The opinion of the court was delivered by: POLLACK
This is a Jones Act case tried to the Court and a jury in which a verdict of $99,395.00 was rendered in favor of the plaintiff who was injured while employed on the defendant's ship as a carpenter's mate. The defendant moves pursuant to Rules 59, 60 and 61 of the Federal Rules of Civil Procedure to set aside the jury's verdict as excessive and for a new trial solely on the issue of damages, or, for a reduction of the verdict. The testimony was taken on one day and the case went to the jury and the verdict rendered on the next day.
The defendant contends that the plaintiff's injuries do not justify the jury's award and that defendant was deprived of a fair trial by reason of the use made by plaintiff, on trial, of the classification of the plaintiff by the Marine Hospital (a U.S. Public Health Service hospital) as "permanently not fit for duty" (sometimes referred to herein by the letters "PNFFD"). Plaintiff's counsel used this classification as the equivalent of a total and permanent disability to "go back and be a seaman anymore". "He cannot go back to sea anymore. They took away his papers." Plaintiff's counsel skillfully drove the point home with the reference to "his whole background and training has been as a seaman". "Who would hire him?" "What is he going to do now?" From this counsel argued that plaintiff was deprived for life of the only work he knew how to perform. "He's already lost three years of salary. That is $21,000. He is going to lose another 20 years [his remaining work expectancy] of salary at $7,000. That is $140,000 * * *." To this, plaintiff's counsel added 10% for expectable future salary increases in the industry, making $154,000 of salary losses to be sustained by plaintiff in the future. The jury was also asked to add to these losses an amount for past and future pain and suffering at $5 a day for the rest of plaintiff's life from the date of the accident, or $49,900. Plaintiff's counsel discounted the sum of these amounts at 4 1/2% and came up with $178,300 as the amount which he requested from the jury.
Substantial justice and the avoidance of injustice require a new trial on the issue of damages. The size of the verdict indicates that the jury acted in the belief that plaintiff could never in his lifetime go back to sea or be a seaman, viz., the only gainful occupation he ever knew, had performed in the past, or could reasonably be expected to perform in the future. In the circumstances here and on the basis of what could properly be contended, the verdict is so excessive as to shock the conscience of the Court. To permit this verdict to stand would be a travesty on justice.
Plaintiff, a seaman for 26 years, was injured on February 5, 1966 while assisting a fellow seaman to lower a landing platform into position as the defendant's vessel was docking at Jamaica. The device holding the platform broke. His fellow seaman, an eye-witness, testified that the platform fell against plaintiff, hitting him on the hip and the head - he was not cut, there was no bleeding, "he had a few scratches on his head". A milk box stopped the platform as it fell over against the plaintiff. He was knocked unconscious temporarily. He was then walked to the ship's doctor from whom he received no treatment. He was however sent to the shore hospital where he was X-rayed and nothing was found broken. He received no treatment at the hospital and returned to the ship after two hours. During the voyage back to New York he remained off-duty and when the ship arrived in New York he went to the Marine Hospital where he was examined and placed on out-patient service and visited the hospital at intervals of weeks apart. Some time later, he was taken into this hospital as a bed patient and given traction treatment for his neck and shoulder stiffness. The doctors' notes marked plaintiff as not fit for duty during these periods.
After a further irregular course of treatment over a period of about a year, the doctor at the hospital marked him fit for duty. The plaintiff then went back to work aboard his ship and made three voyages totalling 42 days. He was bothered by noise. He reported to the hospital and again became an out-patient, was examined from time to time, given medication, various pills, and was ultimately given a cervical collar which he wore for about a month. He continued as an out-patient on an irregular schedule for about another year. The hospital again gave plaintiff a fit for duty slip and he worked two voyages totalling 28 days. He again returned to the hospital. He was seen in the psychiatric clinic from time to time in this later period and also in other departments of the hospital - dentistry, social service, ear, nose and throat, genito-urinary, etc. - for complaints for which he was treated having no apparent relationship to the accident or his injury therefrom, e.g., hemorrhoids, etc.
In August 1968, the plaintiff visited the psychiatric clinic of the hospital and the doctor found him depressed, tense, jittery and preoccupied; he was complaining of inability to perform his duties while on the ship. The doctor's notes say that this man seemed to be permanently not fit for duty as an American seaman and that the United States Coast Guard would be notified to take his seaman's papers "for the time being". He further noted that the patient would be continued on out-patient psychotherapy and that he was to return in one month. The final note was "PNFFD (permanently not fit for duty) as of today".
On October 14, 1968 the psychiatry clinic noted that plaintiff visited there and had the same complaints, i.e., dizziness, headache, spots in front of his eyes, hypersensitivity to noise, etc. The doctor's notes are that plaintiff remains classified PNFFD and that he was to return in two months.
On November 25, 1968 the plaintiff presented the same complaints and told the doctor - the record notes - that "he feels that he may feel better if he will go to a smaller town for some months". He was given a return appointment in four months. On December 16, 1968 the psychiatry clinic changed the appointment noting that he was to be seen in three months and again noting PNFFD. On March 25, 1969 the psychiatry clinic noted that plaintiff was still bothered by headache and noise and cannot work even on shore. Again, the notation was PNFFD. He was requested to return in three months.
Plaintiff testified that in the three years between the time of the accident and the trial he had not looked for any kind of work.
The diagnosis of the hospital of plaintiff's condition was post-concussion syndrome. His complaints, all subjective, with the single exception of a Romberg sign in 1966 which was all cleared up by 1969, consisted of headaches, dizziness, pain in the neck on turning the head and on elevating the right shoulder. A skull X-ray series showed "negative skull"; an X-ray of the cervical spine showed everything negative; and an electroencephalogram was reported by the laboratory as normal. Neurological examination at the hospital by the attending expert neuro-surgeon as well as just before the trial by the trial expert neurologist showed no abnormalities.
The treating attending neurologist at the hospital made a diagnosis of labrinthopathy - disturbance of the balance mechanism and injury to the neck and right temporal muscle. He also considered the plaintiff to be suffering from post-traumatic anxiety. The expert brought in by the plaintiff to testify at the trial gave as his opinion that plaintiff initially had sustained a cerebral concussion and that the present picture was a combination of what are called post-concussion symptoms and symptoms of anxiety and depression relating to the persistence of complaints for such a long period of time; but that these were all subjective and not objectively demonstrable - neurological examination showed no abnormalities.
The plaintiff's treating neurologist testified that plaintiff's difficulties are permanent. On this score, the plaintiff's trial expert testified that in dealing with emotional or psychological reactions no one likes to use the term permanent. He said "We assume and hope that they will be remediable". However, he did not think that anyone could safely say that the plaintiff's symptoms as described by plaintiff would be interrupted in the near future; and therefore: "One has to estimate an uncertain prognosis with regard ...