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Gretchen v. United States

decided: February 25, 1980.

JOHN E. GRETCHEN, APPELLEE,
v.
UNITED STATES OF AMERICA, APPELLANT .



Appeal by United States from damage award by United States District Court for the Southern District of New York, Robert J. Ward, Judge, under Public Vessels Act, 46 U.S.C.§§ 781-790, as excessive. Remanded for further findings to facilitate appellate review.

Before Moore, Oakes and Newman, Circuit Judges.

Author: Oakes

The Government appeals from an award made by the United States District Court for the Southern District of New York, Robert J. Ward, Judge, in a suit under the Public Vessels Act, 46 U.S.C. §§ 781-790, which incorporates the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. Plaintiff, the chief mate of the S.S. Washington, a de-mothballed public vessel, sued for injuries sustained at sea in the early morning of October 17, 1977. Liability (for unseaworthiness) was conceded and the court awarded damages to the injured seaman, in the amounts of $300,000 for past and future lost earnings, an award which the Government does not appeal,*fn1 and $1 million for past and future pain and suffering, which the Government appeals as excessive. The Government contends incidentally that it was error, under the Public Vessels Act, 46 U.S.C. § 782, and the Suits in Admiralty Act, 46 U.S.C. § 743, to award interest on the judgment (at 4%) from February 7, 1979 (when the judge handed down his oral findings and conclusions), rather than from February 27 (when the formal judgment incorporating them was entered), or March 9 (when an amended judgment was entered). We reverse and remand for further findings in the case of the award for pain and suffering. We reverse the award of twenty days' interest.*fn2

Judge Ward conducted a four-day bench trial at which he heard witnesses including the appellee himself; the appellee's wife; Dr. Lawrence Kaplan, a neurologist who treated appellee at Mt. Sinai Hospital; Dr. Gerald L. Andreoli, a urologist from Hazelton, Pennsylvania, near appellee's home town; Dr. Harry Sherman, a general and traumatic surgeon; Eugene P. Spector, who testified as to maritime wages, pensions, and other benefits and practices; and Dr. Howard Balensweig, an orthopedist who testified for the Government. The trial judge also had before him the deposition of Army Sergeant Edward J. Meyers, who was an eyewitness to appellee's injury and administered first aid to him for the thirty-six hours appellee was on board the S.S. Washington and before he could be helicopter-lifted to a mainland hospital for further care.*fn3 Exhibits included hospital records from Addenbrooke's Hospital, Cambridge, England, where appellee was admitted on October 19 at 5:00 a. m.; the Hospital of the University of Pennsylvania where he was admitted from Addenbrooke's on November 29, 1977, and discharged on December 3, 1977; the Mt. Sinai Hospital, New York, New York, where he was treated from February 13-17, 1978; and Saint Joseph Hospital, Hazelton, Pennsylvania, where he was treated from December 3, 1978, to December 12, 1978.

In connection with this review, we have read all the testimony and examined these same records. We do not, nor could we if we so desired, upset in any way the judge's extensive findings dealing with the injuries and pain and suffering therefrom. As will be seen, they set forth a picture of a terrible crushing injury which will leave appellant with disability, pain, suffering, discomfort, and inconvenience for the rest of his natural life, the expectancy of which (from the date of trial) is 20.1 years (7,336.5 days). Nor do we take issue with the judge's own evaluation that "this case . . . has certain unique ingredients which I really can't, as I think back, find all combined in any single case." Indeed, he went further, saying that "I cannot, as I sit here, recall a case where there was any more prolonged and more severe initial pain and suffering than I envision having been suffered by Mr. Gretchen during those first 36 hours aboard the S.S. Washington . . . ." Our independent examination of cases involving substantial awards has afforded little basis for a comparative evaluation of the award here, nor has counsel been able to help us in this respect.*fn4 We nevertheless remand because we are unable to give the award any meaningful judicial review.

