Opinion
Civil Action No: 99-3894 SECTION: "J"(1)
January 8, 2001
HEARING ON MOTION
MOTION: MOTION OF DEFENDANT TO EXCLUDE TESTIMONY THAT PLAINTIFF MAY DEVELOP TRAUMATIC ARTHRITIS IN THE FUTURE
GRANTED
The defendant, Illinois Central Railroad Company ("Illinois Central"), moves for an order excluding any argument by the plaintiff, Cedric Kendrick ("Kendrick"), or testimony by his physician, Dr. Jefferson Kaye, that Kendrick may develop traumatic arthritis in the future. Dr. Kaye has testified in his deposition that there is an increased possibility, but not a probability (not over 51%), that Kendrick will develop traumatic arthritis in the future as a result of his alleged injury.
Kendrick recognizes that the general rule excludes such testimony, but argues that a different rule is applicable to FELA/Jones Act cases. He cites Sentilles v. Inter-Caribbean Shipping Corp., 80 S.Ct. 173 (1959) and its lower court decision, Inter-Caribbean Shipping Corporation v. Sentilles. 256 F.2d 156 (5th Cir. 1958), but these decisions do not support the position urged by Kendrick.
The issue raised by Sentilles was whether his active pulmonary tuberculosis was caused by a trauma at sea, by his diabetes or some other problem. Sentilles was a refrigeration engineer on a banana boat on a voyage from Columbia to Miami. During a period of heavy seas and while Sentilles was crossing the deck, the vessel fell away beneath him. He fell and was washed up against the chains at the edge of the ship about 24 feet away. 256 F.2d at 156. His skin was scratched and scraped on the deck. His shirt was ripped open and his pants torn. Within a day or so he developed a cough and flu like symptoms and he complained of head and chest pains. 256 F.2d at 158. He wound up in New Orleans within about two weeks of the vessel's arrival in Miami, where he sought treatment from Dr. Charbonnet, who had treated him for over twenty years. Dr. Charbonnet referred him to Dr. LeDoux, a specialist, who diagnosed Sentilles with active pulmonary tuberculosis. 256 F.2d at 157.
Dr. LeDoux testified that a light blow on the chest would be unlikely to spread the tuberculosis, but a severe blow would be certainly more likely. The tuberculosis might also have been aggravated by Sentilles' diabetes. 256 F.2d at 157. Dr. Jacobs, who saw Sentilles at the U.S. Public Health Hospital, said either diabetes or trauma, or a combination thereof could have aggravated the preexisting tubercular condition. 256 F.2d at 157. A third doctor, who did not examine Sentilles, but reviewed the records and the testimony of the other physicians, said that the fall on the vessel probably aggravated Sentilles' condition. 256 F.2d at 157-58. He admitted, however, that other factors might have aggravated the tuberculosis and he had no way of telling which factor brought on the tuberculosis.
There was a jury verdict for Sentilles. The Fifth Circuit reversed. It cited the general rule that medical testimony as to the possibility of a casual relation between an accident and the subsequent condition was not sufficient alone to establish the relation. 256 F.2d. at 158. Sentilles was not able to prove that the aggravation was probably caused by the shipboard incident; he was only able to show that it was a possibility, Judge Rives dissented. He said that the jury was not limited to the opinions of the physicians. It had a right and duty to consider all the circumstances disclosed by the evidence, Judge Rives said there was substantial evidence to support the verdict. In particular he cited the sequence of events: (1) the trauma on the vessel; (2) onset of the illness within a day or two of the trauma; (3) the illnss was diagnosed as active tuberculosis within two weeks of the trauma; and (4) two months bafore the accident Dr. Charbonnet found no chest difficulties and no reason to suspact tuberculosis. 256 F.2d. at 158.
The Supreme Court reversed and said,
The jury's power to draw the inference that the aggravation of the petitoner's tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively nagated by the proofs.80 S. Ct. at 109. In short the evidence was sufficient to support the verdict. The Supreme Court agreed with Judge Rives' dissent.
In Sentilles the issue was not whether plaintiff might have tuberculosis in the future as a result of the trauma. Dr. Kaye has said there is a possibility that the trauma to Kendrick will produce arthritis in the future, but this has not occurred. This is the only evidence that arthritis might develop. Standing alone it is insufficient to support a verdict that Kendrick will delevop arthritis from the trauma. Sentilles does not change the general rule nor does it create a special rule in a FELA/Jones Act case.
It is ORDERED that the motion of Illinois Central to exclude testimony that Kendrick may delevop may traumatic arthritsis in the future is GRANTED.