Appeal from a judgment for defendant entered in the United States District Court for the District of Connecticut after trial before M. Joseph Blumenfield, Chief Judge, and a jury. Affirmed.
Kaufman, Chief Judge, Feinberg and Mulligan, Circuit Judges. Mulligan, Circuit Judge (dissenting).
For the private citizen engaged in litigation, the outcome of his lawsuit may profoundly influence the future course of his life whether the issues presented raise questions of constitutional stature and great moment to the Republic, or merely rules of law that allow of limited application and arouse slight jurisprudential interest. In this appeal we consider a single, narrow question of Massachusetts law which will determine whether Guardian Life Insurance Co. (Guardian) can avoid its obligations under four policies issued to Dr. George Robitaille who, subsequent to the issuance of the policies, was diagnosed as having multiple sclerosis. Following a jury trial, Chief Judge Blumenfeld entered judgment for Dr. Robitaille. After careful scrutiny of the facts and the relevant state law, we affirm.
Since a clear understanding of the complex and technical facts is essential to the determination of this appeal, we turn first to the events preceding the litigation. Dr. Robitaille had entered active service as a medical officer in the United States Navy immediately upon his graduation in 1960 from the Tufts University Medical School. According to his testimony at trial, Dr. Robitaille applied for discharge in 1968 but, because of the ongoing hostilities in Vietnam, his application was denied. In 1969, anxious to return to civilian life and to commence the private practice of medicine in Fall River, Massachusetts, he again requested a discharge, and this time his resignation from the service was accepted.
After a complete medical examination by Navy physicians, the doctor was declared in sound health. Accordingly, just prior to his discharge, Dr. Robitaille signed a statement releasing the Navy from responsibility for any medical problems which might develop subsequently. In anticipation of his departure from the service, and on the advice of a local agent for Guardian, Dr. Robitaille purchased four insurance policies:
1. Life Insurance Policy No. 2147543, Face Amount $50,000, with a provision for waiver of premium in the event of total disability, issued July 29, 1969.
2. Disability Income Policy No. G165503, monthly benefit of $800 for total disability, payable for lifetime of the insured, issued Agust 15, 1969.
3. Disability Income Policy No. G165473, monthly benefit of $800 for five years for total disability, with an additional monthly hospital benefit of $400 and accidental death benefit of $1,000, issued August 15, 1969.
4. Professional Overhead Expense Disability Policy No. G164897, monthly benefit of $600 for 12 months, issued June 12, 1969.
In connection with these policies, Dr. Robitaille, who was 34 years old at the time, executed and signed an application, dated June 17, 1969,*fn1 in which he answered questions concerning his medical history. The following questions evoked responses which are at issue in this lawsuit:
8. To the best of your knowledge and belief, have you ever had or been told that you had: (a) a mental or emotional problem requiring the help of a physician or clinical psychologist, dizziness, fainting spells, epilepsy, convulsions, nervous breakdown, recurrent headaches, stroke, or any other disease or disorder of the brain or nervous system?
(e) nephritis, kidney stone, or any disease of the kidneys, bladder, prostate, genital organs, or venereal disease?
Yes. Mild prostatitis in 1967. Treated by Dr. William Urschel, Chief of Urology, Naval Hospital, Newport, R.I.No recurrence since 1967.
(i) anemia, varicose veins or ulcers, phlebitis, disorder of blood?
Yes. Mild saphenous varicosities L leg. No symptoms.
(j) impairment of sight or hearing or any disease or disorder of the skin, ears, eyes, nose or throat?
Yes. Slight bilateral high tone hearing loss secondary to acoustic trauma (gunfire) in Navy 1961. No difficulty, no change in audiograms since then.*fn2
9. Have you had an X-ray, electrocardiogram, blood studies, or other diagnostic test within the past five years?
Yes, as a matter of routine. All normal. Naval Hosp., Newport, R.I.
13. In the past 5 years have you consulted or been treated or examined by any physician or practitioner