The injury occurred when cargo lashings gave way in heavy seas and appellee, a very active, healthy, well-conditioned man, was pinned on the deck between a "CONEX box" (a cargo container) six to eight feet square and weighing about 2,175 pounds, and a two-and-a-half-ton Army truck. His body seemed to Sgt. Meyers to "cave in," his "shoulders touched"; the court found he had a "severe crushing." In the process, numerous ribs were broken, his pelvis shattered, and his urethra lacerated, he went into and out of shock and unconsciousness several times, for two or three minutes at a time, he thought he was going to die (as did the Sergeant, who in Vietnam had seen seventeen men die), and his pain was such that he was screaming despite four morphine administrations. Because he could not urinate, the Sergeant attempted to make and insert a handmade catheter, but this could not be inserted because of the pain. Hence, appellee went without water. He remained aboard ship in this condition for thirty-six hours before he could be airlifted to a United States Air Force base in the Azores, from which he was taken to the United States Air Force base in Wiesbaden, West Germany, then to Lakenheath, Cambridgeshire, where ultimately he entered Addenbrooke's Hospital. The pain in his pelvic area, his right shoulder, his chest, and right hip was still so severe that the epidural analgesia administered to him had no effect. His bladder and urethra were surgically repaired with post-operative chest and liver complications. He continues to have pain in his right hip, his shoulder, his chest, and particularly in his right foot, pain which is with him day and night, and he will have it permanently. Complaints of pain are subjective, of course, but here they have objective causes to which the doctors testified skillfully and in depth and which are discussed below. In addition, he has to wear a diaper day and night because of urethral strictures, he is impotent and incapable of having an erection, he is depressed and, though not suicidal, is a changed person unable to enjoy the social life with his wife, family, and neighbors that he enjoyed previously, or to do the "handyman" type of work around the house that he did previously. A hernia caused by the accident has been surgically repaired.

Objective neurological findings include an absent ankle reflex with diminished sensation to pin-prick, limited straight leg raising and nerve root involvement chiefly in the fifth lumbar and first sacral nerve roots, resulting in a "causalgic syndrome," with, in the words of the neurologist, "an intractable kind of pain the quality of which is mostly a burning sensation." This causalgic syndrome caused him to limp, and resulted in a certain amount of swelling and discoloration of his right foot and demineralization of the bones of the foot and ankle on X-ray, a "reflex sympathetic dystrophy" also known as "Sudeck's atrophy."

Other neurological findings related to the terminal nerve endings to the cavernous venous system of the penis, causing potency problems. Urological findings were, however, more specific. He has stricture formation in his membranous urethra, about or near the prostate, affecting his ability to urinate and causing him on standing or in stress to lose varying amounts of urine. This in turn makes him prone to infection in the area, and the pathophysiologic process is ongoing; it can be relieved every three or four years with surgical dilation but cannot be eliminated. His inability to obtain an erection the urologist said he would never have a "complete" one is owing to a disruption of the retropubic veins and the veins coming from the penis, "almost totally negating the penile venous flow," accompanied with a disruption from the crushing injury to the integrity of the nerve erigents.

Skeletally, he was found to have markedly diminished respiratory expansions and breath sounds on the right, tenderness over the right upper posterior ribs, a decrease in the normal forward curve of the lower back with tight muscles and limited anterior posterior motion and lateral motion much more limited on the right than the left, all motion accompanied by pain. The Lasegue and straight leg-raising tests, both standard objective tests, as well as the Patrick test, were all severely positive, demonstrating sacroiliac joint damage. Flexion, extension, abduction, and internal rotation were all "markedly restricted" on the right and "moderately restricted" on the left. X-rays showed normal healing of the rib fractures but permanent asymmetry of the pelvic ring due to uniting of the multiple pelvic fractures in poor position. This causes a tilt on the left which has not yet had but will have an effect on the acetabula or hip joint sockets. He has atrophy in both his right biceps and right leg muscles, as well as inflammation of the C-6 nerve root causing decreased sensation in his right arm.

