager heard of the incident. These records thus do not have the guarantee, if ever it is such, of credibility afforded by reliance thereon by doctors and nurses in matters affecting the life and death of the patient." Id. at 922-923.

The basis for admissibility is, as noted in Frerker,⁴ that such records would have the "guarantee . . . of credibility afforded by reliance thereon by doctors and nurses in matters affecting the life and death of the patient." The analysis here would be similar to that in Frerker, that is, the records apparently satisfy the requirements of the business records exception but lack the indicia of trustworthiness usually demanded of the types of records sought to be introduced.⁵

One disquieting aspect of the instant case is whether exclusion here is not the result of an unduly restrictive view of the business records exception to the hearsay rule. It is the "business" of the VA to make disability rating decisions and these reports were made, and signed, by...