Robertson v. Douglas S.S. Co.

• Decision Date: 28 March 1975
• Docket Number: No. 74--1032,74--1032
• Parties: Irby J. ROBERTSON, Sr., Plaintiff-Appellee, v. DOUGLAS STEAMSHIP COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 829

510 F.2d 829

Irby J. ROBERTSON, Sr., Plaintiff-Appellee, v. DOUGLAS STEAMSHIP COMPANY, Defendant-Appellant.

No. 74--1032.

United States Court of Appeals Fifth Circuit.

March 28, 1975.

Rehearing and Rehearing En Banc

Denied June 17, 1975.

Ralph E. Smith, Daniel J. Caruso, New Orleans, La., for defendant-appellant.

William S. Vincent, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RIVES, WISDOM and COLEMAN, Circuit Judges.

WISDOM, Circuit Judge:

Douglas Steamship Company, the defendant-appellant, appeals a district court judgment on a jury verdict that awarded a total of $150,000 damages to Irby J. Robertson, a longshoreman who was injured while working on one of Douglas' vessels. The jury awarded the longshoreman $138,000 in basic damages and $12,000 as compensation for losses due to inflation or the decreased purchasing power of money. We affirm the judgment of the district court with respect to the basic award of $138,000 and we reverse with respect to the $12,000 inflation compensation award.

I.

In November 1970, Irby J. Robertson, a longshoreman employed by Atlantic and Gulf Stevedores, Inc., was injured in two accidents that occurred while he was working in the Port of New Orleans aboard the M/V Inchoma, a vessel owned by the Douglas Steamship Company. The first accident occurred on November 8 when a cargo batten pulled loose while Robertson's gang attempted to stretch a safety net across the hatch where they were working. The cargo batten struck Robertson in the head and left him stunned for several minutes. Dr. Samuel Romano, a physician retained by the stevedore company, examined Robertson and treated him for contusion of the scalp.

On November 10, the day Robertson returned to work, he was injured again. While he was helping to build a landing platform, a large number ¹ of sacks, each filled with 100 pounds of chemical fertilizer, fell on him. The first sack that fell knocked him down into a crouched position so that his knee jammed into his stomach and his body doubled into a knot; the other sacks piled on top of him. Robertson again reported to Dr. Romano. He complained of a contusion above his left eye as well as various pains in his neck, ribs, knee, and ankle.

From November 10, 1970, until January 11, 1971, Robertson remained under Dr. Romano's care on an outpatient basis. On January 11, Dr. Romano discharged Robertson and certified him fit to resume work. Thereafter Robertson made numerous visits to Dr. Romano and complained of various pains related to his injuries. Dr. Romano referred Robertson to a neurosurgeon and to an orthopedic consultant for examination. Neither specialist was able to discover the objective cause of Robertson's pain. Accordingly, Robertson was discharged and received no further treatment from Dr. Romano after June 23, 1971.

In October 1971, the longshoremen were preparing to strike against their employers. Robertson anticipated that he would run short of cash. On his own initiative and without advice of counsel, Robertson settled with Douglas and executed a general release for $2,000. About two months later, Robertson began to suffer epigastric distress in the upper abdomen. Robertson entered Flint-Goodridge Hospital on January 19, 1972 where he was treated for an alleged ulcer-type condition. He was discharged on February 11, but his condition later deteriorated and he was readmitted to the hospital on April 14. Exploratory surgery revealed a fibrous attachment between the transverse colon and the right lobe of the liver. Because the surgeon was interested in the upper rather than the lower abdomen, he did not examine the peritoneal area. He testified however, that Robertson's continuing downhill medical progression led him to believe that the patient was suffering from some condition that he was unable to diagnose.

On August 11, 1972, Robertson entered Touro Infirmary. There his condition was diagnosed as a very rare disease, idiopathic retroperitoneal fibrosis, a scarring of the peritoneal lining in the lower abdomen. The surgeons operated to free the ureter from the fibrous tissue of the peritoneal lining. Robertson's condition further deteriorated and he underwent a second operation, this time to have an osphyotomy tube implanted in the right kidney to prevent drainage. Robertson has undergone extensive hospitalization in connection with this condition and will probably require future hospitalization. His medical expenses to the time of trial amounted to $20,000.

Robertson brought this suit in federal district court and it was tried to a jury. As noted, the jury found his damages amounted to $138,000, but awarded him an additional $12,000 to compensate for losses attributable to inflation. Douglas moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The Company appeals the district court's denial of these post-trial motions.

On this appeal, Douglas Steamship urges three grounds for reversal: first, it contends that the evidence at trial is insufficient to support a finding that Robertson's condition was caused by either accident aboard the M/V Inchoma; second, that the jury instructions concerning the concept of mutual mistake and the release were incorrect; third, that the instructions concerning the effect of inflation and the decrease in purchasing power of money were incorrect.

II.

At trial, Judge Rubin required the jury to present its verdict in the form of answers to interrogatories. One of these interrogatories asked whether 'the M/V Inchoma (was) unseaworthy on November 8 or November 10 or on both dates in a manner that proximately caused Mr. Robinson's (sic) injuries.' The jury answered affirmatively. This interrogatory directed the jury's attention to two questions of fact: the unseaworthiness of the vessel and the causal relationship between the vessel's unseaworthiness and the injuries allegedly sustained by the plaintiff. Douglas contends that the evidence adduced at trial is insufficient to support the jury's finding that Robertson's condition, eventually diagnosed as idiopathic retroperitoneal fibrosis, was attributable to either or both of these accidents.

The thrust of Douglas' argument is that the plaintiff's expert medical testimony was not sufficiently certain to support the jury's conclusion. In assessing the defendant's burden in attacking the verdict, we note first that the trial judge concluded that the evidence was sufficient to allow the case to go to the jury. Moreover, he also concluded that the evidence was sufficient to require the denial of Douglas' motions for judgment notwithstanding the verdict and for a new trial.

The trial court has the initial responsibility and authority to correct erroneous jury verdicts. 'When the ends of justice require it, a federal trial judge has the power and the duty to set aside a jury's verdict, to grant a new trial, or to grant a judgment notwithstanding the verdict.' Stewart v. Gilmore, 5 Cir. 1963, 323 F.2d 389. But the trial judge cannot and here did not substitute his view of the facts for the jury's finding. This Court sitting en banc, in a careful and extensively researched opinion by Judge Ainsworth, established the test to be applied in determining the sufficiency of the evidence to submit a case to the jury when there has been a motion for a judgment notwithstanding the verdict. The Court declared:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. . . . However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, 374--75.

In the case at bar, the relevant evidence consisted of sophisticated medical testimony concerning an extremely rare disease, the causes of which have not been conclusively established by medical science. Since the causes of this rare disease are not entirely known, Robertson's expert witnesses were unable to state with certainty that the traumatic injuries sustained in the November 1970 accidents caused the plaintiff's present condition. Robertson's experts, however, offered their professional opinion that some causal connection between the accidents and the plaintiff's present condition was likely.

Dr. Marks of Louisiana State University Medical School, testified that the present state of medical knowledge prevented his saying with certainty that the accident definitely caused the disease. He noted, however, that one possible cause of retroperitoneal fibrosis is an abnormal release of material from fatty tissue. Dr. Marks testified that such a release can be caused by a simple tortional strain, such as that commonly suffered from a heavy weight falling on one's back; a direct blow to the abdomen is not a necessary element in the causation of such a release. Dr. Marks said that 'when a specific, reasonably severe injury occurs . . . some degree of disruption of tissues was possible, and within a reasonable period of time this type of condition developed, I think it would be very difficult not to relate the two in a...