Expressed in somewhat more lay terminology, appellee walks with a limp and a cane, wears a slipper on his right foot, gets back pain when he sits too long, has trouble with his right arm including numbness, weakness, and pain requiring help in getting on his jacket or coat, and has a partly "frozen" shoulder. Needless to say, there is by no means complete agreement by the experts as to prognosis. Because Judge Ward's findings are not clearly erroneous, we are bound by them and must therefore view the prognosis in a light most favorable to appellee's claim.

Despite all the foregoing, we cannot say as a matter of law how substantial an award for pain and suffering, which includes non-work-related disability, the injuries would support. As the trial judge said, "he suffered and he suffered severely," and will have pain in the future. But, in order to allow for meaningful appellate review, a more detailed explanation of the basis of the award must be provided. The award should be divided into past pain and suffering and future pain and suffering. And, unless the matter is settled in the interim on some other basis such as a system of periodic payments,*fn5 because appellee will have the award for future pain and suffering in a lump sum for present use, there should be applied to it a factor discounting it to present value, the rate of discount to be adjusted for inflation. Chiarello v. Domenico Bus Service, Inc., 542 F.2d 883, 886 n.5 (2d Cir. 1976). While there are dicta in past cases in this circuit approving the practice of leaving lump-sum awards for pain and suffering unadjusted for either inflation or the earning power of money, Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij, 443 F.2d 76, 77 (2d Cir. 1971); Rapisardi v. United Fruit Co., 441 F.2d 1308, 1312 n.7 (2d Cir. 1971), we agree with the court in Chiarello v. Domenico Bus Service, Inc., supra, that it is preferable to take these factors into account. Cf. Dullard v. Berkeley Associates Co., 606 F.2d 890 (2d Cir. 1979) (diversity case applying New York law); Feldman v. Allegheny Airlines, Inc., 382 F. Supp. 1271 (D.Conn.1974), aff'd in part, rev'd in part and remanded, 524 F.2d 384 (2d Cir. 1975) (diversity case where Connecticut law left the question open).

A breakdown of the pain and suffering award into its time elements will, we think, enable us to give the judge's findings more rational review. See Fuchstadt v. United States, 434 F.2d 367, 369-70 (2d Cir. 1970); Rapisardi v. United Fruit Co., supra, 441 F.2d at 1312-13; but cf. Lennon v. United States, 579 F.2d 12 (2d Cir. 1978) (affirming award as not clearly erroneous on the record as a whole). True perhaps, it might be argued that in so obviously speculative an area as determining "pain and suffering," we should not require more of a judge than we do of a jury. But Fed.R.Civ.P. 52(a) does require specific findings, and unlike Gibbs v. United States, 599 F.2d 36, 39 (2d Cir. 1979), the record itself does not make apparent the basis of the award. Admittedly, the case law supports a wide range of discretion in the trial judge; we must "give the benefit of every doubt to the judgment of the trial judge." Dagnello v. Long Island Rail Road Co., 289 F.2d 797, 806 (2d Cir. 1961). It will be helpful, however, if in this type of case the district judges will heed the admonition of Gibbs to "specify the basis for damages in detail in the findings of fact, which, if nothing else, avoids confusion as well as unnecessary litigation on appeal." Gibbs, supra. See also Rapisardi v. United Fruit Co., supra, 441 F.2d at 1311-13. Here, it might even be helpful to have a breakdown for the award for past pain and suffering during the period of time before appellee received hospital treatment, and thereafter to the filing of findings, as well as the amount for future pain and suffering as above set forth. Appellate review in this area, while extremely narrow, must start from a basis of specific facts and conclusions; it cannot be purely arbitrary.

Appellant has presented a substantial basis for a remittitur, but before we can determine the appropriateness and extent of that ...


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